Friday’s Endnotes – 07/03/26

By , July 03, 2026.

Reggaeton artists’ unoriginality argument falls short in Jamaican producers copyright suit — At issue is “Fish Market”, a 1990 musical work and sound recording that was used without authorization by numerous reggaeton producers. The court denied summary judgment, saying, “The record presents genuine disputes of material fact regarding the identification, characterization, and protectability of the Fish Market elements, precluding summary judgment in either side’s favor.”

Kim Dotcom Loses Court of Appeal Bid to Block Extradition to the U.S. — The alleged operator of Megaupload continues to fight, unsuccessfully, his extradition from New Zealand to the US to face criminal copyright infringement charges originally filed in 2012.

Hearing Confirms Congress is Moving Ahead with Legislation to Protect Creators Against Piracy and Digital Replicas — A summary of the hearing, held this week by the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet. Witnesses included actor SAG-AFTRA president Sean Astin.

New copyright shareholder derivative suit v. Microsoft, its directors & officers. Microsoft becomes 2d company hit with new legal theory — As reported by Prof. Ed Lee, the new lawsuit alleges “that corporate officers or the board of directors approved copyright infringement, exposed the company to substantial risk of copyright liability, or made material misrepresentations about such conduct.”

AI-generated search summaries and personality rights: Munich court grants preliminary injunction against Google — Writing for IPKat, Marcel Pemsel analyzes a recent decision from a court in Germany that held Google liable for AI-generated answers that incorrectly claimed the plaintiff was known for fraudulent or dubious business practices.

The 250th Anniversary of the Declaration of Independence

By , July 02, 2026.

It might seem strange to think about paper on the 250th anniversary of the signing of the Declaration of Independence. It’s easy to take it for granted, especially in the digital age, but the fact is, without paper there would be no Declaration. Indeed, we Americans celebrate the day the Declaration was printed and published (July 4) rather than the date the Continental Congress approved the Lee Resolution (July 2) declaring independence from Great Britain.1Scott Bomboy, When is the real Independence Day: July 2 or July 4, National Constitution Center (July 2, 2024). A closer look at the material object in which the Declaration is embodied shines a light on relevant background conditions that may get overlooked and serves as a jumping off point to consider the role of the new government in encouraging printed works.

During the last big anniversary of the Declaration, the Bicentennial in 1976, the Library of Congress brought together existing copies of the first printing of the Declaration of Independence, twenty-one in all, for a detailed physical and scientific examination.2Frederick R. Goff, The John Dunlap Broadside: The First Printing of the Declaration of Independence (Library of Congress 1976). Five additional copies of that first printing have been found since the Goff study. Press Association, Rare copy of the US Declaration of Independence found, Guardian (July 2, 2009). The researcher, Frederick R. Goff, identified at least three different watermarks among the copies. This suggests the printer, John Dunlap, used whatever paper he had on hand for the printing and did not have enough paper from any single batch for the entire printing.3Goff notes that the total number of copies produced during this initial print run “is undetermined but cannot have been large.”

Such a fact would not be surprising, given that there was a critical shortage of paper in the British American colonies at that time resulting from the Stamp Act of 1765, one of the precipitating events leading to the American Revolutionary War. The Act was a direct tax passed by the British Parliament on various forms of paper, documents, and playing cards in the colonies.4The Stamp Act, 1765, Gilder Lehrman Institute of American History. It is from here that the rallying cry of “no taxation without representation” has its origins,5NCC Staff, On this day: “No taxation without representation!”, National Constitution Center (Oct. 7, 2022). though protests also drew a connection between “the materiality of paper documents and the ability to conduct the business of the state.”6Jonathan Senchyne, The Intimacy of Paper in Early and Nineteenth-Century American Literature, pg. 42 (University of Massachusetts Press, 2020). The Act triggered a critical shortage of paper in the decade to follow.7Eugenie Andruss Leonard, Paper as a Critical Commodity during the American Revolution, 74 Pennsylvania Magazine of History and Biography 488 (1950).

And so, as the 28-year-old Irish immigrant Dunlap, working hastily and through the evening of July 4, used whatever paper he had on hand for the broadside, the material served as a reminder of the events leading to that moment.

The Background Conditions of the Declaration

Of course, the text of the Declaration is important. Authorship is often attributed solely to Thomas Jefferson, since he wrote the first draft. But it was just as much a product of the Second Continental Congress and its process, which culminated in a committee of five to finalize the document. Besides Jefferson, the committee consisted of Benjamin Franklin, John Adams, Robert Livingston, and Roger Sherman.

The ideological origins of the Revolution are multifaceted, but the text of the Declaration opens with “an emphatic assertion of the vitality of the law of nature” that “war was necessary to achieve for the colonists ‘the separate and equal station to which the Laws of Nature and of Nature’s God entitle[d] them.’”8R.M. Helmholz, Natural Law in Court: A History of Legal Theory in Practice, pg. 128 (Harvard University Press 2015). For more on natural law and the Revolutionary era, see A.P. D’Entreves, Natural Law An Historical Survey, pg. 13 (Harper Torchbooks 1965) (“But for natural law, there would probably have been no American and no French revolution, nor would the great ideals of freedom and equality have found their way into the law-books after having found it into the hearts of men.”); Helmholz at 129-130 (“Many among the founders of the American republic and their immediate successors expressed a common regard for the law of nature… It appeared in some of the early state constitutions they created, and it was mentioned with approbation by most of the leading lights among them”); Knud Haakonssen, Early Modern Natural Law Theories, pg. 94, in Cambridge Companion to Natural Law Jurisprudence (Cambridge University Press 2017)(“The combination of moral philosophy and natural law, or the use of natural law as moral philosophy, became a common feature of the Enlightenment in Scotland as it did in many parts of Germany. It was used as a broad civic education with, in modern parlance, inter-disciplinary dimensions, the best known of which is political economy. At the same time, this form of natural law conveyed a collection of concepts that could acquire practical potency under new political circumstances. Thus in America the Protestant natural law jurisprudence was one of the tributaries to a new revolutionary politics and soon fed into the emerging constitutionalism.”); Andrew J. Reck, Natural Law in American Revolutionary Thought, 30 Review of Metaphysics 686 (1977). For the history of natural law generally, see, e.g., Frederick Pollock, The History of the Law of Nature: A Preliminary Study, 2 Journal of the Society of Comparative Legislation 418 (1900); Heinrich Rommen, Natural Law: A study in legal and social history and philosophy (B. Herder Book Co. 1947). In Jefferson’s own words, the Declaration proclaimed no “new principles, or new arguments” but rather the “harmonizing sentiments of the day” to justify the resort to arms against the British.9Letter from Thomas Jefferson to Henry Lee, May 8, 1825. There’s no shortage of scholarship regarding the sources that influenced these sentiments. I want to highlight two of those sources that receive less attention than others.

The first is Emer de Vattel (1714-1767), a philosopher and diplomat born in what is now Switzerland.10T. Buhler, “Vattel, Emer de,” in The Oxford International Encyclopedia of Legal History (Oxford University Press 2009); Mark Somos, Vattel’s Reception in British America, 1761-1775, in Concepts and Contexts of Vattel’s Political and Legal Thought (Cambridge University Press 2021); William Ossipow and Dominik Gerber, The Reception of Vattel’s Law of Nations in the American Colonies: From James Otis and John Adams to the Declaration of Independence, 57 American Journal of Legal History 521 (2017). Vattel rose to acclaim following the 1758 publication of his treatise, Law of Nations, or Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, which quickly found its way to British America. When a group of colonial lawyers, including John Adams, wrote objections to the 1765 Stamp Act, they relied on Vattel among their authorities. According to one scholar, “The founding generation used his authority to effectively declare their independence and to portray Britain as a rogue state against which confederations should be formed.11Somos at 219.

The second is Jean-Jacques Burlamaqui (1694-1748), a legal and political theorist and professor from Geneva. Like Vattel, he concentrated on natural law and ethics, and an English translation of his seminal work, The Principles of Natural and Politic Law, reached the American colonies in the 1750s.12Nathan Dorn, Burlamaqui, Leibniz and The Pursuit of Happiness, Library of Congress (July 5, 2013). Burlamaqui emphasized happiness as the end of man, government as the means for securing that end. The similarities between Burlamaqui’s writings and the Declaration’s language regarding the role of government in securing the unalienable rights of “life, liberty, and the pursuit of happiness” are striking.13John C. Ford, Natural Law and the Pursuit of Happiness, 26 Notre Dame Law Review 429, 442 n.32 (1951).

Encouraging the arts and sciences

The Declaration was printed as a broadside, a document printed on a single sheet of unfolded paper. During colonial times, printers also produced tracts (a single sheet folded into pages), pamphlets (two to five sheets folded into pages), and books.14Charles Evans, American Bibliography Volume 5: 1774-1778, pp. xiv-xv (Peter Smith 1941). Pamphlets played a major role in transmitting arguments in favor of revolution, from Thomas Paine’s Common Sense, to John Dickinson’s Letters from a Farmer in Pennsylvania, and scores more.15Bernard Bailyn, The Ideological Origins of the American Revolution (Harvard University Press 2017). The founders were huge proponents of books. “Through books they sought both knowledge and self-knowledge, the means by which better to live. For them books were not irrelevancies but bulwarks against barbarism and tyranny.”16George H. Nash, Books and the Founding Fathers, 18 University of Baltimore Law Forum 28, 30 (1988). There was a shared sense among them of the importance of the press, education, science, and literature.

But the war against Britain would first press the need for paper for more functional uses. The Continental Congress needed it for currency, records, and correspondence. The colonial armies needed paper to fight: the muzzle-loaded guns that were common at the time used cartridges consisting of a tube of paper filled with powder and shot.17Leonard at 497-98. To provide just one example of the precipitous balancing act: two weeks after the Declaration was signed, the Continental Congress passed a resolution prohibiting Pennsylvania paper makers from joining the militia, to ensure sufficient labor for manufacturing paper.18Journals of the Continental Congress 1774-1789, Volume V, pg. 593 (Washington 1906).

We know how the story of the Revolution ends. The colonists would eventually prevail and turn to constituting a more enduring government, one in which paper could be deployed toward less urgent needs and more lasting contributions to art and science. Here, Vattel and Burlamaqui both made relevant arguments about the state’s role in encouraging such contributions.

Vattel wrote,

Who can doubt that the sovereign–the whole nation–ought to encourage the arts and sciences? To say nothing of the many useful inventions that strike the eye of every beholder–literature and the polite arts enlighten the mind, and soften the manners… The nation and its conductors ought then to protect men of learning and great artists, and to call for talents by honours and rewards.19Vattel at 146.

Along the same lines, Burlamaqui included “political regulations which tend to promote the arts and commerce” among “all the institutions which men form among themselves for their common good and advantage.”20Burlamaqui at 230.

Eleven years after the Declaration was delivered from Dunlap’s press, a group of founders were back in Independence Hall to debate and draft the Constitution.21In the interim, the Thirteen Colonies had adopted the Articles of Confederation, the deficiencies of which motivated the Constitutional Convention to revise and ultimately replace the Articles. For more about copyright efforts during this period, see my previous article The Copyright Clause: American Independence in Literature. The first article of the document enumerated the legislative powers that Congress could wield. Among them, the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” — certainly not a top priority, but important enough to include.

When James Madison addressed this power in the Federalist Papers, his remark that “The utility of this power will scarcely be questioned”22Federalist No. 43 (1788). echoed Vattel’s statement that “in the present age, the utility of literature and the polite arts is pretty generally acknowledged, as is likewise the necessity of encouraging them.”23Vattel at 147.

Epilogue

The story of the American Revolution includes many characters. Roger Sherman, who was on the Committee with Jefferson to draft the Declaration of Independence, may not be one of the main characters, but he is arguably one of the strongest recurring characters. Among all the founders, he is the only one to sign all four of the foundational documents: the Continental Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. He was self-taught, and “an inveterate reader, admired Milton and Vattel.”24Julian P. Boyd, Roger Sherman: Portrait of a Cordwainer Statesman, 5 New England Quarterly 221, 227 (1932). Active in Connecticut politics, he led nonimportation efforts there following the Stamp Act. And he was a key player in the Constitutional Convention, proposing the Connecticut Compromise that removed one of the largest deadlocks facing the states.

Sherman was elected to the House of Representatives following ratification of the Constitution. In that role, he joined Representatives Elias Boudinet and Peter Silvester to draft the first copyright act.25Oren Bracha, Commentary on the U.S. Copyright Act 1790, Primary Sources on Copyright. The bill was signed into law by President George Washington on May 31, 1790.

References

References
↑1 Scott Bomboy, When is the real Independence Day: July 2 or July 4, National Constitution Center (July 2, 2024).
↑2 Frederick R. Goff, The John Dunlap Broadside: The First Printing of the Declaration of Independence (Library of Congress 1976). Five additional copies of that first printing have been found since the Goff study. Press Association, Rare copy of the US Declaration of Independence found, Guardian (July 2, 2009).
↑3 Goff notes that the total number of copies produced during this initial print run “is undetermined but cannot have been large.”
↑4 The Stamp Act, 1765, Gilder Lehrman Institute of American History.
↑5 NCC Staff, On this day: “No taxation without representation!”, National Constitution Center (Oct. 7, 2022).
↑6 Jonathan Senchyne, The Intimacy of Paper in Early and Nineteenth-Century American Literature, pg. 42 (University of Massachusetts Press, 2020).
↑7 Eugenie Andruss Leonard, Paper as a Critical Commodity during the American Revolution, 74 Pennsylvania Magazine of History and Biography 488 (1950).
↑8 R.M. Helmholz, Natural Law in Court: A History of Legal Theory in Practice, pg. 128 (Harvard University Press 2015). For more on natural law and the Revolutionary era, see A.P. D’Entreves, Natural Law An Historical Survey, pg. 13 (Harper Torchbooks 1965) (“But for natural law, there would probably have been no American and no French revolution, nor would the great ideals of freedom and equality have found their way into the law-books after having found it into the hearts of men.”); Helmholz at 129-130 (“Many among the founders of the American republic and their immediate successors expressed a common regard for the law of nature… It appeared in some of the early state constitutions they created, and it was mentioned with approbation by most of the leading lights among them”); Knud Haakonssen, Early Modern Natural Law Theories, pg. 94, in Cambridge Companion to Natural Law Jurisprudence (Cambridge University Press 2017)(“The combination of moral philosophy and natural law, or the use of natural law as moral philosophy, became a common feature of the Enlightenment in Scotland as it did in many parts of Germany. It was used as a broad civic education with, in modern parlance, inter-disciplinary dimensions, the best known of which is political economy. At the same time, this form of natural law conveyed a collection of concepts that could acquire practical potency under new political circumstances. Thus in America the Protestant natural law jurisprudence was one of the tributaries to a new revolutionary politics and soon fed into the emerging constitutionalism.”); Andrew J. Reck, Natural Law in American Revolutionary Thought, 30 Review of Metaphysics 686 (1977). For the history of natural law generally, see, e.g., Frederick Pollock, The History of the Law of Nature: A Preliminary Study, 2 Journal of the Society of Comparative Legislation 418 (1900); Heinrich Rommen, Natural Law: A study in legal and social history and philosophy (B. Herder Book Co. 1947).
↑9 Letter from Thomas Jefferson to Henry Lee, May 8, 1825.
↑10 T. Buhler, “Vattel, Emer de,” in The Oxford International Encyclopedia of Legal History (Oxford University Press 2009); Mark Somos, Vattel’s Reception in British America, 1761-1775, in Concepts and Contexts of Vattel’s Political and Legal Thought (Cambridge University Press 2021); William Ossipow and Dominik Gerber, The Reception of Vattel’s Law of Nations in the American Colonies: From James Otis and John Adams to the Declaration of Independence, 57 American Journal of Legal History 521 (2017).
↑11 Somos at 219.
↑12 Nathan Dorn, Burlamaqui, Leibniz and The Pursuit of Happiness, Library of Congress (July 5, 2013).
↑13 John C. Ford, Natural Law and the Pursuit of Happiness, 26 Notre Dame Law Review 429, 442 n.32 (1951).
↑14 Charles Evans, American Bibliography Volume 5: 1774-1778, pp. xiv-xv (Peter Smith 1941).
↑15 Bernard Bailyn, The Ideological Origins of the American Revolution (Harvard University Press 2017).
↑16 George H. Nash, Books and the Founding Fathers, 18 University of Baltimore Law Forum 28, 30 (1988).
↑17 Leonard at 497-98.
↑18 Journals of the Continental Congress 1774-1789, Volume V, pg. 593 (Washington 1906).
↑19 Vattel at 146.
↑20 Burlamaqui at 230.
↑21 In the interim, the Thirteen Colonies had adopted the Articles of Confederation, the deficiencies of which motivated the Constitutional Convention to revise and ultimately replace the Articles. For more about copyright efforts during this period, see my previous article The Copyright Clause: American Independence in Literature.
↑22 Federalist No. 43 (1788).
↑23 Vattel at 147.
↑24 Julian P. Boyd, Roger Sherman: Portrait of a Cordwainer Statesman, 5 New England Quarterly 221, 227 (1932).
↑25 Oren Bracha, Commentary on the U.S. Copyright Act 1790, Primary Sources on Copyright.

Friday’s Endnotes – 06/26/26

By , June 26, 2026.

Nearly 400 local newspapers sue OpenAI, Microsoft over alleged copyright theft — The lawsuits challenging the unauthorized use of copyrighted works to train Large Language Models do not appear to be slowing down. This latest, from a large coalition of local newspapers, is the first to be filed by the law firm Platkin LLP, which was created earlier this year by former New Jersey Attorney General Matthew J. Platkin.

En Banc Ninth Circuit to Reconsider Copyright’s Total Concept and Feel Test — It is not often that one of the major copyright jurisdictions revisits a fundamental doctrine that has been in place for five decades, but a recent grant of en banc review by the Ninth Circuit will reconsider the substantial similarity standard for copyright infringement.

WIPO Alert Pay Aims to Cut Off Piracy Profits with Help from Payment Providers — Torrentfreak’s Ernesto Van Der Sar reports on WIPO’s new “Alert Pay” initiative, a voluntary cooperative effort between copyright owners and payment service providers like Mastercard and PayPal that enables rightsholders to flag pirate site uses of payment services.

Luca Guadagnino’s Nearly Finished Sam Altman Movie ‘Artificial’ Dropped by Amazon After OpenAI Partnership — The film stars Andrew Garfield as the OpenAI CEO and focuses on the period in 2023 when Altman was briefly fired by the company’s board and then rehired. Variety reports the dropping of the film, which has already had test screenings, “notably comes after Amazon struck a massive partnership with the tech company in February to expand OpenAI’s use of Amazon Web Services and develop custom AI models.”

News, cultural groups want clarity on copyright after Ottawa releases AI strategy — The groups have noted that the government’s strategy, which includes additional funding for AI and encourages Canadian’s use of the technology, does not mention copyright once and “want the government to state it will not introduce an exemption to the law allowing companies to use copyrighted content for AI system training.”

Fair use and free offerings: what ASTM v. UpCodes gets wrong

By , June 22, 2026.

Should fair use give an advantage to certain business models?

The obvious answer is no. All things being otherwise equal, fair use should not privilege the use of copyrighted works merely because of the business model adopted by the user. That is, independent of the purpose and character of the use and the effect of the use upon the potential market for or value of the copyrighted work, the choice of business model by the user should not weigh in favor of fair use.

But a recent Third Circuit decision appears to have done just that.

In American Society for Testing Materials (ASTM) v. UpCodes, the court in April considered whether the copying of ASTM’s copyrighted building codes by for-profit startup UpCodes was permitted by fair use.1No. 24-2965 (3d. Cir. 2026). Fair use requires courts to consider four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.217 USC § 107.

A determination under the first factor that a use “is of a commercial nature” in theory weighs against fair use, though it is not dispositive.3H.R. Rep. No. 94-1476 (1976) (the language “is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.”); Google LLC v. Oracle Am., Inc., 593 U.S. 1, 32 (2021). The caution against placing too much weight on this subfactor is driven in part because of the observation that “nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research … ‘are generally conducted for profit in this country.'”4Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994).

The Third Circuit began its discussion of commerciality by describing the defendant’s business model.

UpCodes uses a “freemium” business model. Any user who makes an account on UpCodes’ website can view and copy building codes and incorporated standards for free. UpCodes also offers an optional paid subscription that provides access to bookmarking, annotation, automation, and artificial intelligence tools.

It concluded that the subfactor favors neither party.

Primarily, it agreed with the district court’s conclusion that UpCodes’ use was “largely noncommercial”, distinguishing the free access to the works provided by UpCodes from the use in an earlier Third Circuit decision, Video Pipeline, Inc. v. Buena Vista Home Entertainment, which was held to be commercial because the defendant charged a fee to access the copyrighted works at issue.5342 F.3d 191 (3d Cir. 2003). It acknowledged UpCodes is a for-profit company, but said its for-profit status “is moderated by the fact that users pay for access to UpCodes’ proprietary tools and technology, not for access to the Works.”

The court also considered the indirect commercial advantage UpCodes might reap from the copying, but said such advantage “carries less weight than evidence of direct profit,” and the manner and extend of the benefit here “remains unclear.”

The Third Circuit distorted the commerciality inquiry by treating free public access to copyrighted works as noncommercial or only weakly commercial.6ASTM‘s reliance on Video Pipeline‘s holding that “defendant’s use was commercial because it charged a fee” to draw a distinction is flawed because it denies the antecedent. See Khalil v. President, 164 F.4th 259, 283 (3d Cir. 2026) (J. Freeman dissenting) (This “fallacy extrapolates an ‘if-then’ statement to mean if the initial condition is reversed, then the outcome will necessarily be reversed. For example, consider the statement ‘if it is not cold outside, there is no snow.’ It does not follow that ‘if it is cold outside, there is snow.'”). In digital markets, free access is often part of a broader commercial strategy rather than an absence of commercial activity.

The freemium business model employed by UpCodes, which combines a free level of service with a premium, paid level of service, is very popular among digital services.7Yanying Shang, Junfeng Jiang, Yamin Zhang, Ruochen Zhang, Peiqing Liu, When does a freemium business model lead to high performance? A qualitative comparative analysis based on fuzzy sets,
Heliyon, Volume 10, Issue 3 (2024). Ad-supported services and two-sided markets like social media services and search engines also commonly provide zero-price access to content as part of broader revenue generating models. The fact that nearly every successful online service employs some version of these models demonstrates the commercial benefits of zero-price offerings.

By conflating “free to the user” with “noncommercial,” the Third Circuit risks transforming fair use into a subsidy for particular digital business models. A platform that acquires audience attention, advertising revenue, market share, data, network effects, or other strategic advantages through the unlicensed use of copyrighted works is engaging in commercial activity even if there is no direct charge for access the works themselves. The relevant question should not be whether the user paid a price, but whether the defendant used copyrighted expression as an input into a broader profit-seeking enterprise. Indeed, USC Law Professor Jonathan Barnett argues in his 2024 book, The Big Steal, that tech platforms have deliberately sought to weaken copyright, including through expanding the scope of fair use, to reduce their costs of securing content, which they then monetize within their broader services.

ASTM‘s flawed commerciality analysis spills over into other parts of the fair use analysis. In its consideration of the purpose and character of the use, the Third Circuit rejects plaintiffs argument “that both parties share an identical purpose of making the Works available to the public on a subscription basis.” Says the court,

This characterization is not supported by the record. First, ASTM does not make the Works available to the public; it makes them available to those who pay for them. Second, UpCodes does not make the Works available on a subscription basis; it makes the Works available to all users, regardless of subscription status, and offers a paid subscription for advanced features.

This language is confusing and unhelpful. To be clear, I don’t believe the Third Circuit is saying that the fact that the defendant is providing free access to copyrighted works that the plaintiff charges for should weigh in favor of fair use. That would be illogical: any infringer can and does offer access to copyrighted works for free, or at least a lower price then the copyright owner charges. That is the very scenario copyright law exists to prevent. But it certainly doesn’t help future courts in viewing zero-price offerings as just another commercial strategy.

The ability of copyright owners to control pricing, including the decision to distribute a work for free, is one of the fundamental interests copyright protects. Offering another person’s work at a lower price, or at a price of zero, does not otherwise negate commerciality or indicate a public benefit.

References

References
↑1 No. 24-2965 (3d. Cir. 2026).
↑2 17 USC § 107.
↑3 H.R. Rep. No. 94-1476 (1976) (the language “is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.”); Google LLC v. Oracle Am., Inc., 593 U.S. 1, 32 (2021).
↑4 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994).
↑5 342 F.3d 191 (3d Cir. 2003).
↑6 ASTM‘s reliance on Video Pipeline‘s holding that “defendant’s use was commercial because it charged a fee” to draw a distinction is flawed because it denies the antecedent. See Khalil v. President, 164 F.4th 259, 283 (3d Cir. 2026) (J. Freeman dissenting) (This “fallacy extrapolates an ‘if-then’ statement to mean if the initial condition is reversed, then the outcome will necessarily be reversed. For example, consider the statement ‘if it is not cold outside, there is no snow.’ It does not follow that ‘if it is cold outside, there is snow.'”).
↑7 Yanying Shang, Junfeng Jiang, Yamin Zhang, Ruochen Zhang, Peiqing Liu, When does a freemium business model lead to high performance? A qualitative comparative analysis based on fuzzy sets,
Heliyon, Volume 10, Issue 3 (2024).

Friday’s Endnotes – 06/19/26

By , June 19, 2026.

Publishers Sue WeLib for Copyright Infringement — The new lawsuit comes quickly on the heels of a default judgment against similar pirate site Anna’s Archive. According to the complaint, the illicit site boasts over 43 million books and 98 million papers, attracts over 80,000 active monthly users, and offers premium access starting at $7 month.

The Real-World Implications of the Supreme Court’s Cox Decision — Does the recent Supreme Court decision in Cox v. Sony upset the balance Congress struck between protecting authors and creators online and limiting exposure to liability for intermediaries? Keith Kupferschmid thinks it might, and writes here that “Congress should be watching carefully to ensure bad actors don’t exploit Cox.”

Reconstructing the Author, Not Re-Privatising the Text: The EU concept of work after Institutul G. Călinescu — A discussion of a recent decision from the Court of Justice of the European Union (CJEU) which considered a dispute over a critical edition of a public domain work, “involving collation, corrections, additions, comments and a critical apparatus.” The CJEU examined the issue through the lens of the EU’s originality threshold and, according to the author of this article, “consolidates the autonomous EU concept of work, applies the personality-based originality standard to derivative scholarly production, and sensibly permits the critical edition to be assessed as an integrated whole.”

Japan passes copyright reform giving performers and record companies royalties when recordings play in public, including overseas — The nation was one of the small number of OECD countries that did not extend protection to performers and labels for the public performance of sound recordings in public venues. With this legislative fix, Japaneses performers and labels will not only begin to receive royalties for such performances in their own country, but also begin to receive reciprocal payments from other countries where their works are publicly performed.

Journalistic Work Must Be Paid, but the Public’s Right to Information Will Still Be Guaranteed — Indonesia’s Press Council recently called attention to the sustainability of that country’s journalism and media ecosystem and proposed that any use of journalistic works for commercial purposes must be licensed and subject to royalty payments as part of the revision of Indonesia’s Copyright Law. As elsewhere around the world, the emergence of AI has increased pressure on the industry.

Friday’s Endnotes – 06/12/26

By , June 12, 2026.

Rare Full Court Rehearing Granted in Copyright Case Against Kat Von D’s Miles Davis Tattoo — It’s rare for a Circuit Court to rehear a case en banc. Even more rare: one of the leading copyright circuits to grant en banc rehearing to consider its long-standing, foundational precedent on the standard for copyright infringement. Copyright land will be paying close attention to this one.

The Importance of Copyright for African and Latin American Publishers — Report from an event organized by International Publishers Association during the 48th session of WIPO’s Standing Committee on Copyright and Related Rights, where representatives of publishers from African and Latin American countries met to discuss the challenges and opportunities for publishers. A common theme emerged: “while improving access to education and knowledge is an essential policy goal, weakening copyright protections in emerging publishing markets could undermine the very systems that sustain local authorship, educational production, and cultural diversity.”

AI company argues its use of scraped Westlaw legal data was transformative — A panel of Third Circuit judges heard oral arguments yesterday in Thomson Reuters v. ROSS Intelligence, the first case to reach an appellate court on the issue of fair use of copyrighted works to train an artificial intelligence model. Courthouse News reports on the arguments, which suggested some skepticism from the judges toward the AI developer’s arguments.

Generative AI and Copyright: The Significance of GEMA v. OpenAI (Munich, 2025) — Legal analysis of last November’s decision from the Regional Court of Munich in Germany, one of the earliest and most significant rulings on the use of copyrighted works to train generative AI models in continental Europe. The court there found that AI training and outputs may infringe copyright where song lyrics from identifiable works are reproduced in model outputs.

Pressing the Reset Button on Volitional Conduct

By , June 08, 2026.

The Supreme Court’s solo foray into copyright this term, Cox v. Sony, has shaken up the landscape of secondary liability.

In its wake, a growing chorus of voices have noted that direct liability under copyright law needs a fresh look, particularly the doctrine of volitional conduct. Shortly after the decision was published, law professor Guy Rub wrote, “If contributory liability becomes harder to prove, plaintiffs might lean more heavily on direct liability. That means revisiting doctrines that have traditionally limited it, especially volitional conduct.” Similarly, and more recently, attorney Aaron Moss wrote, “But as secondary liability narrows in Cox‘s wake, the doctrine that may shape the next phase of AI litigation—the fight over its outputs—lives on the direct infringement side of the line. It’s volitional conduct, a judge-made rule that decides who’s responsible when an automated system makes an infringing copy.”

They have a point. At best, volitional conduct is an unnecessary synonym for proximate causation, and an imprecise application of the doctrine.1Robert C. Denicola, Volition and Copyright Infringement, 37 Cardozo Law Rev. 1259, 1268-70 (2016). At worst, it stands for an irrational “who pressed the button test.”2See Cartoon Network LP v. CSC Holdings, 536 F.3d 121, 131 (2d Cir. 2008) (“the person who actually presses the button to make the recording [] supplies the necessary element of volition, not the person who manuactures, maintains, or, if distinct from the operator, owns the machine”); see also Fox Broad. Co. v. Dish Network, 747 F.3d 1060, 1067 (9th Cir. 2014); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir. 2004); Disney Enters. v. Hofile Corp., 798 F. Supp. 2d 1303, 1308 (S.D. Fla. 2011). Such a test does not align with general tort principles, nor is it consistent with the Copyright Act or its goals. And as Moss points out, Cox comes at a time when it is especially vital to get these issues right, as AI ushers in an era where systems are being developed that can engage in increasingly sophisticated autonomous acts at the press of a button.

Where did the volitional conduct doctrine come from? The Copyright Act provides that “Anyone who violates any of the exclusive rights of the copyright owner … is an infringer of the copyright.”317 USC § 501(a). In an early decision involving a copyright infringement claim against an ISP, the Northern District of California said, “Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.” It was wary of “a theory of infringement that would hold the entire Internet liable for activities that cannot reasonably be deterred.” But it noted that even if an ISP was free from direct liability under its theory, it may still be liable under a theory of secondary liability.

Appellate courts embraced the Netcom decision and expanded it in several unhelpful ways.

In CoStar Grp. v. LoopNet, the Fourth Circuit read Netcom as an almost categorical rule that “the automatic copying, storage, and transmission of copyrighted materials, when instigated by others” does not create direct liability under the Copyright Act.4373 F.3d 544, 555 (4th Cir. 2004). And it went one step further by holding that the additional act of the ISP in this case of screening user-uploaded photographs to a commercial real estate listings website it operated does not change its conclusion, drawing a dissent that said, “the majority expands the non-volitional defense well beyond Netcom and subsequent holdings, and gives direct infringers in the commercial cybersphere far greater protections than they would be accorded in print and other more traditional media.”

The Second Circuit made CoStar’s expansion look modest in comparison. Cartoon Network v. CSC Holdings rejected the lower court’s conclusion that Netcom was “premised on the unique attributes of the Internet,” and held that a cable service was not directly liable for copying live television programming to allow for later viewing.5536 F.3d 121 (2d Cir. 2008). The volitional conduct doctrine was now available to service providers who designed, implemented, and operated their own enterprise services—services which provide access to copyrighted content that users wouldn’t otherwise have and derive economic value from that content. This was a sharp departure from the passive, conduit ISP at issue in Netcom and the policy concerns that drove that decision.

ABC v. Aereo presented the Supreme Court with the first natural opportunity to consider the volitional conduct doctrine.6573 U.S. 431 (2014). Somewhat surprisingly, the majority did not rely on the Netcom framework nor even mention volition. But a dissenting opinion did—Justice Scalia described the volitional-conduct requirement as a given, calling it “firmly grounded in the Act’s text” and “fully consistent” with precedent.7573 U.S. at 453-455 (J. Scalia dissent).

What’s more surprising is that later courts seem to have followed the Aereo dissent more than the majority. Several circuit courts rejected arguments Aereo pressed delete on the volitional conduct doctrine, characterizing the majority’s silence as tacit acquiescence.8Perfect10, Inc. v. Giganews, Inc., 847 F.3d 657 (9th Cir. 2017); BWP Media United States v. T & S Software Assocs., 852 F.3d 436 (5th Cir. 2017).

Despite the (sometimes reflexive) acceptance of the doctrine in lower courts, it has attracted just as much, if not more, doctrinal criticism.9One noteworthy judicial debate arose in the Second Circuit’s BWP Media v. Polyvore decision, which consisted of a brief per curiam statement indicating its ruling and three separate concurring opinions on the volitional conduct requirement. In the previously mentioned article from Prof. Rub, he says it “has always been somewhat fragile: thin textual grounding, no clear Supreme Court endorsement, and uneven (and somewhat unclear) lower court application.”

Among its most fundamental flaws, it reduces the scope of liability to a single inquiry: who was the final party to take an action in the process of copying. It insists that in factual scenarios arising in the digital and online environment there is a single, unique causal actor. It doesn’t allow for joint or multiple causal actors. It ignores all the affirmative steps involved in designing, implementing, and operating an automated system that makes the copying possible in the first place and allows capture of commercial value from that copying.

More importantly, the volitional conduct doctrine arose within a legal framework in which secondary liability served as a backstop. For example, Justice Scalia wrote in his Aereo dissent, “The distinction between direct and secondary liability would collapse if there were not a clear rule for determining whether the defendant committed the infringing act. The volitional-conduct requirement supplies that rule; its purpose is not to excuse defendants from accountability, but to channel the claims against them into the correct analytical track.”10573 U.S. at 455 (J. Scalia dissent). Because volitional conduct and secondary liability are intertwined, to the extent Cox has redefined the standard for secondary liability, courts should accordingly reconsider the standard for direct liability.

At a minimum, courts should reject the “who pressed the button” version of volitional conduct. They can look instead to well-established principles of proximate causation11Note that the term “proximate causation” has drawn disfavor, see, e.g., Restatement (Third) of Torts, § 29 cmt. b (2010). to better allocate direct liability on actors who are factual causes of copying, including actors who design, implement, and operate automated systems. Actors should not be able to evade direct liability simply because they are able to automate their service or design it so it requires user initiation, and copyright owners should not be precluded from seeking relief from infringement against a least-cost avoider.

This will ensure the exclusive rights remain meaningful.

It does not, however, mean the floodgates of direct liability would open. Courts could, for example, continue to decide that ISPs like Netcom, doing no more than engaging in the automated, temporary, indiscriminate copying of all data that moves through their systems as part of a larger, interconnected network, are not directly liable for any infringement initiated by their users. Additionally, the DMCA would still operate as a shield against uncertainty over the scope of liability since the safe harbors apply to both direct and secondary liability claims.

References

References
↑1 Robert C. Denicola, Volition and Copyright Infringement, 37 Cardozo Law Rev. 1259, 1268-70 (2016).
↑2 See Cartoon Network LP v. CSC Holdings, 536 F.3d 121, 131 (2d Cir. 2008) (“the person who actually presses the button to make the recording [] supplies the necessary element of volition, not the person who manuactures, maintains, or, if distinct from the operator, owns the machine”); see also Fox Broad. Co. v. Dish Network, 747 F.3d 1060, 1067 (9th Cir. 2014); CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir. 2004); Disney Enters. v. Hofile Corp., 798 F. Supp. 2d 1303, 1308 (S.D. Fla. 2011).
↑3 17 USC § 501(a).
↑4 373 F.3d 544, 555 (4th Cir. 2004).
↑5 536 F.3d 121 (2d Cir. 2008).
↑6 573 U.S. 431 (2014).
↑7 573 U.S. at 453-455 (J. Scalia dissent).
↑8 Perfect10, Inc. v. Giganews, Inc., 847 F.3d 657 (9th Cir. 2017); BWP Media United States v. T & S Software Assocs., 852 F.3d 436 (5th Cir. 2017).
↑9 One noteworthy judicial debate arose in the Second Circuit’s BWP Media v. Polyvore decision, which consisted of a brief per curiam statement indicating its ruling and three separate concurring opinions on the volitional conduct requirement.
↑10 573 U.S. at 455 (J. Scalia dissent).
↑11 Note that the term “proximate causation” has drawn disfavor, see, e.g., Restatement (Third) of Torts, § 29 cmt. b (2010).

Friday’s Endnotes – 06/05/26

By , June 05, 2026.

News publishers take fight over copyright of embedded content to Fifth Circuit — The Fifth Circuit heard oral arguments this week in a dispute between a local news publisher and an online news aggregator over alleged public display of news articles on the aggregator’s app. The key question for the court is whether to follow the plain text of the Copyright Act or adopt the Ninth Circuit’s “server test.”

Cox and Effect: Why Volitional Conduct Is AI Copyright’s Next Battleground — Copyright Lately’s Aaron Moss considers whether we will see renewed attention on the “volitional conduct” doctrine in the wake of the Supreme Court’s decision in Cox v. Sony. Moss notes it will likely emerge as a key issue when courts confront the allocation of liability over the generation of infringing outputs by generative AI models.

Tanzania Pushes for Robust African Copyright Framework at CISAC Summit in Paris — Report from the CISAC Regional Committee for Africa meeting about the vigorous efforts by the delegation from the Copyright Society of Tanzania to strengthen protections for African artists and creatives in the face of artificial intelligence. Participants specifically called for vigorous ownership verification systems, combatting AI data scraping, modernizing royalty distribution, and cross-border institutional cooperation.

Creative and cultural sector gets further copyright support — The government of New Zealand announced a proposed set of changes to its copyright law which include updating exceptions for museums, libraries, galleries, and archives; offshore piracy website blocking; and a twenty year term extension. The country’s Commerce and Consumer Affairs Minister also announced a possible copyright framework for generative AI in New Zealand that he will report in March 2027.

Top Noteworthy Copyright Stories from May 2026 — The Copyright Alliance runs down key developments from a busy month, with updates from the US Copyright Office, the courts, Congress, and in the international space.

Copyright, Takings, and Electronic Copies

By , June 01, 2026.

The Fifth Amendment of the US Constitution prohibits the federal government from taking private property for public use without just compensation, embracing a principle at least as old as Cicero, who wrote in his 44 BCE book On Duties, “he who will administer a commonwealth must especially see to it that each person keeps what is his and that no public confiscation of private goods occurs.”1Marcus Tullius Cicero, On Duties, pg. 118 (Cornell Univ. Press 2016).

But this is not an article about the Takings Clause. It instead uses a recent lawsuit involving the Takings Clause as a springboard to consider a threshold point, which is this: a government taking of a digital copy of a copyrighted work does not convey any of the exclusive rights under 17 USC § 106 to the government. This is such a critical point that, though obvious to anyone with a working knowledge of copyright law, bears stating upfront so as to be clear about the proper scope of the takings inquiry.

Earlier this year, a federal district court in Valancourt v. Perlmutter entered final judgment in longstanding litigation brought by a small independent publisher to challenge the mandatory deposit provisions in 17 USC § 407 under the Takings Clause and Free Speech Clause.2Valancourt Books, LLC v. Perlmutter, 2026 U.S. Dist. LEXIS 63414. The judgment came following remand from a 2023 DC Circuit decision that held “that the mandatory deposit requirement, as applied by the Copyright Office against Valancourt, was an uncompensated taking in violation of the Fifth Amendment.”3Valancourt Books, LLC v. Garland, 82 F.4th 1222, 1226 (DC Cir. 2023).

The mandatory deposit provisions of the Copyright Act state that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication . . . two complete copies of the best edition” of the work.417 USC § 407(a)(1). These copies “shall be deposited in the Copyright Office for the use or disposition of the Library of Congress.”517 USC § 407(b). To enforce the mandatory deposit requirement, the Copyright Office may make a written demand for the required deposit. A copyright owner who fails to make the “required deposit” within three months of a demand becomes liable for a “fine of not more than $250 for each work,” with an additional $2,500 fine for willful or repeated failure or refusal to comply with demands.617 USC § 407(d). (Note that copies of works submitted as part of an application for copyright registration under 17 USC § 408 satisfy the mandatory deposit requirement, but the mandatory deposit requirement applies even if a copyright owner does not register their work.)

In June 2018, the U.S. Copyright Office sent an email to Valancourt demanding the publisher deposit one physical copy of each of 341 works with the Library of Congress pursuant to the mandatory deposit provisions, subsequently revising the number of requested books to 240 in an updated demand letter sent in August 2018. In its final judgment, the district court issued a declaration that the August 2018 demand letter violates the Takings Clause and enjoined the Copyright Office from enforcing that demand.

This final decision, addressing only the demand for physical copies, leaves a number of issues open, among them, whether a demand for deposit of an electronic copy without compensation would violate the Takings Clause.7The decision also leaves open the question of whether 17 USC § 407 violates the First Amendment. The DC Circuit declined to reach the First Amendment claim after holding the demand violated the Takings Clause, as it sought the same relief. 82 F.4th at 1226. The DC Circuit explained that it wouldn’t proceed with that question because “neither party appears to ask us to reach the question, and because the presentation of the case does not require us to do so.” It deferred to the district court’s observation that the “analysis might raise unique questions,” such as “how the principles of the Takings Clause ‘developed in the context of ‘real property’ . . . would apply to a requirement that can be fulfilled by the transmission of digital copies.’”8Neither of the two courts acknowledged Supreme Court precedent applying the Takings Clause to intangible property; see, e.g., Ruckelshaus v Monsanto, 467 US 986, 1003 (1984) (“the Court has found other kinds of intangible interests to be property for purposes of the Fifth Amendment’s Taking Clause… That intangible property rights protected by state law are deserving of the protection of the Taking Clause has long been implicit in the thinking of this Court.”

But regardless of whether a government demand for deposit of an electronic copy requires compensating the copyright owner, there is a risk that a court or the government will conflate possession of the copy with transfer of the copyright. This is a bedrock principle of copyright law. Section 202 of the Copyright Act states, “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object.”

If the government acquires a digital copy under the mandatory deposit provision, it cannot make additional copies, public performances, or public displays of the work, or exercise any of the other exclusive rights of the copyright owner. The statute provides only that such copies acquired through deposit are “for the use or disposition of the Library of Congress.”917 USC § 407(b). This language does not express any departure from Section 202 or the rest of the Copyright Act and so must be read to limit the Library to using the copy only in ways that do not implicate the copyright owner’s rights. To put it another way, no one would argue that when the Library of Congress acquires a physical book that it is permitted to reproduce additional copies of that book under the “use or disposition” language.

The use and disposition of digital copies is rather limited. Many uses of digital copies may in fact implicate the exclusive right of reproduction, a point the U.S. Copyright Office has long noted. For example, in its 2001 DMCA Section 104 Report, the Office wrote, “All of the familiar activities that one performs on a computer — e.g., execution of a computer program, retrieval and display of information, browsing the World-Wide Web — necessarily entail making reproductions in RAM,” and such reproductions “are generally ‘fixed’ and thus constitute ‘copies’ that are within the scope of the copyright owner’s reproduction right.”10Section 104 Report at 107-110. The Office cited to that discussion in a 2016 report on Software-Enabled Consumer Products, adding, “It appears that the RAM copy doctrine is today firmly established as a matter of case law.”11Software-Enabled Consumer Products Report at 19 n.101.

There is also an open question as to what authority the Library of Congress would have to display to members of the public digital copies in its collections of works that are still protected by copyright law. A copyright owner has the exclusive right to display a work publicly.1217 USC § 106(5). The Act defines “display” to mean “show[ing] a copy of [the work], either directly or by means of a film, slide, television image, or any other device or process,” and it defines displaying a work “publicly” to mean, in relevant part, to display it at “a place open to the public …or… to transmit or otherwise communicate a … display of the work to a place [open to the public].”1317 USC § 101. Section 109(c) creates an exception that permits the owner of a particular, lawfully made copy to display that copy publicly “either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.” The plain text of these provisions would appear to permit the public display of a digital copy stored locally, i.e., on or near the device on which it is being viewed. The text would not appear to permit the public display when the digital copy is stored off site or in the cloud, since viewers would not be present at the same place where the copy is located. (Additionally, Section 109(c) is only an exception to the public display right and would not apply to any reproductions made as a result of any digital transmissions.)

Any uses of the work that implicate the copyright owner’s exclusive rights would require action by Congress to be permitted. Congress knows how to create exceptions for such a purpose when it wants to. For example, rather than relying solely on copyright owners of programs transmitted to the public to deposit copies of such works in the Library of Congress, Congress has authorized the Library itself “to make a fixation of a transmission program directly from a transmission to the public, and to reproduce one copy or phonorecord from such fixation for archival purposes.”1417 USC § 407(e)(1). The existence of this exception provides further support for the points made above regarding the use and disposition of digital copies acquired by the Library.

The public undoubtedly benefits from the collections of the Library of Congress, which encompass an unparalleled collection of historically and culturally significant works that are the product of the creativity, talents, and knowledge of countless individuals. But the Fifth Amendment of the Constitution limits the government’s ability to compel private individuals to subsidize public benefits by requiring compensation for any such takings. When the subject of a governmental taking is electronic copies of copyrighted works, then the analysis must begin with the understanding that the government’s acquisition of the copy does not also convey the exclusive rights to the work embodied in the copy.

References

References
↑1 Marcus Tullius Cicero, On Duties, pg. 118 (Cornell Univ. Press 2016).
↑2 Valancourt Books, LLC v. Perlmutter, 2026 U.S. Dist. LEXIS 63414.
↑3 Valancourt Books, LLC v. Garland, 82 F.4th 1222, 1226 (DC Cir. 2023).
↑4 17 USC § 407(a)(1).
↑5 17 USC § 407(b).
↑6 17 USC § 407(d).
↑7 The decision also leaves open the question of whether 17 USC § 407 violates the First Amendment. The DC Circuit declined to reach the First Amendment claim after holding the demand violated the Takings Clause, as it sought the same relief. 82 F.4th at 1226.
↑8 Neither of the two courts acknowledged Supreme Court precedent applying the Takings Clause to intangible property; see, e.g., Ruckelshaus v Monsanto, 467 US 986, 1003 (1984) (“the Court has found other kinds of intangible interests to be property for purposes of the Fifth Amendment’s Taking Clause… That intangible property rights protected by state law are deserving of the protection of the Taking Clause has long been implicit in the thinking of this Court.”
↑9 17 USC § 407(b).
↑10 Section 104 Report at 107-110.
↑11 Software-Enabled Consumer Products Report at 19 n.101.
↑12 17 USC § 106(5).
↑13 17 USC § 101.
↑14 17 USC § 407(e)(1).

Friday’s Endnotes – 05/29/26

By , May 29, 2026.

CNN Sues AI Firm Perplexity, Alleging It Engaged in ‘Massive Copyright Infringement’ — “In the 54-page federal complaint, CNN points to Perplexity’s former ads claiming that it helps users skip the ‘extra steps and clicks’ they’d normally take to access news content. The network said it spoke to Perplexity about a deal last year but could not agree on terms, including restrictions on how the company’s chatbot uses CNN’s content.”

VerticalScope sues OpenAI, claims AI giant infringed copyright by scraping content to train GPT models — “Filed in the Ontario Superior Court of Justice on Tuesday, VerticalScope’s statement of claim alleges that OpenAI’s misuse of its content unjustly enriched the San Francisco-based AI giant. The Canadian company is seeking damages and a permanent injunction to stop OpenAI from scraping its content.”

China’s MiniMax loses bid to end Disney copyright lawsuit over AI system — “MiniMax argued that the California court could not hear the case because the company does all of its business in China. But Blumenfeld said there was evidence ​that the company was ​offering the Hailuo ⁠app in the United States.”

X is Cracking Down on Accounts That Rip Off the Work of Photographers and Other Creators — “In an announcement, X’s head of product Nikita Bier says his team has ‘identified a number of large accounts that have been programatically reuploading content.’ Bier says these accounts will circumvent crediting the original author.”

Pass Go, Collect Copyright: The Legal Side of Board Games — “Board games are fun, engaging and a treasure trove of IP protection. Board games are a great example of how copyright draws that line: the mechanics are free for anyone to use, but the creative choices: the artwork, the wording, the overall look and feel, are where protection sits.”

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