Friday’s Endnotes – 03/24/23

By , March 24, 2023.

Internet Archive faces skeptical judge in publishers’ copyright lawsuit — “But it ‘elides the issue to say that this case is about the ability of a library to lend a book that it owns,’ Koeltl said. ‘Does the library have the right to lend a book that it owns? Of course! That’s not the issue in the case.’ Koeltl said earlier landmark decisions on fair use imply that copying and distributing entire books to the public would not be protected by the doctrine. ‘You avoid the question of whether the library has the right to reproduce the book that it otherwise has the right to possess, which is really at the heart of the case,’ Koeltl told Gratz. ‘The publisher has a copyright right to control reproduction.'”

When Copyright Law Limits Your Testamentary Freedom: Statutory Heirs Hate This One Trick . . . — “[N]o matter how or when you terminate, one thing is clear: under the Copyright Act, an author’s statutory heirs (heirs defined by statute — namely spouse, child, or grandchild) inherit the termination right — whether the author wanted them to or not. That’s right. You can meticulously draft an estate plan and even disinherit your family, but that will not circumvent their inalienable right to terminate a copyright grant made inter vivos (meaning, during one’s lifetime).”

Copyrights Are Murky for Laws Referring to Outside Safety Codes — “NFPA, along with the American Society for Testing and Materials and the American Society for Heating, Refrigerating, and Air-Conditioning Engineers, filed suit against Public Resource in D.C. federal court in 2013 over more than 250 different regulatory standards they’d developed that were incorporated into law.” The case is now back in front of the DC Circuit Court of Appeals for the second time.

Can you copyright a rhythm? Inside the reggaeton lawsuit that could shake the pop world — “With the release of their song Fish Market in 1989, the Jamaican duo Cleveland “Clevie” Browne and Wycliffe ‘Steely’ Johnson inadvertently changed the course of pop music. The track featured the first known example of what would come to be known as a ‘dembow’ rhythm – the percussive, slightly syncopated four-to-the-floor beat that travelled from reggae to become the signature beat of reggaeton, today the world-conquering sound of Latin American pop.”

Adobe built its Firefly AI art generator to avoid bias and copyright issues — “Copyright is a particularly thorny issue for generative AIs. StabilityAI, the makers of Stable Diffusion, is currently being sued by a collection of artists and the stock image service Getty Photos for using their photos to train Stable Diffusion without licensing them. The example images where Stable Diffusion creates a blurry Getty-like logo are particularly damning. Adobe has sidestepped these kinds of copyright problems by training Firefly on hundreds of millions of Adobe Stock images, as well as openly licensed and public domain content. It protects creators from any potential copyright problems, especially if they intend to use generated content for commercial purposes.”

Friday’s Endnotes – 03/17/23

By , March 17, 2023.

The 11th Circuit Joins the Split by Refusing to Limit Copyright Damages — “Enter the Eleventh Circuit. After confirming its discovery rule governs and assuming the timeliness of the plaintiff’s claims, the Eleventh Circuit took the side of the Ninth Circuit by holding a copyright plaintiff may recover retrospective relief for infringement occurring more than three years before filing suit so long as the claim is timely under the discovery rule.”

To protect human artistry from AI, new safeguards might be essential — T Bone Burnett and Jonathan Taplin write, “Surely, the world has enough formulaic artistic content already. What’s needed: keeping the spigot of original ideas and new thoughts open — to build a culture that goes beyond what is already found on the internet and can be enriched by artists who might grow in ways no AI could predict.”

Why a State-Based Overhaul of US Copyright Law is a Bad Idea — Zvi Rosen writes, “In direct violation of the Constitution, legislators in nearly a dozen states are attempting to subvert the uniform nature of federal copyright law with a state-enforced approach to copyright protections governing distribution of digital library books. These patchwork interventions, however, would harm both the copyright holders and the public by stifling e-book accessibility in the long run.”

Operation 404: 11 Arrests, Hundreds of Pirate Sites, Apps & Domains Blocked — Torrentfreak’s Andy Maxwell reports, “Brazilian authorities are reporting a new wave of action as part of anti-piracy initiative ‘Operation 404’. With support from the UK’s Police Intellectual Property Crime Unit, MPA Latin America, and the Entertainment Software Association, 200 illegal streaming and gaming sites, 128 domains and 63 music apps are reported blocked. Raids on locations across Brazil led to 11 arrests.”

U.S. Copyright Office says some AI-assisted works may be copyrighted — “Building on a decision it issued last month rejecting copyrights for images created by the generative AI system Midjourney, the office said copyright protection depends on whether AI’s contributions are ‘the result of mechanical reproduction,’ such as in response to text prompts, or if they reflect the author’s ‘own mental conception.'”

Friday’s Endnotes – 03/10/23

By , March 10, 2023.

Books are Not Floor Wax and Road Salt — “Although the Connecticut bill does not require publishers to license to libraries in the state, it contains several provisions defining various publishers’ licensing models as ‘unfair trade practice,’ which is tantamount to a state compulsory license, which means H.B. 6829 is preempted by the Copyright Act. So, it has something to do with copyright law.”

The Training Wheels are Off: The Copyright Implications of Training Generative AI — “AI’s myriad of applications all depend on the strength and quality of the algorithm, which relies on training data. Several recent, high-profile lawsuits raise the issue of whether such training algorithms violate copyright law’s restrictions on creating derivative works without the creators’ consent.”

Some Thoughts on Five Pending AI Litigations — Avoiding Squirrels and Other AI Distractions — A deeper dive into current lawsuits involving AI and copyright and how each may shed light on a different aspect of copyright law.

You Are Not a Parrot. And a chatbot is not a human. And a linguist named Emily M. Bender is very worried what will happen when we forget this. — Generative AI models raise challenging questions regarding copyright law. But along with grasping those issues, it’s helpful—maybe necessary—to contemplate deeper questions involved. New York features writer Elizabeth Weil does just that in this piece profiling computational linguist Bender.

Leader of Illegal Copyright Infringement Scheme Sentenced to 5 ½ Years’ Imprisonment — From the DOJ: “As the Indictment set forth, from about March 2016 until at least November 2019, Carrasquillo along with his co-defendants operated a large-scale internet protocol television (IPTV) piracy scheme in which they fraudulently obtained cable television accounts and then resold copyrighted content to thousands of their own subscribers, who could then stream or playback content. . . During the period of their scheme, the defendants earned more than $30 million.”

Friday’s Endnotes – 03/03/23

By , March 03, 2023.

The Copyright Claims Board Decides its First Case — Less than a year after the copyright small claims tribunal was created from scratch, it has issued its first final determination. Jonathan Bailey takes a detailed look at the decision at PlagiarismToday, calling it “an excellent illustration of what the CCB is meant to be used for and the likely direction it will head in future judgments.”

A Tale of Black Resistance through Collage Artwork — “Every year, the Copyright Office takes this opportunity to recognize the impact of Black artists and their creations as well as the significant role that the copyright system plays in protecting them. As part of this year’s celebration, Office staff sat down with Dakarai Akil, a dynamic, Los Angeles-based collage artist, for a conversation about collage art, creative process, identity, and Black resistance. Akil has engaged with the copyright system, and over the span of his career, he self-published three art books and had his work published in The New York Times, Wired Magazine, and Readers Digest.”

Generative Artificial Intelligence and Copyright Law [PDF] — The Congressional Research Service, an excellent resource not just for the legislative branch but the general public as well, recently published this brief but insightful overview of the key copyright issues raised by generative AI.

Circuit Split on Larger Copyright Damages Invites Forum Shopping — “The Second Circuit ruled in 2020 that the Copyright Act’s statute of limitations prevents plaintiffs from seeking damages for infringement that occurred more than three years before the lawsuit was filed. But the Ninth Circuit found in 2022 that the limitation doesn’t bar a plaintiff from seeking damages from infringement before that time frame. The Eleventh Circuit is now the only other appeals court to address the issue—siding with the Ninth Circuit.”

‘Photoguard’ Stops Your Pictures Being Manipulated by AI — “A team of researchers led by computer professor Aleksander Madry at Massachusetts Institute of Technology (MIT) has developed a program called ‘Photoguard’ which denies AI the ability to manipulate an individual’s photos convincingly. In a paper published last month, the research team showed how Photoguard can ‘immunize’ photos against AI edits. The program uses data poisoning techniques to disturb pixels within a photo to create invisible noise in an image. This essentially renders AI art generators incapable of generating realistic deepfakes based on the photos that it system has been fed and trained on.”

Friday’s Endnotes – 02/24/23

By , February 24, 2023.

As she prepares to perform in Carmel, composer Maria Schneider reflects on writing music, and her attempts to protect creative copyright. — “YouTube came out. These companies suddenly discovered the value of data. And the best way to collect data is to have something that keeps people glued onto their screen. And that was music, and film. So a world of pirated stuff was turned into a cash cow for them. That’s when I started becoming outspoken. When I realized that this amazing thing we built is being taken away – not by stronger technology, but by a very illegal thing.”

The Joan Mitchell Foundation Claims Louis Vuitton Infringed the American Artist’s Copyright by Including Her Paintings in Advertisements — “The foundation acknowledged that Louis Vuitton initially reached out to seek permission to use the imagery in the campaign. But after the request was refused the brand went ahead anyway, claimed the foundation. The ad ran online and in newspapers, featuring actress Léa Seydoux with the bag in front of three of Mitchell’s paintings.”

Allen v. Cooper: Back with a (Queen Anne’s) Vengeance — “A casual reading of [Allen v. Cooper] might have led one to reasonably believe that it ended the plaintiffs’ copyright case. After all, the Supreme Court indicated that it affirmed a holding that the [Copyright Remedy Clarification Act] was ‘invalid.’ But, as with so many other issues encountered in the legal realm, much lies below the surface.”

Disney ducks copyright action over animation technology — Thus ends a long brimming dispute against the film studio alleging copyright infringement arising out of the technology used to generate Thanos and many other popular characters appearing in blockbuster movies in recent years.

U.S. Copyright Office Clarifies Limits of Copyright for AI-Generated Works — Franklin Graves discusses a decision by the US Copyright Office this week reissuing a previously issued registration certificate for a graphic novel that excludes registration for the images, which were generated using AI image generator Midjourney. This decision has been closely watched since it is one of the earliest to stake out an official position on AI and copyrightability.

Friday’s Endnotes – 02/17/23

By , February 17, 2023.

Here’s How De La Soul Cleared The Samples For Their Classic Catalog’s Streaming Debut — This week witnessed the tragic loss of David Jolicoeur, one of De La Soul’s core members. The sad news came just weeks before the group’s sample-heavy discography was finally set to become available for streaming. Here, Okayplayer reporter Shawn Setaro speaks with Deborah Mannis-Gardner, the music clearance expert who was responsible for ensuring the legal rights of everyone involved were respected.

The European Commission decides to refer 11 Member States to the Court of Justice of the European Union for failing to fully transpose EU copyright rules into national law — The referral comes nearly two years after the deadline for implementing the EU’s newest directive on copyright law has passed.

Fayetteville’s Blackbeard shipwreck filmmaker fires back in new court case — The Supreme Court’s 2020 decision in Allen v. Cooper did not end Rick Allen’s lawsuit against the state of North Carolina for using his copyrighted footage of the famed pirate ship without his permission. Allen has now filed an amended complaint that alleges his claims against the state in light of the Supreme Court’s holding on state sovereign immunity.

State Mandates for Digital Book Licenses to Libraries are Unconstitutional and Undermine the Free Market — “Ultimately, the state bills imposing compulsory licensing on library e-books are based on arguments that do not withstand legal, commercial, or economic scrutiny. Instead, advocates for these state bills simply recast customary licensing practices and ordinary business decisions that companies in the creative industries all engage in as inherently unfair and discriminatory practices. They then abruptly conclude that library e-book lending licenses must be regulated by the government with unprecedented, intrusive price controls and mandates of other license terms. But merely asserting that there is a problem, and using heavy-handed rhetoric that demonizes copyright owners, does not in fact prove there is a market failure that requires government intervention.”

The Quixotic Battle Over Controlled Digital Lending Heats Up — “[Internet Archive] ridiculously claims that its Open Library causes no market harm to the Publishers because they have already been paid for the physical books that IA digitizes and distributes online…. This self-serving position ignores the fact that IA is usurping a different market—the thriving one for ebook licensing with which Controlled Digital Lending directly competes.”

Friday’s Endnotes – 02/03/23

By , February 03, 2023.

UK Government axes plans to broaden existing text and data mining exception — “In mid-2022, the UK Intellectual Property Office (IPO) announced that Government would consider broadening the scope for unlicensed TDM activities and introduce a new E&L that would allow TDM for any purpose (including commercial TDM), subject to a lawful access requirement to the relevant copyright works and other protected subject-matter. The latest news, however, is that such a reform will not go ahead.”

USTR Releases 2022 Review of Notorious Markets for Counterfeiting and Piracy — “Reflecting the Biden-Harris Administration’s worker-centered trade policy, the 2022 Notorious Markets List’s issue focus section examines the impact of online piracy on U.S. workers.  The section describes how online piracy can impact the wages, residuals, pensions, and health care benefits that workers in the creative industries depend on and how combatting online piracy requires coordination between relevant actors in order to effectively address the rapidly shifting delivery methods of infringing content.”

Defendants seek dismissal of copyright infringement lawsuit brought by collage artist Deborah Roberts — “Lawyers for Beavers and Edwards are seeking to dismiss the Roberts suit, citing in documents filed yesterday (1 February) in US District Court in New York ‘numerous legal deficiencies’ in the original complaint. They argue that Roberts’s claims rest on general stylistic similarities and underlying subject matter, which are not protected by copyright law.”

Comedy rights agency seeks court sanctions against Pandora in ongoing copyright dispute — “One of the rights agencies representing comedians in the US has asked the courts to sanction Pandora and its lawyers for claims they have made about said agency as part of an ongoing copyright dispute. Various comedians have sued Pandora through the US courts over allegations it has been streaming their comedy material without all the correct licences in place.”

Microsoft, GitHub, and OpenAI ask court to throw out AI copyright lawsuit — “Microsoft, GitHub, and OpenAI want the court to dismiss a proposed class action complaint that accuses the companies of scraping licensed code to build GitHub’s AI-powered Copilot tool, as reported earlier by Reuters. In a pair of filings submitted to a San Francisco federal court on Thursday, the Microsoft-owned GitHub and OpenAI say the claims outlined in the suit don’t hold up.”

Friday’s Endnotes – 01/27/23

By , January 27, 2023.

How Easy Is It to Pirate Ebooks? — “The most recent addition to this ebook piracy drama is Internet Archive, which has been hosting digital copies of books for years. In 2020, some publishers filed a lawsuit against the nonprofit organization for alleged copyright infringement. Internet Archive, it seemed, scanned copies of books donated to them, put them up on their website, and lent them to users for up to 14 days. They want to function as a library, but real libraries pay publishers licensing fees and they don’t.”

How a Texas Baby-Clothing Company Took Target Down (a Peg) — Emily McCullar spins a gripping yarn about one independent clothing designer’s legal fight against the retail giant for copying one of her designs without permission.

Copyright and human rights in Europe: key decisions in 2022 — A discussion of four decisions from Finland, Italy, France, and Poland where courts mediated between copyright and human rights, including privacy, right to information, and free speech.

Meet Steezy, the Dance App Giving Choreographers Credit — and a Paycheck — “In addition to offering an additional revenue stream for dancers, Zhou and Lim feel a broader responsibility to highlight the way choreographers — who often aren’t properly credited for their work — contribute to the success of music at a time when some dancers are pushing for better compensation and even copyrighting their dances (U.S. copyright law allows choreography to be protected, so long as works are fixed in a tangible medium of expression from which the work can be performed).”

Copyright Office Pilot Public Records System Mistakenly Reflects Cancellation of Registration for AI Graphic Novel — Franklin Graves has the latest on a recent attempt to register the copyright in a work that at least in part is claimed to have been generated by an AI tool. Initial reports indicated that the registration was cancelled by the US Copyright Office, but those reports were the result of an error, and Graves reports the Office is still reviewing the registration application.

Friday’s Endnotes – 01/20/23

By , January 20, 2023.

AI Art Generators Spark Multiple Copyright Lawsuits — What’s bigger news than a copyright lawsuit against an AI art generator? Two copyright lawsuits against AI art generators. The Hollywood Reporter’s Winston Cho reports on a class action lawsuit filed in US federal court by a group of artists against Stability AI, Midjourney, and DeviantArt as well as a lawsuit filed by Getty Images in the UK against Stability AI.

The Most Significant Copyright Issues Likely to Arise in 2023 — The Copyright Alliance’s Keith Kupferschmid gazes into his crystal ball to see what copyright developments we might anticipate over the next year.

Indian Court Cracks Down On Stream-Ripping By ‘Rogue Websites’ — “The civil ruling, published in the High Court of Delhi on Jan. 12, was the first such action in India to tackle the practice of stream-ripping, one of the country’s most rampant forms of piracy.”

Giving artists longer control over their work benefits us all — Writers Union of Canada CEO John Degen writes, “Let’s stop equating payment for culture with harm or loss. That’s cheap rhetoric, and an insult to cultural labour.”

Photographer Whose Metadata Was Deleted by Client Loses Lawsuit — Petitioner was seeking to reverse an Eleventh Circuit ruling that held 17 USC § 1202(b) requires evidence linking the defendant’s removal of copyright management information (CMI) with specific instances of infringement.

Friday’s Endnotes – 01/13/23

By , January 13, 2023.

New Copyright Venue Fields Hundreds of Claims, Evoking Optimism — The Copyright Claims Board, a new tribunal created to hear small copyright claims in the U.S., is a little over 6 months old as we start the new year. And so far it seems to be working… good? Riddhi Setty of Bloomberg Law speaks to U.S. Copyright Office leadership and several copyright experts and looks at statistics compiled by the Copyright Alliance to review the early performance of the novel tribunal.

Zara Sues “Responsible” Brand Thilikó for “Passing Off” Zara Wares, Photos as its Own — Typically, fast fashion brands are the ones accused of misappropriating fashion designs, so there’s a touch of irony to see fast fashion brand Zara as the plaintiff in a recently filed lawsuit alleging copyright infringement and other claims against a high-end retailer that it claims engaged in a “serial” scheme of acquiring Zara garments, replacing the tags with its own tags, and passing the goods off as its own, including with “exorbitant mark-ups.” Zara also alleges the retailer copied Zara’s photos for garments and used them on its own site.

Photo Agency Sues Twitter for $228.9 Million Over Copyright Infringement — From Pesala Bandara at PetaPixel: “Photo agency Backgrid and ten anonymous defendants have sued Twitter for allegedly failing to take down more than 1,500 photographs of celebrities owned by them and illegally posted to the platform by users. According to the lawsuit filed on December 30, 2022, Backgrid alleges it sent over 6,700 Digital Millennium Copyright Act (DMCA) notices to Twitter requesting the removal of its copyrighted photos, but Twitter failed to respond or take down a single image.”

Copyright Legislation in 2022: A Year in Review — A look back at the U.S. copyright bills that made progress in 2022 but did not pass, as well as the two relatively minor measures that did pass.

The Myth of the “Mickey Mouse Protection Act” Has Reached its “Sell By” Date — Stephen Carlisle writes, “It’s about time for the myth of the ‘Mickey Mouse Protection Act’ to take its final bow. Of course it was never true, but that did not stop people from ginning up publicity (about themselves or their organizations) by declaring that the Sonny Bono Copyright Term Extension Act, passed in 1998, was all about protecting the property of Disney and particularly Mickey Mouse.”

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