Friday’s Endnotes – 05/09/25

By , May 09, 2025.

Glaring Omissions from the Kadrey v. Meta Hearing — “…the hearing included little or no discussion of three key points that must be considered as part of any AI training fair use analysis: (1) under the first factor, whether the use was commercial or transformative and the ultimate purpose of the output, (2) the effect of Warhol v. Goldsmith on transformativeness and justification, and (3) the robust and growing market for AI licensing.”

Judge on Meta’s AI training: “I just don’t understand how that can be fair use” — “‘You have companies using copyright-protected material to create a product that is capable of producing an infinite number of competing products,’ Chhabria said. ‘You are dramatically changing, you might even say obliterating, the market for that person’s work, and you’re saying that you don’t even have to pay a license to that person.'”

AAP’s Annual Meeting: Stark Comment on AI and Copyright — “We need to acknowledge the stakes here and recognize the fight we’re in. This is a battle taking place in the public square, on university campuses, and in global capitals all around the world. Our opponents are lobbying for AI exceptions to copyright for national security reasons that will turn over our global IP leadership to bad actors and nation-states that have the exact opposite effect as intended by beginning a rapid race to the bottom.”

Copyright after Loper Bright: New Challenges for the Copyright Office? — “While Loper Bright overrules Chevron deference and reasserts the judiciary’s primary role in statutory interpretation, its impact on copyright law is likely to be limited. Courts have historically applied Chevron sparingly in this area, often relying instead on direct statutory interpretation or the Skidmore framework. Even in cases where Chevron was invoked, courts frequently engaged in their own independent analysis or found clear congressional delegations of authority to administrative bodies.”

India panel to review copyright law amid legal challenges to OpenAI — “The memo, which is not public, said the commerce ministry set up a panel of eight experts last month to examine issues related to AI and their implications for India’s copyright law. The experts have been tasked to ‘identify and analyze the legal and policy issues arising from the use of artificial intelligence in the context of copyright,’ the memo added.”

Friday’s Endnotes – 05/02/25

By , May 02, 2025.

Judge in Meta case warns AI could ‘obliterate’ market for original works — “‘You have companies using copyright-protected material to create a product that is capable of producing an infinite number of competing products,’ Chhabria told Meta’s attorneys. ‘You are dramatically changing, you might even say obliterating, the market for that person’s work, and you’re saying that you don’t even have to pay a license to that person. I just don’t understand how that can be fair use,’ Chhabria said.”

Top 10 Noteworthy Copyright Stories in April 2025 — The Copyright Alliance’s Rachel Kim provides a rundown of top copyright developments in courts, Congress, federal agencies, and beyond.

Can You Copyright A Met Gala Outfit — “In advance of this year’s event, NYU News spoke with NYU School of Law professor Douglas Hand, who teaches a course on fashion law, about how these outfits are legally protected, the most important copyright issues in high-end fashion, and how students can apply what they learn in a fashion law course.”

Just-Announced Canadian Journalism Payments Show Proof of Concept for JCPA, Similar US Bills — “Danielle Coffey, President and CEO of the News/Media Alliance, said, ‘… Publishers deserve to be compensated when major tech platforms profit from their work, and Canada’s example proves that this model will work for publishers in the United States and start to reverse the damage that the Big Tech platforms have wreaked on the American news ecosystem.'”

Ministers to amend data bill amid artists’ concerns over AI and copyright — “Artists including Paul McCartney and Tom Stoppard have thrown their weight behind a campaign against the changes in a series of high-level interventions. Elton John said the reforms rode ‘roughshod over the traditional copyright laws that protect artists’ livelihoods.’ Ministers want to allow AI companies to use copyrighted works to train their models without permission, unless the copyright holder opts out of the process. Creatives say that this favours AI companies and want them to follow current copyright laws.”

Friday’s Endnotes – 04/25/25

By , April 25, 2025.

U.S. Copyright Office Releases New Copyright Registration Toolkit — “As part of the Copyright Office’s Copyright for All initiative, the toolkit is a visual breakdown of copyright, including essential information about copyright law, how to prepare for copyright registration, what to expect during the process, and post-registration considerations.”

As Industry Demands AI Licensing Frameworks, Emerging Tech Can Help — “The panelists identified multiple advantages beyond monetary compensation for content owners who engage with AI companies. Campbell explained that licensing leads to collaboration: ‘You actually end up collaborating with that company around innovation. New things come out on product side [and] engineering side…through these partnerships.’ He added that licensing must be voluntary, not compulsory, the latter of which risks prompting AI companies to ‘pull back and stifles innovation.'”

IGN and CNET owner Ziff Davis sues OpenAI — “In the lawsuit, the digital media company accuses OpenAI of ‘intentionally and relentlessly’ creating ‘exact copies’ of its outlets’ works without permission. The company also alleges that OpenAI trained its AI models on its work despite Ziff Davis instructing web crawlers not to scrape its data using a robots.txt file, adding that OpenAI allegedly removed copyright information from the content it sucks up.”

Let’s not Zuck up, the existential struggle is on — “This now feels like an existential struggle. It is about how we value our creative output, what others see in what we do and how we stand up for it. It is also about the rule of law. In public, Facebook founder Mark Zuckerberg has said that creatives exaggerate the worth of their content. But, in private, the company acts like it can’t find its wallet after a restaurant meal.”

OpenAI’s most capable models hallucinate more than earlier ones — “Hallucinations, which refer to fabricated claims, studies, and even URLs, have continued to plague even the most cutting-edge advancements in AI. There is currently no perfect solution for preventing or identifying them, though OpenAI has tried some approaches.”

Friday’s Endnotes – 04/18/25

By , April 18, 2025.

AI Licensing Startups Bloom in Wake of Copyright Legal Battles — “Created by Humans recently launched a platform that lets tech firms shop for author-sanctioned catalogs of books. Narrativ has built a marketplace for voice actors to license their likenesses and entered into an agreement with labor union SAG-AFTRA. And Prorata, whose tools can help break down AI outputs to compensate each contributor, has partnered with over 400 publications since August, including Fortune, The Atlantic and Axel Springer, as well as Universal Music Group.”

Copyright Case Between Deborah Roberts and Richard Beavers Gallery ‘Amicably Resolved’ — “A judge ultimately determined that of the 16 works presented as evidence in the case, 9 did not amount to copyright infringement, however the remaining 7 bear such a degree of similarity that a ‘total concept and feel of each collage is sufficiently similar to defeat a motion to dismiss.’ The case was allowed to proceed.”

Shedding Light: Briefs Filed in Kadrey v. Meta — “As we see in the shorthand of social media, the developers write their own dichotomy by simultaneously humanizing and dehumanizing their products. In one breath, they compare machine leaning (ML) to human learning but then drop the analogy when they seek to claim that the protected ‘expression’ in the works used is not copied or stored by their mysterious and complex ‘training’ models. The AAP brief argues that copying ‘expression’ is central to training an LLM, and the professors’ brief shows why ‘learning like a human’ is precisely why fair use does not exempt Meta from obtaining licenses.”

EU copyright law roundup – first trimester of 2025 — “Slightly overdue, but here comes the first roundup of 2025. The EU courts have issued just one judgment in this trimester, but to make up for it, there have been several interesting policy initiatives.”

Meta says it will resume AI training with public content from European users — “The company’s AI training efforts had been hampered by stringent European Union data privacy laws, which give people control over how their personal information is used. Vienna-based group NOYB, led by activist Max Schrems, had complained to various national privacy watchdogs about Meta’s AI training plans and urged them to stop the company before it started training its next generation of AI models.”

Friday’s Endnotes – 04/11/25

By , April 11, 2025.

Internet Archive vs. Music Labels: $600m+ Copyright Rift Edges Toward Settlement — “The Internet Archive’s ‘Great 78 Project’ digitizes historical recordings to preserve musical heritage, but in 2023 the initiative led to major record labels filing a copyright lawsuit. The financial stakes soared last month when the labels proposed to update their claim to $693 million in statutory damages. A recent filing suggests that due to significant progress in settlement discussions, it may not come to that.”

Photographer Asks Supreme Court to Decide if Embedded Instagram Posts Infringe Copyright — “In his lawsuit, McGucken accused thetravel.com of infringing his copyright in 36 photographs by embedding them without permission from his Instagram page over multiple articles. If thetravel.com had made new copies of McGucken’s photographs and uploaded them on its website, it would have been a straightforward case of copyright infringement. However, the website displayed the images by embedding them directly from McGucken’s Instagram page. While Instagram does not grant permission for companies to embed these images, a 2007 Ninth Circuit ruling known as the ‘server test’ established that when an image remains on a third party’s server and is not stored on the infringer’s computer, embedding it does not count as a new display.”

Copyright in Brazil in 2025: What to Expect? — “The availability of generative artificial intelligence (GenAI) systems, particularly with the launch of ChatGPT in November 2022, marks a new technological era and has catalyzed this renewed attention. Thus, old issues merge with new discussions, fueling an essential debate that we hope will be addressed constructively. Here, we highlight some key topics to follow in 2025.”

OpenAI’s models ‘memorized’ copyrighted content, new study suggests — “Models are prediction engines. Trained on a lot of data, they learn patterns — that’s how they’re able to generate essays, photos, and more. Most of the outputs aren’t verbatim copies of the training data, but owing to the way models ‘learn,’ some inevitably are. Image models have been found to regurgitate screenshots from movies they were trained on, while language models have been observed effectively plagiarizing news articles.”

Judge calls out OpenAI’s ‘straw man’ argument in New York Times copyright suit — “Essentially, the judge agreed with the NYT that OpenAI has not yet provided any evidence that the newspaper knew how ChatGPT would perform until the product was out in the wild. Therefore, he denied OpenAI’s motion to dismiss those claims as time-barred, while denouncing as a ‘straw man’ an OpenAI argument that the NYT, “as a ‘sophisticated publisher,’ had a duty ‘to take prompt action after being put on notice of what it now claims to be alleged infringement.'”

Friday’s Endnotes – 04/04/25

By , April 04, 2025.

March 2025 Roundup of Copyright News — The Copyright Alliance’s Rachel Kim reviews a busy month in copyright developments, with activity from the US Copyright Office, the Executive Branch, Congress, courts, and beyond.

Unfair Learning: GenAI Exceptionalism and Copyright Law — “This paper challenges the argument that generative artificial intelligence (GenAI) is entitled to broad immunity from copyright law for reproducing copyrighted works without authorization due to a fair use defense. It examines fair use legal arguments and eight distinct substantive arguments, contending that every legal and substantive argument favoring fair use for GenAI applies equally, if not more so, to humans.”

Music copyright group mandates ‘no AI use’ for new songs — “The Korea Music Copyright Association recently implemented a procedure for registering a new song, requiring songwriters to verify that they did not use artificial intelligence, reaffirming its stance that AI-generated music cannot be copyrighted.”

US authors’ copyright lawsuits against OpenAI and Microsoft combined in New York with newspaper actions — “Twelve US copyright cases against OpenAI and Microsoft have been consolidated in New York, despite most of the authors and news outlets suing the companies being opposed to centralisation. A transfer order made by the US judicial panel on multidistrict litigation on Thursday said that centralisation will ‘allow a single judge to coordinate discovery, streamline pretrial proceedings, and eliminate inconsistent rulings’.”

Counterclaim for copyright invalidity is not a ‘mirror image’ of an infringement claim — The court refused to dismiss the counterclaim as to invalidity of the copyright. The designer argued that the counterclaim was a ‘mirror image’ claim that was duplicative and redundant of the complaint itself. But the court disagreed. A counterclaim seeking a declaratory judgment is not duplicative or redundant, the court noted, ‘if it asserts an independent case or controversy which would remain viable after a dismissal of the plaintiff’s claim.'”

Friday’s Endnotes – 03/28/25

By , March 28, 2025.

The Global Creative Community Stands Unified Against Unchecked AI Use — “Artists, writers, musicians, designers, photographers, and other creative professionals are dealing with the impact of AI on their respective industries—with perspectives ranging from concern to outright opposition. The overarching issue is that AI companies are profiting from data that was never intended for their use without consent.”

Court Advances The New York Times Lawsuit Against OpenAI — “The Times filed the lawsuit in 2023 after an impasse in negotiations with OpenAI and Microsoft over a deal that’d resolve concerns around the use of its articles to train automated chatbots. The Times, after the highly publicized releases of ChatGPT and BingChat, notified the companies that their tech infringed on its articles. The terms of a resolution involved a licensing agreement and the institution of guardrails around generative artificial intelligence tools, though the talks reached no such truce.”

UK Publishers and Cambridge, Call out Meta and Piracy in Generative AI Training — “Today (March 25), the Publishers Association in the UK has pointed to Alex Reisner’s article at the Stateside Atlantic magazine, in which Reisner writes, ‘When employees at Meta started developing their flagship AI model, Llama 3, they faced a simple ethical question. The program would need to be trained on a huge amount of high-quality writing to be competitive with products such as ChatGPT, and acquiring all of that text legally could take time. Should they just pirate it instead?’ And this, of course, dovetails perfectly with Pallante’s closing comments in the AAP response to the call for comment in the states, in which she wrote, ‘Among our priorities is stopping the proliferation of pirate sites that are a scourge on American IP investments and an illegal source of AI development.’ More than once, she lands clearly on the point of piracy being involved as a source of ‘training’ content in generative AI that’s copyrighted, and pirated, then hoovered up by large language models.”

Anthropic wins early round in music publishers’ AI copyright case — “U.S. District Judge Eumi Lee said that the publishers’ request was too broad and that they failed to show Anthropic’s conduct caused them ‘irreparable harm.’ The publishers said in a statement that they ‘remain very confident in our case against Anthropic more broadly.'”

Dua Lipa wins copyright case over Levitating — “On Thursday, US Judge Katherine Polk Failla ruled that the songs only had generic similarities, including non-copyrightable musical elements that had also previously been used by Mozart, Gilbert and Sullivan, and the Bee Gees in their song Stayin’ Alive. It is the second time that Lipa has won a plagiarism case over Levitating, which was a global hit in 2020.”

Friday’s Endnotes – 03/21/25

By , March 21, 2025.

The Perils of ‘Free’ Information — Jonathan Barnett writes, “In my recent book The Big Steal, … I show that tech platforms have sought to weaken IP rights to reduce the costs of securing content and tech assets, which are then monetized within a portfolio of complementary products and services. While this strategy may reduce costs for users in the short term, it does not align with the public’s interest in preserving a knowledge ecosystem that can sustain technological and creative innovation over the long term. A singular focus on ‘free stuff’ distorts innovation markets by favoring platform-based and other integrated business models, impeding entry by ‘stand alone’ innovators in tech and creative markets, and diverting investment from economically and geopolitically critical industries that rely on robust IP protections. Contrary to settled expectations, setting information ‘free’ can yield outcomes that are bad for both innovation and competition.”

US Court of Appeal confirms human authorship requirement, including for AI — “In conclusion, the last word on AI-assisted works is still a long time away from being spelled out. Hopefully, future decisions will help shed light, not on the (now) irrelevant question of whether only humans can generally be regarded as authors, but rather on the key issue of what authorship and originality entail. And this is a question that goes to the core of copyright law, well before, well beyond and well after AI.”

Mariah Carey wins copyright case over Christmas hit — “In a ruling issued on Wednesday, a US judge rejected the allegations of songwriter Adam Stone, who released a song with the same name in 1989. He accused Carey of exploiting his ‘popularity’ and ‘style’. Mr Stone, who performs under the name Vince Vance, was claiming at least $20m (£16m) in damages. But in her ruling, Judge Mónica Ramírez Almadani cited expert testimony saying the two songs simply shared ‘Christmas song clichés’ that were common to several earlier hits.”

AAP Urges White House to Prioritize Copyright in AI Action Plan — “The AAP’s involvement in AI policy discussions comes at a crucial time for the publishing industry, with publishers increasingly concerned about unauthorized use of their intellectual property for AI training purposes while simultaneously exploring ways to incorporate AI tools into their own operations. There are currently dozens of lawsuits seeking to remedy the tech industry’s theft of copywritten material and establish precedent to protect the publishing industry going forward.”

Amazon is blundering into an AI copyright nightmare — “Music, like all worthwhile art, is about people. If more people want to make music, they can — by learning how to play an instrument or sing. One of the benefits of learning an instrument is that it deepens your appreciation; suddenly you can hear a song’s time signature or notice the difference in feel between keys. You don’t even have to be very good to make music people enjoy — that’s why God created punk!”

Friday’s Endnotes – 03/14/25

By , March 14, 2025.

Kadrey plaintiffs seek partial summary judgment that Meta’s torrenting of book files from pirated datasets is infringement, not fair use. Motion does not cover DMCA claim, fair use during training, or remedies. — “The Kadrey plaintiffs filed their motion for partial summary judgment. They ask the court to rule that Meta’s use of torrenting to download while allowing others to upload pirated copies of books from so-called shadow libraries. This unauthorized torrenting does not constitute fair use, the plaintiffs assert, citing the Second Circuit’s decision in Hachette v. Internet Archive.“

French publishers and authors sue Meta over copyright works used in AI training — “Three trade groups said they were launching legal action against Meta in a Paris court over what they said was the company’s ‘massive use of copyrighted works without authorization’ to train its generative AI model.”

John Squires Becomes Official Nominee to Head USPTO — Although the primary function of the USPTO is granting patents and registering trademarks, the Office also advises the Executive Branch on IP issues, including copyright. Its work there includes “treaty negotiation and monitoring the implementation of copyright-related international treaty provisions, including reviewing U.S. implementation of and adherence to international treaty obligations relating to copyright and related rights; technical assistance and training on copyright-related matters, to both U.S. and foreign officials; and monitoring domestic copyright policy developments within the Executive Branch, the U.S. Congress, and the courts.”

Chinese Court Rules That AI Image Has Copyright Protection — “The case revolves around an image created by Midjourney, a popular AI picture generator. The plaintiff with the surname Lin generated an image featuring a heart-shaped balloon. Lin later discovered that two companies had used the design in their social media posts without permission and subsequently filed a lawsuit.”

‘Moana’ Trial Ends in Win for Disney as Company Is Cleared of Copyright Infringement — “After a two-week trial in federal court in Los Angeles, the eight-member jury found unanimously that Disney did not have access to the 2011 screenplay or earlier treatments. The jury deliberated for less than three hours. A Disney spokesperson said, ‘We are incredibly proud of the collective work that went into the making of ‘Moana’ and are pleased that the jury found it had nothing to do with Plaintiff’s works.'”

Friday’s Endnotes – 03/07/25

By , March 07, 2025.

How the Emerging Market for AI Training Data is Eroding Big Tech’s ‘Fair Use’ Copyright Defense — “Around this time last year, news headlines and court documents were full of grand proclamations from AI tech corporations using pirated content to train their artificial intelligence models. Ripping off writers, musicians, and artists in order to build billion-dollar companies amounted to ‘fair use’ of their material, said the fast movers and thing-breakers. Fair use—a concept heretofore applied largely to the quotation of a few lines in a book review—was cited as legal cover for the most brazen and massive theft of intellectual property in history.”

A Global Phenomenon: The Creative Community’s Viral Outrage Against AI Theft — “The creative communities’ outrage against AI companies stealing their intellectual property is a global phenomenon. More and more, we are seeing creators and creative industries not just in the United States but throughout the world stepping up to voice their disapproval of government actions intended to kowtow to AI companies at the expense of culture, creativity, and the careers of creators.”

Hollywood Studios Sue Pirate IPTV Services in U.S. Court — “The Internet is littered with cheap IPTV services that offer access to a lot of content, for very little money. These deals often seem too good to be true and in most cases they are; at least for those who prefer to stay on the right side of the law. Yesterday, members of the Alliance for Creativity and Entertainment (ACE) filed two lawsuits against alleged operators of pirate IPTV services in the United States. Amazon, Netflix, Disney, Paramount, and other major Hollywood studios, accuse the defendants of widespread copyright infringement.”

Key ex-OpenAI researcher subpoenaed in AI copyright case — “The copyright case, ‘re OpenAI ChatGPT Litigation,’ was brought by book authors, including Paul Tremblay, Sarah Silverman, and Michael Chabon, who alleged that OpenAI infringed their copyrights by using their work to train its AI models. The plaintiffs also argued that ChatGPT infringed their works by liberally quoting those works sans attribution.”

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