Friday’s Endnotes – 02/09/24

By , February 09, 2024.

Fourth Circuit Finds No Transformative or Noncommercial Use of Ted Nugent Photo in Online Article — Although the court held that the district court’s transformative use finding was inconsistent with Fourth Circuit precedent, it also relied heavily on the Supreme Court’s recent decision in Andy Warhol Foundation v. Goldsmith, making this one of the first appellate court decisions to do so.

Ban Copyright Exploitation In AI Models, Lords Urge UK Gov’t — “The Communications and Digital Committee said Friday that the government should introduce new laws to bring a definitive end to tech firms using copyrighted works without permission while developing artificial intelligence. It said the government ‘cannot sit on its hands’ on the issue, which licensing organizations have since echoed.”

European Publishers Praise New EU AI Law — “More than 200 organizations in Europe’s creative and cultural sectors had lobbied in support of the legislation, arguing that the rapid development of AI has been enabled by the illegal use of copyright-protected works to train the models, and was conducted without any disclosure—or remuneration—to those whose protected work was used.”

Japan Newspaper Group Seeks Copyright Protection from AI — “The Japan Newspaper Publishers and Editors Association submitted an opinion to the Cultural Affairs Agency that a government panel subcommittee’s draft view on copyright protection from generative AI is good to some extent but not enough for full copyright protection for their news content.”

Appeals Court Hears RIAA and Yout in ‘High Stakes’ Stream-ripper Case — “On the surface, this case largely revolves around a seemingly simple question. The problem, however, is that both parties have a completely different answer. Does YouTube employ a technological measure that effectively controls access to copyrighted works? This question brings up all sorts of semantic challenges. What is a measure and when is it technological? What does access mean in this context and under which conditions is it controlled? And if there is such a measure, does Yout.com circumvent it? A few days ago Yout and the RIAA had the chance to explain their reasoning to the Court of Appeals. The hearing was presided over by Judge Carney, Judge Leval, and Judge Sullivan, who critically questioned both attorneys on their views.”

Friday’s Endnotes – 02/02/24

By , February 02, 2024.

Demand for a New Tool That Poisons Generative A.I. Models Has Been ‘Off the Charts’ — Adam Schrader reports at Artnet News, “A new, free tool designed by researchers at the University of Chicago to help artists ‘poison’ artificial intelligence models trained on their images without their consent has proved immensely popular. Less than a week after it went live, the software was downloaded more than 250,000 times.”

Meta used copyright to protect its AI model, but argues against the law for everyone else — “Meta has joined Big Tech cohorts like Google and Microsoft in arguing to the US Copyright Office that the mountain of copyrighted text, imagery, and data scraped for free and used to train AI models is not protected under copyright law. Meta thinks effectively that everything available on the internet falls under ‘fair use,’ because AI models like Llama do not exploit or reproduce copyrighted works. (Although they, in fact, very often, do). However, a few months before pushing this copyright stance, Meta attempted to argue in favor of broader copyright protections for Llama.”

Publishers Association and Publishers’ Licensing Services welcome Lords Committee AI report — “The report says the government ‘cannot sit on its hands’ while LLM developers exploit the works of rights-holders. It criticises tech firms for using data without permission or compensation, and says the government should end the copyright dispute ‘definitively’ including through legislation if necessary. It calls for greater transparency for rights-holders to see if their work has been used without consent and for investment in new datasets to encourage tech firms to pay for licensed content, noting there is ‘compelling evidence’ that the UK benefits economically, politically and societally from its ‘globally respected’ copyright framework.” Link to full report in article.

Why the Carlin Estate’s Lawsuit Over Fake Comedy Special May Be DOA — Copyright litigator Aaron Moss examines the lawsuit from Carlin’s daughter and estate over the purportedly AI-generated comedy special from the deceased comedian. Moss explains why he believes the lawsuit “faces tough challenges in court.”

US Copyright Office Launches Review of the MLC and DLC’s Designations — The Music Modernization Act overhauled licensing of musical works for use by online streaming services by requiring the Copyright Office to designate a non-profit organization to collect, administer, and distribute streaming royalties to songwriters and music publishers. The law also requires the Office to review that designation every five years; the first such review was launched by the Office this week.

Friday’s Endnotes – 01/26/24

By , January 26, 2024.

Copyright Alliance Applauds Outcomes of Two Groundbreaking Fair Use Cases Involving ‘Appropriation Artist’ Richard Prince — “According to Kupferschmid, ‘The January 25 judgments in the Graham and McNatt copyright infringement cases involving Richard Prince are among the most important fair use decisions in decades. The outcome in both cases is extremely significant and provides us with insights into how last year’s Supreme Court decision in Andy Warhol Foundation v. Goldsmith will impact future copyright cases involving fair use.'”

George Carlin Estate Sues Makers of AI Comedy Special for Likeness Theft and Copyright Infringement — “The creators of ‘I’m Glad I’m Dead’ say they used AI to scrape hours of Carlin’s comedy specials to create their facsimile. And now in the lawsuit, filed Thursday in a California federal court, Jerold Hamza, executor of Carlin’s estate, break down how this infringes on Carlin’s copyrights and his likeness rights.”

The Sleepy Copyright Office in the Middle of a High-Stakes Clash Over A.I. — “The agency plans to put out three reports this year revealing its position on copyright law in relation to A.I. The reports are set to be hugely consequential, weighing heavily in courts as well as with lawmakers and regulators.”

Don’t Cut, Paste, Copyright: Bonding over Borrowed Words — “UIRC, a property management company overseeing leases for the US General Services Administration, sought copyright protection for two documents it produced related to a bond offering: a private placement memorandum (PPM) and an indenture of trust. UIRC did not create these documents from scratch but instead borrowed most of the language from the Idaho Housing and Finance Association. Nevertheless, UIRC secured copyright registrations by explicitly focusing on the “additional and revised text” it contributed, not the ‘standard legal language.’ While aiding UIRC in transactions utilizing its copyrighted documents, William Blair concurrently assisted a third party in a similar transaction. During that transaction, William Blair used UIRC’s copyrighted PPM and indenture of trust documents. In response, UIRC filed a copyright infringement suit against William Blair.”

Is AI’s Copyright World Flat, or Will AI Flatten the Copyright World? — “Is offshoring the training of AI a credible and efficient response to minimize copyright compliance risks or is offshoring merely a theoretical argument designed to both influence lawmakers and for government relations purposes?”

Friday’s Endnotes – 01/19/24

By , January 19, 2024.

A New Nonprofit Is Seeking to Solve the AI Copyright Problem — “On Jan. 17, Newton-Rex announced a new type of effort to incentivize AI companies to respect creators. He launched a nonprofit, called ‘Fairly Trained,’ which offers a certification to AI companies that train their models only on data whose creators have consented. Elevating companies with better practices around sourcing their training data, he hopes, will incentivize the whole ecosystem to treat creators more fairly.”

When is a derivative work original and thus protectable by copyright? Classicist’s critical edition makes its way to Luxembourg in fresh Romanian CJEU referral — “So far, the CJEU has tackled derivative works from the perspective of infringement, not copyright subsistence. Examples of cases concerning derivative works abound: some concern actual transformations, e.g., Painer (photo-fit) and Deckmyn (parody); others relate to incorporation, e.g., Pelham (music sampling) and Renckhoff (downloading and use of photograph). When the CJEU decides Institutul G. Călinescu, it will be required to tackle the question of what makes a derivative work protectable and what ‘freedom’ and ‘creativity, both cumulative requirements under the EU originality test, mean in this context.”

4 More Contested Cases Before the Copyright Claims Board — “In the last three months, some 14 claim responses have been filed in 12 cases. While this isn’t a large volume for a regular court, for the CCB this represents a serious uptick in participation by respondents, in particular by businesses. As such, it’s worth taking a few minutes to examine some of these cases and see what kinds of claimants and respondents are before the CCB and what kind of issues the board is being asked to address.”

Anthropic fires back at music publishers’ AI copyright lawsuit — “The publishers asked the court in November for a preliminary injunction to block the use of their copyrighted material to train Claude and force the company to implement ‘guardrails’ against reproducing their lyrics. Anthropic responded on Wednesday that it already has guardrails to prevent Claude from generating copyrighted material. ‘If those measures failed in some instances in the past, that would have been a ‘bug,’ not a ‘feature,’ of the product,’ Anthropic said.”

GitHub Copilot copyright case narrowed but not neutered — “The judge overseeing the AI code-copying case filed against GitHub, OpenAI, and Microsoft has dismissed some but not all of the aggrieved developers’ claims, leaving the plaintiffs a more limited but still potentially potent opportunity to challenge the alleged algorithmic reproduction of their source code.”

Friday’s Endnotes – 01/12/24

By , January 12, 2024.

Meta Admits Use of ‘Pirated’ Book Dataset to Train AI — “The Books3 dataset has a clear piracy angle. It was created by AI researcher Shawn Presser in 2020, who scraped the library of ‘pirate’ site Bibliotik…. While OpenAI and Meta are very cautious about discussing the subject in public, Meta provided more context in a California federal court this week. Responding to a lawsuit from writer/comedian Sarah Silverman, author Richard Kadrey, and other rights holders, the tech giant admits that ‘portions of Books3’ were used to train the Llama AI model before its public release.”

OpenAI’s copyright conundrum pits fair use precedent against an ‘impossible’ hurdle — “It’s unclear to what extent existing copyright law speaks to AI, and the process of ingesting existing material to train powerful models that aim to generate and capture new types of value. But in a tech industry move that by now seems familiar, AI companies are acting as if their permissive interpretation of the law is the natural mode of engagement, and that restrictions don’t apply to them until they are proven wrong.”

Shake Shack shakes off typeface breach of contract claim — Chicago lawyer Evan Brown analyzes a recent court decision involving the use by the burger chain of a proprietary font for use in its logos and signage. An interesting issue for copyright nerds.

U.S. Copyright Office Activities in 2023: A Year in Review — The Copyright Alliance summarizes the productive work of the US Copyright Office over the past 12 months, including detailed stats related to the work of the copyright small claims tribunal, the Office’s rulemaking, and policy work.

AI Image Generators Are Spitting Out Copyrighted Characters, Raising Possibility of Catastrophic Lawsuit — “Strikingly, the pair didn’t even need to directly invoke the name of a popular movie to come up with uncanny images of Nintendo’s Mario or a believable screencap of the Disney-owned Star Wars franchise’s Darth Vader. Even just entering the word ‘screencap’ came up with images that ‘closely resemble film frames’ from the Star Wars, Marvel and Frozen franchises.”

Friday’s Endnotes – 01/05/24

By , January 05, 2024.

Opinion: AI comes for the journalists — Thought-provoking piece from law professor Seán O’Connor. “Ultimately, generative AI is engaged in exactly the opposite of what human learning is supposed to achieve. Rather than mastering the styles of other experts to develop new and better ones, it is a snaking hose flailing around uncontrollably, spewing thoughtless sequences of text based solely on probabilities that one word comes after another in human expression.”

AI and Copyright Law in 2023: Federal Government Activities — AI moved to the forefront of just about everybody’s policy agenda in 2023, and those involved with copyright policy were no exception. The Copyright Alliance’s Rachel Kim provides a comprehensive overview of notable developments over the past year in the US Copyright Office, Executive Branch, and Congress.

How copyright law could threaten the AI industry in 2024 — Lawsuits challenging the use of copyrighted works to train many of the leading generative AI models on the market also exploded over the past year. Reuters’ Blake Brittain takes a peak at what we may expect from the US courts over the next twelve months.

Silenzio! ‘Anna’s Archive’ Shadow Library Blocked Following Publishers’ Complaint — “Appearing in the wake of the Z-Library shutdown late 2022, shadow library ‘Anna’s Archive’ now bills itself as the ‘largest truly open library in human history.’ A complaint filed in December 2023 by the Italian Publishers Association, which represents publishers of books, scientific journals, and digital content, paints a somewhat different picture. As a result, telecoms regulator AGCOM has issued immediate blocking instructions to ISPs.”

AI Copyright Hacking Exemption Would Boost Trust, Advocates Say — A graduate student has proposed, as part of the current rulemaking to permit circumvention of technological protection measures on copyrighted works, an exemption permitting researchers to strip technical locks from AI models themselves to research bias. Will we see AI companies suddenly realize the value of copyright protection?

Friday’s Endnotes – 12/15/23

By , December 15, 2023.

A first look at the copyright relevant parts in the final AI Act compromise — “On Friday evening, after 38 hours of negotiations, representatives of the European Parliament, EU member states and the European Commission reached a provisional agreement on the proposed AI Act. The deal reached on Friday night now paves the way for the adoption of the AI Act in the first half of 2024, bringing to an end a legislative process that has lasted more than two and a half years and during which the scope of the Act has been significantly expanded.”

Africa IP Highlights 2023: copyright — Over at IPKat, Chijioke Okorie recaps major legislative, judicial, and governmental copyright developments from the past year in Africa.

Meta used copyrighted books for AI training despite its own lawyers’ warnings, authors allege — The allegations, concerning pirated books that make up part of the “Pile” dataset, which Meta acknowledges it used to train its first version of its LLaMa AI model, are included in an amended complaint from plaintiffs in one of the numerous lawsuits targetting the use of copyrighted works to train AI models that have been filed in the US over the past year.

Examing Copyright — Zvi Rosen’s thorough study of the US Copyright Office’s copyright examination practices has recently been published in the Journal of the Copyright Society. As the abstract explains, “This piece presents a history of copyright examination, empirical data and findings on what has been rejected over the past sixty years, and a proposal based on these findings for improving the efficiency of the copyright registration system going forward. Following the Supreme Court’s decision in the 4th Estate case there has been new concern about reducing examination times, and I propose a system which would make examination automatic for types of works with low rejection rates, upon the filing of an affidavit which would make clear that the work has no unusual features which would tend to lead to rejection.”

Copyright Office Affirms its Fourth Refusal to Register Generative AI Work — “On December 11, the Review Board of the U.S. Copyright Office (USCO) released a letter affirming the USCO’s refusal to register a work created with the use of artificial intelligence (AI) software. The decision to affirm the refusal marks the fourth time a registrant has been documented as being denied the ability to obtain a copyright registration over the output of an AI system following requests for reconsideration.:

Friday’s Endnotes – 12/08/23

By , December 08, 2023.

Sandra Day O’Connor’s Copyright Legacy — The Copyright Alliance’s Rachel Kim takes a look at three major copyright decisions penned by Justice O’Connor, who passed away December 1: Harper & Row Publishers v. Nation Enterprises, Feist Publications v. Rural Telephone Service Co., and Stewart v. Abend.

Parliamentary head calls for digital copyright law for web payments — “Turkish parliament’s digital media commission head has advocated for the immediate implementation of digital copyright law in a bid to secure fair compensation for media outlets in Türkiye.” This follows on successful laws in places like Canada, Australia, and Europe.

AAP Calls Big Tech’s AI Arguments ‘Nonsense’ — “In a second round of comments submitted to the U.S. Copyright Office this week, the Association of American Publishers insists that copyright law protects authors, publishers, and creators from the unauthorized appropriation of their works by AI developers and slammed assertions by the tech industry that fair use permits developers to use copyrighted works to train their systems without permission or compensation.”

SCOTUS ruling could impact spats over Mariah’s ‘Christmas,’ Tupac tune — “The U.S. Supreme Court will decide in coming months how damages should be calculated when copyright infringement that happened long ago is only recently discovered, and its decision could impact high-profile disputes involving popular music.”

Generative AI could face its biggest legal tests in 2024 — “AI has been eating the world this year, with the launch of GPT-4, DALL·E 3, Bing Chat, Gemini, and dozens of other AI models and tools capable of generating text and images from a simple written prompt. To train these models, AI developers have relied on millions of texts and images created by real people—and some of them aren’t very happy that their work has been used without their permission. With the launches came the lawsuits. And next year, the first of them will likely go to trial.”

Friday’s Endnotes – 12/01/23

By , December 01, 2023.

Google to pay Canada’s “link tax,” drops threat of removing news from search — “Google has agreed to pay Canadian news businesses $100 million a year to comply with the country’s Online News Act, despite previously saying it would remove Canadian news links from search rather than make the required payments. … ‘Google will contribute $100 million in financial support annually, indexed to inflation, for a wide range of news businesses across the country, including independent news businesses and those from Indigenous and official-language minority communities,’ Minister of Canadian Heritage Pascale St-Onge said in a statement today.”

Artists take new shot at Stability, Midjourney in updated copyright lawsuit — “Illustrators Sarah Andersen, Kelly McKernan and Karla Ortiz initially sued the companies in January, in one of the first of several lawsuits that have been filed by copyright owners against tech companies over the alleged use of their work in AI training. [Judge] Orrick found flaws with some of the artists’ arguments, including that the companies’ AI output infringes their copyrights, but he left intact their core claim that the AI training process violates their rights. The plaintiffs reasserted their claims on Wednesday, now joined by artists H. Southworth, Grzegorz Rutkowski, Gregory Manchess, Gerald Brom, Jingna Zhang, Julia Kaye and Adam Ellis.”

Beijing Internet Court Recognizes Copyright in AI-Generated Images — “The Court stated that from the time the plaintiff conceived the image involved in the case to the final selection of the image involved, the plaintiff made a certain amount of intellectual investment, such as designing the presentation of characters, selecting prompt words, arranging the order of prompt words, and setting relevant parameters and so on. The images involved in the case reflected the plaintiff’s intellectual investment, so the images involved in the case met the requirements of ‘intellectual achievements.'”

Copyright’s Lost Art of Substantial Similarity — From Sandra Aistars: “This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense. The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts’ ability to properly evaluate whether the use of appropriated material in a second work is justified, or whether expression has been taken from the first work for some other (infringing) purpose, is compromised. If courts fail to properly understand works because they do not fully analyze basic infringement claims, it can also affect later users and owners of artworks.”

“Please regulate AI:” Artists push for U.S. copyright reforms but tech industry says not so fast — “The nation’s top copyright official hasn’t yet taken sides. She told The Associated Press she’s listening to everyone as her office weighs whether copyright reforms are needed for a new era of generative AI tools that can spit out compelling imagery, music, video and passages of text. ‘We’ve received close to 10,000 comments,’ said Shira Perlmutter, the U.S. register of copyrights, in an interview. ‘Every one of them is being read by a human being, not a computer. And I myself am reading a large part of them.'”

Friday’s Endnotes – 11/17/23

By , November 17, 2023.

Why I Just Resigned From My Job in Generative AI — Ed Newton-Rex penned the following essay after stepping away from his post as VP of Audio at Stability AI. “Companies worth billions of dollars are, without permission, training generative AI models on creators’ works, which are then being used to create new content that in many cases can compete with the original works. I don’t see how this can be acceptable in a society that has set up the economics of the creative arts such that creators rely on copyright.”

Column: AI investors say they’ll go broke if they have to pay for copyrighted works. Don’t believe it — LA Times columnist Michael Hiltzik writes, “Followers of high finance are familiar with the old principle of privatizing profits and socializing losses — that is, treating the former as the rightful property of investors and shareholders while sticking the public with the latter. It’s the principle that gave us taxpayer bailouts of big banks and the auto companies during the last recession. Investors in artificial intelligence are taking the idea one step further in fighting against lawsuits filed by artists and writers asserting that the AI development process involves copyright infringement on a massive scale.”

Tenth Circuit Contributes Clarity to Contributory Liability in Copyright Infringement — “The Tenth Circuit dismissed the district court’s limitation regarding the third factor, namely that the defendant must have caused or contributed to the ‘initial’ infringement. The Court noted that such a qualification would mean that ‘contributory infringement liability would rarely, if ever, lie for ongoing, repeated infringements.'”

No Step-Free Copyright Exceptions: The Role of the Three-step in Defining Permitted Uses of Protected Content (including TDM for AI-Training Purposes) — From Eleonara Rosati: ” A debated issue is whether a court, having established that the relevant conditions of an applicable [exception or limitation] under national law are prima facie satisfied, is also required to assess if the unauthorized act in question passes the [three-step test] to determine if that particular act is in fact outside the control of the concerned rightholder. This study addresses this question, which is ultimately answered in the affirmative.”

Copyright Exceptions and Digital Exhaustion addressed by the European Court of Human Rights (yes, the one in Strasburg!) — “Over the last decades, European lawyers got used to the – at times remarkable and even forceful – interventions of the Court of Justice of the EU (CJEU) in copyright law. But last year, one supranational interference with copyright law surprisingly did not come from Luxemburg, but from Strasbourg: the judgment in Safarov v Azerbaijan.”

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