Friday’s Endnotes – 05/10/24

By , May 10, 2024.

Justices Leave Door Open to Discovery Rule Copyright Damages — Bloomberg Law’s Kyle Jahner writes about yesterday’s Supreme Court decision in Warner Chappell Music v. Nealy, where the Court resolved a circuit split over the question of whether a copyright plaintiff can recover damages for acts that allegedly occurred beyond the statute of limitations.

Stability AI, Midjourney should face artists’ copyright case, judge says — “A California federal judge said he was inclined to green-light a copyright lawsuit against Stability AI, Midjourney and other companies accused of misusing visual artists’ work to train their artificial intelligence-based image generation systems. U.S. District Judge William Orrick said on Tuesday that the ten artists behind the lawsuit had plausibly argued that Stability, Midjourney, DeviantArt and Runway AI copied and stored their work on company servers and could be liable for using it without permission.”

Connecticut AG Members Oppose State Ebook Licensing Bill — “On April 19, 2024, more than 60 Authors Guild members from the state of Connecticut sent a letter to leaders in both houses of the Connecticut General Assembly voicing their concerns about Senate Bill 148 and House Bill 5312. These bills would create the equivalent of a compulsory license for ebooks, audiobooks, and other digital media in violation of federal law and to the detriment of authors’ incomes.”

The Economics of Copyright: Incentives and Rewards (It’s Important to Get them Right) — Hugh Stevens writes of an interview with the US Copyright Office’s first Chief Economist, Dr. Brent Lutes, “While the studies cited above highlight the economic contribution that copyright industries make to national economies in terms of jobs and wealth generation, let us not forget the key point that Dr. Lutes underlined regarding the social welfare contribution of copyright through using market-based incentives to promote and encourage creativity and investment in creative outputs. It is hard, if not impossible, to put a dollar amount on the social welfare benefits of creative expression and cultural sovereignty, but they are immense if incalculable.”

Nvidia, Databricks Sued in Latest AI Copyright Class Actions — “While works gain protection upon creation, Dubus, Olrean, Makkai and Reynolds focus on authors with registered copyrights in books in a training dataset that Nvidia and Databricks has allegedly admitted copying to train its NeMo Megatron models. One part of the dataset used to train the models comprises 108 gigabytes of data pulled from Bibliotik, a ‘shadow library’ that hosts and distributed unlicensed copyright materials, according to the complaint. Shawn Presser, creator of Bibliotik, has confirmed in public statements that it contains nearly 200,000 books.”

Friday’s Endnotes – 05/03/24

By , May 03, 2024.

Generative AI is generating astronomical profits by trampling authors and publishers — “Copyright is a key part of regulation, as neither the tools nor corresponding profits of big tech would be possible at all if not for the immeasurably valuable authorship that permits the technology to generate—or, more aptly, regenerate—the coherent, intelligent text of human expression, including, in some cases, outputs that may act as market substitutes.”

Can Copyright Law Save Journalism From A.I.? — “The lawsuit is only the latest chapter in print journalism’s long struggle to survive the internet era. It may be a crucial one. Some of Silicon Valley’s tech barons are openly hostile to journalism, dreaming of the day when it can be ‘disrupted’ or rendered obsolete. To do so, however, they may have to get through copyright law first.”

Pirate IPTV Owner’s Conviction First Ever Under Protecting Lawful Streaming Act — “Passed by Congress late December 2020, the Protecting Lawful Streaming Act (PLSA) was crafted to urgently close a loophole in copyright law that treated unlicensed reproduction and distribution as a felony, but unlicensed streaming as a misdemeanor. This week, well over three years later, a 40-year-old former operator of an illicit IPTV service became the first person to be convicted under the PLSA. While a win is a win, the case wasn’t entirely straightforward.”

UK Lawmakers Call for AI Legislation to Protect Artists from Deepfakes, Copyright Infringement — “The report sets out eight recommendations, including ‘transparent labelling’ of AI-generated materials; a requirement for AI developers to keep records of the materials used in training AI, and a requirement for them to gain rightsholders’ permission; establish a rule that AI-generated content without human creativity involved can’t be copyrighted; and the creation of a ‘personality right’ that would protect people’s voice, image, name and likeness from AI deepfakes.”

French- and English-Language Canadians Protest Copyright Inaction — “Today, there’s yet another puzzling miss of any effort to mitigate the damage created by Canada’s ironically named Copyright Modernization Act of 2012. This time, both Access Copyright and Copibec, Canada’s English-language and French-language copyright collectives are speaking together in a statement condemning the Canadian federal government’s budget for 2024 ‘neglecting to include long-needed action regarding Canada’s fair dealing regime.'”

Friday’s Endnotes – 04/26/24

By , April 26, 2024.

The Economics of Creativity: A Q&A with the Copyright Office’s Chief Economist — “In 2022, the U.S. Copyright Office welcomed Dr. Brent Lutes to serve as the Office’s first chief economist. Office staff recently sat down with Dr. Lutes and discussed the intersection of economics and copyright as well as some forthcoming economic research the Office of the Chief Economist (OCE) is producing.”

The 5 Best Uses of the Copyright Claims Board — “Overall, the CCB has done very well for itself. It’s largely met its goal of providing a faster, easier and less expensive path to resolving copyright disputes. It also hasn’t become the haven for ‘copyright trolls’ that many feared. But that doesn’t mean it’s good for every type of dispute. Even cases that can be filed at the CCB may not be best served by it. To that end, here are five scenarios in which the CCB has repeatedly proven useful for both sides of a copyright infringement case.”

Registering Generative AI Works for Copyright Under the Rule of Doubt — “The Copyright Office is currently involved with the question of how to handle applications to register works which are partially or fully made using generative AI. A study is currently ongoing on numerous areas of AI and copyright, and over 10,000 comments have been submitted. However, aside from a isolated blog post, so far as I can tell none of them mention the “Rule of Doubt” as a way to handle these registrations…”

Ex-Amazon exec claims she was asked to ignore copyright law in race to AI — “According to Ghaderi’s account in the complaint, she returned to work after giving birth in January 2023, inheriting a large language model project. Part of her role was flagging violations of Amazon’s internal copyright policies and escalating these concerns to the in-house legal team. In March 2023, the filing claims, her team director, Andrey Styskin, challenged Ghaderi to understand why Amazon was not meeting its goals on Alexa search quality… According to the complaint, Styskin rejected Ghaderi’s concerns, allegedly telling her to ignore copyright policies to improve the results. Referring to rival AI companies, the filing alleges he said: ‘Everyone else is doing it.'”

Friday’s Endnotes – 04/19/24

By , April 19, 2024.

Can’t Hide from Brussels: EU To Require Copyright-Related AI Disclosures — “On March 13, 2024, the European Parliament approved the Artificial Intelligence Act, known as the AI Act.  Formal adoption of the AI Act is expected in early Summer 2024, with implementation spearheaded by the newly-formed European AI Office.  The AI Act is the one of the first major legislative frameworks in the world to emerge in response to the spread and seeming ubiquity of the relatively new generative AI technologies.”

Author granted copyright over book with AI-generated text—with a twist — “Although it continues to define authorship as an exclusively human endeavor, the USCO has demonstrated openness to registering works that incorporate AI elements. The USCO said in February that it has granted registration to over 100 works with AI incorporated; a search by WIRED found over 200 copyright registration applications explicitly disclosing AI elements, including books, songs, and visual artworks.”

Thaler, Copyright Office Fight Over Human-Authorship Requirement for AI-Created Artwork Continues — “On April 10, Dr. Stephen Thaler filed a reply brief at the U.S. Court of Appeals for the D.C. Circuit, continuing the artificial intelligence (AI) technologist’s legal challenge to the U.S. Copyright Office’s refusal to register copyright to an artwork generated by Thaler’s Creativity Machine…”

Key Defendant in Anna’s Archive Lawsuit Denies Any Involvement With the Site — “American nonprofit OCLC sued Anna’s Archive in February for allegedly hacking its WorldCat database and posting the records online. The only named defendant, a software developer from Washington, denies any involvement with the hack and the pirate library, suggesting that the plaintiffs targeted the wrong person. With a motion to dismiss, the defendant hopes to end the case here and now.”

Authors’ and Publishers’ Organisations Urge WIPO Member States to Maintain International Copyright Framework — “As the 45th session of the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights (SCCR) opens, organisations representing authors and performers call ‘on WIPO Member States to keep supporting the flourishing cultural and creative sectors and the substantive and economic values authors and publishers convey to society.'”

Friday’s Endnotes – 04/12/24

By , April 12, 2024.

How Tech Giants Cut Corners to Harvest Data for A.I. — “The race to lead A.I. has become a desperate hunt for the digital data needed to advance the technology. To obtain that data, tech companies including OpenAI, Google and Meta have cut corners, ignored corporate policies and debated bending the law, according to an examination by The New York Times.”

New bill would force AI companies to reveal use of copyrighted art — “Whether major artificial intelligence companies worth billions have made illegal use of copyrighted works is increasingly the source of litigation and government investigation. Schiff’s bill would not ban AI from training on copyrighted material, but would put a sizable onus on companies to list the massive swath of works that they use to build tools like ChatGPT – data that is usually kept private.”

Dueling OpenAI Copyright Cases to Remain Separate, Parallel Actions on Both Coasts — “The New York-based federal district court overseeing the New York Times v. OpenAI & Microsoft copyright infringement and trademark dilution case recently denied Silverman’s attempt to intervene in the later-filed New York Times case, throwing another wrench in her so far rocky crusade against OpenAI and setting up potentially varied rulings in separate courts over OpenAI’s use of copyrighted works to train LLMs.”

EU copyright law roundup – first trimester of 2024 — At Kluwer Copyright Blog, Alina Trapova and João Pedro Quintais provide an update on Court of Justice and General Court judgments, Advocate Generals’ opinions, and important policy developments from the EU.

Shein has copyright infringement ‘baked into’ its business model: class action lawsuit — “Attorneys allege that to distribute these items ‘at such a fever pitch,’ Shein’s algorithm-based design system outputs designs to Shein’s factories for production ‘with no human intermediary or compliance function taking care that the algorithm’s designs are not the property of others.'”

Friday’s Endnotes – 04/05/24

By , April 05, 2024.

California authors can’t intervene in ChatGPT copyright cases pending in New York — “Authors and journalists — across four pending civil cases that have been consolidated in Manhattan federal court since last fall — accuse OpenAI and Microsoft of infringing copyrights when training their large language models to develop algorithms that allow anyone to generate similar texts they would otherwise pay writers to create.”

OpenAI’s GPT Store Is Triggering Copyright Complaints — “Blichfeldt Andersen is publishing director at Praxis, a Danish textbook purveyor. The company has been embracing AI and created its own custom chatbots. But it is currently engaged in a game of whack-a-mole in the GPT Store, and Blichfeldt Andersen is the man holding the mallet.”

Copyright Claims Board Consolidates Games Workshop Claims — “In the meantime, the CCB has consolidated all the cases between the two parties. This is a first for the CCB in its nearly two years of operation. It also has significant impacts that both watchers of this case and followers of the CCB need to be aware of.”

Fourth Circuit Hands Photographer a Clean Sweep Victory in Copyright Fair Use Appeal Over News Website’s Use of Free of Charge Photo — “As you may know, there are four factors in any copyright fair use analysis. No one factor is considered determinative, and they are not equally weighted. In this case, Philpot swept the board, with the Fourth Circuit finding in his favor on every one of the fair use factors. Here we address the key issues with each of the four factors in turn.”

Google Books Indexes AI Trash — “Google Books is indexing low quality, AI-generated books that will turn up in search results, and could possibly impact Google Ngram viewer, an important tool used by researchers to track language use throughout history.”

Friday’s Endnotes – 03/29/24

By , March 29, 2024.

Looking Forward: The U.S. Copyright Office’s AI Initiative in 2024 — In a blog posted this week, the Copyright Office highlights the next steps in its policy study on copyright and AI. The Office plans to issue its report in several separate sections, with the first section focusing on digital replicas appearing later this spring.

Citing Warhol, 10th Circuit Reverses Tiger King Fair Use Ruling — “Sepi sued Netflix for copyright infringement, contending that the clips were used without his permission. The federal trial court held that Sepi did not own the copyrights in seven of the videos, because they were works for hire (Sepi shot the clips for Joe Exotic TV). Although Sepi owned the copyright in the eighth clip—a video of Exotic’s husband’s funeral—the trial court found that Netflix’s use of that clip was fair use. On appeal, the Tenth Circuit reversed the trial court’s fair use ruling.”

Publishers Secure Widespread Support in Landmark Copyright Battle With Internet Archive — Ernesto Van der Sar of Torrentfreak reports, “Major book publishers continue their legal crusade against Internet Archive’s scan-and-lend library, hoping to shut it down for good. IA’s appeal previously received support from authors and copyright scholars. The publishers, however, have some heavyweight backers too. New amicus briefs are signed by former U.S. politicians, former judges, and legal scholars. Industry groups such as the MPA and RIAA also rally behind the publishers.”

Brands add AI restrictions to agency contracts—behind the growing trend — “Brands don’t want to mistakenly put out work that carries the imprimatur of another brand’s creative, Wrubel said. Brands also don’t want agency partners using AI in ways that could jeopardize their own intellectual property. For instance, if a brand’s customer information were fed into an AI system, that data could train a model that a competitor might use.”

Generative AI could leave users holding the bag for copyright violations — “Researchers and journalists have raised the possibility that through selective prompting strategies, people can end up creating text, images or video that violates copyright law. Typically, generative AI tools output an image, text or video but do not provide any warning about potential infringement. This raises the question of how to ensure that users of generative AI tools do not unknowingly end up infringing copyright protection.”

Friday’s Endnotes – 03/22/24

By , March 22, 2024.

Here’s Proof You Can Train an AI Model Without Slurping Copyrighted Content — “In 2023, OpenAI told the UK parliament that it was ‘impossible’ to train leading AI models without using copyrighted materials. It’s a popular stance in the AI world, where OpenAI and other leading players have used materials slurped up online to train the models powering chatbots and image generators, triggering a wave of lawsuits alleging copyright infringement. Two announcements Wednesday offer evidence that large language models can in fact be trained without the permissionless use of copyrighted materials.”

Machine ‘Unlearning’ Helps Generative AI ‘Forget’ Copyright-Protected and Violent Content — “’When you train these models on such massive data sets, you’re bound to include some data that is undesirable,’ said Radu Marculescu, a professor in the Cockrell School of Engineering’s Chandra Family Department of Electrical and Computer Engineering and one of the leaders on the project. ‘Previously, the only way to remove problematic content was to scrap everything, start anew, manually take out all that data and retrain the model. Our approach offers the opportunity to do this without having to retrain the model from scratch.’”

French competition watchdog hits Google with 250 million euro fine — “France’s competition watchdog on Wednesday said it fined Alphabet’s Google 250 million euros ($271.73 million) for breaches linked to EU intellectual property rules in its relationship with media publishers, citing concerns about the company’s AI service. The watchdog said Google’s AI-powered chatbot Bard – since rebranded under the name Gemini – was trained on content from publishers and news agencies, without notifying them.”

7th Annual Intellectual Property Awareness Summit — “CIPU is offering free access to the livestream to the IP Awareness Summit on March 28th. The focus is AI and IP – What does it mean? Can generative AI meaningfully exist without IP rights and a level of governance? How can we assure that AI is net positive for innovation, creative expression and society? 23 speakers, five panels, two featured speakers.”

Warhol Foundation to Pay $21,000 to Settle Landmark ‘Fair Use’ Copyright Case — “The Andy Warhol Foundation and photographer Lynn Goldsmith have settled a closely watched copyright case that reached the US Supreme Court last year. Per a joint court filing Friday in the US District Court in Manhattan, Warhol’s estate agreed to pay more than $21,000, including $11,000 in legal fees, to resolve the years-long dispute. The initial suit was center ed around a Warhol artwork depicting the musician Prince that was based on a photograph by Goldsmith.”

Friday’s Endnotes – 03/15/24

By , March 15, 2024.

This Computer Scientist Seeks a Future Where AI Development Values Copyright — “This fair use view is far from universal. Disagreement with it is the basis for disputes such as the New York Times’ lawsuit against Microsoft and OpenAI, which alleges that the technology companies unlawfully used the newspapers’ stories to make chatbots. The issue also motivated computer scientist Ed Newton-Rex to quit his job at Stability AI last November. He has since launched a nonprofit organization called Fairly Trained, which certifies companies that only train their generative AI models on copyrighted material when they get a license to do so.”

ChatGPT in fight over where copyright claim suits will be handled: San Francisco or New York — “Following the [NY] Times [v. Microsoft] case, more cases were filed in New York and under that court’s rules for related cases, they were referred to the same judge who had the Authors Guild [v. OpenAI] class action case. The New York class actions did not go down well with [Joseph] Saveri. Invoking the so-called ‘First-to-File’ rule that, subject to some exceptions, gives priority in federal litigation to the first filed case, on Feb. 12, 2024, Saveri’s clients sought to intervene in the New York litigation in order to ask the New York judge to suspend or dismiss the New York cases in favor of the first filed San Francisco case.”

Authors push back on the growing number of AI ‘scam’ books on Amazon — “[Authors Guild CEO Mary] Rasenberger says the publishers posting these books benefit from increasingly more sophisticated AI tools that can generate low-quality ‘scam’ books quickly. ‘By the time Amazon finds out about them, they’ve already made some money and they move on to something else,’ she says. But the issue of AI-generated books can harm more than just an author’s sales numbers.”

New York Disbars Infamous Copyright Troll — “For years, Richard Liebowitz ran a very successful operation mostly sending threatening letters to companies claiming that they had infringed upon copyrights held by his photographer clients. Under the best of circumstances it’s a niche practice area that’s… kinda shady. But Liebowitz gained a degree of infamy across a number of matters for high-profile missteps in cases that sparked the ire of federal judges.”

Appeal Court’s ruling on copyright makes sense — “The dilemma of the divorced painter. Should you have to share the value of your copyright with your ex? The New Zealand Court of Appeal says yes, you do.” Interesting discussion about whether copyright is property.

Friday’s Endnotes – 03/08/24

By , March 08, 2024.

Publishers Target LibGen Domains, IPFS Gateways, Plus $30m in Piracy Damages — “Months have passed since the complaint was filed but LibGen’s anonymous operators did not respond. This prompted the textbook publishers to move ahead and request a default judgment in their favor. According to the rightsholders, LibGen distributes at least 20,000 of their copyrighted works without permission. The site is designed to be user-friendly while remaining resilient to enforcement measures. For example, LibGen can easily switch domain names, and relies on censorship-resistant decentralized technologies such as the InterPlanetary File System (IPFS), the publishers write.”

Twitter Music Lawsuit: Judge Allows Publishers’ Copyright Case Against X To Move Forward — “The case was organized by the National Music Publishers’ Association, which has long argued that Twitter is the last major social media service that refuses to license music. TikTok, Facebook, Instagram, YouTube and Snapchat have all allegedly entered into such deals with publishers, providing a library of licensed music for users to legally add to their posts. The lawsuit claimed that Twitter had, instead, effectively allowed its users to supply such music illegally.”

China court says AI broke copyright law in apparent world first — “An unnamed plaintiff in the suit who held partial copyright to Ultraman, a science fiction character created by Japanese studio Tsuburaya Productions, sued an AI company after its software created images that closely resembled the character, according to the 21st Century Business Herald. The name of the AI company involved was not disclosed. The Guangzhou Internet Court found that the images generated by the AI service were “substantially similar” to the Ultraman character – suggesting that the original had been used to train the AI – and awarded 10,000 yuan (about $1,400) in damages, the paper reported. No information about the case was available on the court’s website.”

Gentlemen, Start Your Engines: Even Bland Works Support Copyright — “Premier and Allegiance both administered car dealers’ loyalty programs. Customers enrolled in these programs were required to meet certain conditions (such as changing the car’s oil at predetermined intervals), and if a part under warranty broke, the dealer would help the car owner initiate a claim through the loyalty program administrator. In conjunction with administering these programs, Premier created a loyalty certificate. The certificate collected the customer’s personal information and provided the program’s terms and conditions. Premier registered its certificate for copyright protection in 2008.”

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