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.”

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?

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.:

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.”

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.'”

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.”

By , November 03, 2023.

Judge pares down artists’ AI copyright lawsuit against Midjourney, Stability AI — “U.S. District Judge William Orrick dismissed some claims from the proposed class action brought by Sarah Andersen, Kelly McKernan and Karla Ortiz, including all of the allegations against Midjourney and DeviantArt. The judge said the artists could file an amended complaint against the two companies, whose systems utilize Stability’s Stable Diffusion text-to-image technology. Orrick also dismissed McKernan and Ortiz’s copyright infringement claims entirely. The judge allowed Andersen to continue pursuing her key claim that Stability’s alleged use of her work to train Stable Diffusion infringed her copyrights.”

AI Chatbots are scraping news reporting and copyrighted content, News Media Alliance says — “In the published white paper, the trade group also rejected arguments that A.I. bots have simply ‘learned’ facts by reading various sets of data, like a human being would. The group said ‘it is inaccurate’ to form such a conclusion ‘because models retain the expressions of facts that are contained in works in their copied training materials (and which copyright protects) without ever absorbing any underlying concepts.'”

Choreography Copyright Gets Its Due in the Ninth Circuit — “On Wednesday, the Ninth Circuit Court of Appeals revived a copyright lawsuit brought by choreographer Kyle Hanagami (Blackpink, Jennifer Lopez, Britney Spears) against Fortnite publisher Epic Games. Hanagami first sued Epic in March 2022 over the Fortnite emote ‘It’s Complicated,’ which Hanagami claims is an unauthorized copy of the choreography he published for the 2017 song ‘How Long’ by Charlie Puth.”

Why Overbroad State Library Ebook Licensing Bills Are Unconstitutional — “This policy memo explains how federal copyright law supersedes and limits state laws that regulate the licensing of copyrighted works. While states can validly target certain abusive conduct related to the manner in which copyright licenses are negotiated, federal law is clear that states cannot cross the line by dictating the terms of such licenses when they directly implicate the exclusive rights secured by the Copyright Act.”

Entry into force of the new Copyright Law in Myanmar — “Myanmar’s Copyright Law … which was enacted on May 24, 2019, has come into effect on October 31, 2023 … thereby repealing the Myanmar Copyright Act of 1914…. Similar to copyright laws in many other countries, copyright protection in Myanmar is now granted automatically upon the creation of a work. As a result, registering copyrights in Myanmar is considered optional but recommended for enforcement purposes.”

By , October 13, 2023.

Shared fate: Protecting customers with generative AI indemnification — Google wants to be master of its own destiny. In a blog post this week, the company identified seven of its AI-based products for which it will indemnify a user if they get sued because Google’s training data used copyrighted material or if they get sued over the output they generate.

Thaler Appeals D.C. Court Decision Denying Copyright for AI-Generated Art — The first U.S. court decision on copyrightability of AI-generated art is heading to the circuit courts.

Photographer Says Miles Davis Tattoo is Not Fair Use After Andy Warhol Ruling — “A photographer, who is suing celebrity tattoo artist Kat Von D for using his photo of jazz musician Miles Davis as a tattoo for a client, has claimed that the inking is not a fair use of his work — after the U.S. Supreme Court’s ruling on The Andy Warhol Foundation v. Lynn Goldsmith case.”

Capitol Records fights Vimeo copyright protections in Second Circuit — “A dozen record labels asked the Second Circuit Court of Appeals on Thursday to hold Vimeo accountable for copyright infringement, saying the company ignored red flags when employees encountered recognizable recordings on the video-hosting website.”

Game of Thrones AI Completed Books Removed After Being Noted In George RR Martin Lawsuit — “The fan who released finished versions of the Game of Thrones books using AI has removed them after being named in George R.R. Martin’s lawsuit. Recently, Martin and several other authors teamed up to sue ChatGPT’s parent company OpenAI, alleging ‘mass-scale copyright infringement.’ The lawsuit specifically cited the fan who famously used ChatGPT to write finished versions of The Winds of Winter and A Dream of Spring, the final two volumes in Martin’s A Song of Ice and Fire series.”

By , September 29, 2023.

Oversight of the U.S. Copyright Office — On Wednesday, the House Intellectual Property Subcommittee held an oversight hearing on the U.S. Copyright Office. A video of the hearing is available at the link, featuring Register Shira Perlmutter testifying on artificial intelligence, music licensing, Copyright Office modernization, and more. Read Register Perlmutter’s written testimony here.

Of Artificial Intelligence and Untidy Facts: Federal District Court Denies Summary Judgment in AI Copyright Case — Perhaps the first US court decision on the merits to address copyright and AI training, but this one largely leaves the big questions for another day. Read the expert analysis of the decision here, then check out the decision itself here.

Fair Imitation or Infringement? Analyzing the Humans of Bombay Copyright Case — Analysis of a recently filed lawsuit in India by storytelling platform Humans of Bombay against competitor People of India, covering core concepts of India’s copyright law, including fair dealing.

Hollywood’s AI Compromise: Writers Get Protection, Studios Aim for Copyright — Hollywood Reporter’s Winston Cho looks at the AI related terms of the tentative deal reached yesterday between the AMPTP, representing film and TV producers, and the Writers Guild of America. Writes Cho, “Included in the agreement were provisions placing guardrails around the use of generative AI that not only protect writers but also the studios, which are signaling they plan to pursue copyrights of works created in part by AI tools. The deal doesn’t bar the use of AI but restricts how it can be credited and utilized.”

Music publishers double down on copyright claims against X — “If the case gets to court, the dispute will likely focus on the good old copyright safe harbour. X can avoid liability for copyright infringing content uploaded by its users providing it has takedown system in place to deal with infringement and infringers when made aware of such things by copyright owners. X does have a takedown system, but the publishers argue that it is insufficient for the social media company to avoid liability via the safe harbour in the US Digital Millennium Copyright Act. This means that X would have to demonstrate how its takedown system is, in fact, super duper.”

By , September 22, 2023.

Have We Misunderstood Copyright’s Consequences? — A very intriguing new paper from economist Stan Liebowitz. From the abstract: “This paper uses an unusually rich 21st century data set to compare two sets of vintage bestsellers from the early 20th century that, by a circuitous path of copyright law alterations, came to have different copyright treatments. The most striking result is that, on average, copyrighted vintage bestsellers sell almost four times as many copies as public domain vintage bestsellers and this result holds throughout the sales distribution. This result conflicts with the expectation that copyright would restrict sales by allowing the exercise of monopoly power, and instead points to factors such as post-creation investment by publishers as being much more important than previously recognized.”

The Authors Guild, John Grisham, Jodi Picoult, David Baldacci, George R.R. Martin, and 13 Other Authors File Class-Action Suit Against OpenAI — This was the big copyright news driving this week. Check out the Authors Guild page here for more information about the litigation, statements from the plaintiffs and counsel, and a link to the complaint itself.

Advertising on Pirate Sites Outlawed in Ukraine Under New Law — “Under a new law set to be enforced early October, placing advertising on pirate sites will be outlawed in Ukraine. Signed earlier this year by President Volodymyr Zelenskyy, the legislation targets sites that appear on the World Intellectual Property Organization’s WIPO Alert blacklist for systematically ignoring takedown demands.”

Internet TV services under the scrutiny of EU copyright law: CJEU ruling in Ocilion — Discussion of a CJEU case from July concerning an interesting (though technical) copyright issue involving a commercial IPTV service that provides, among other features, cloud recording and storage of TV programs. US copyright fans may see shades of Cablevision and Fox Broadcasting v Dish Network here.