Friday’s Endnotes – 11/08/24

By , November 08, 2024.

Ed Sheeran’s ‘Thinking Out Loud’ Win Upheld by Second Circuit — “Park said the elements focusing on a similar chord progression and syncopated rhythm that plaintiff Structured Asset Sales LLC argued were infringing weren’t original enough to be protectable under copyright law. He added the songs weren’t ‘substantially similar taken as a whole’ and that no reasonable jury would find that Sheeran copied [Marvin] Gaye’s song.”

October 2024 Roundup of Copyright News — From the Copyright Alliance’s Rachel Kim, a “quick snapshot of some of copyright-related activities that occurred during the month of October as well as a few events to look forward to in November.”

Artist Deborah Roberts Receives Mixed Ruling in Contentious Copyright Dispute — Decision here. The lawsuit was brought by a renowned collage artist against a gallery and artist who created works that are alleged to mimic Roberts’ distinctive style. On a motion to dismiss, the court dismissed copyright claims against nine of the allegedly infringing works but allowed claims against six to proceed. The court also dismissed Roberts’ trade dress claim.

Prompts as code? — “Some of the more complex prompts would probably be protectable as a “normal” literary text, but it is also true that these are instructions for a generative AI system, i.e., a computer, to perform a function. Advanced prompts often involve specific syntax, parameters, and even logical operators to refine the AI’s output. This structured approach mirrors the logic and organization found in traditional programming languages.”

UMG Sues Believe and TuneCore for $500 Million, Alleging ‘Industrial-Scale Copyright Infringement’ — “Universal Music Group, ABKCO and Concord claim that Believe has achieved significant growth by acting as a hub for distributing unauthorized copies of copyrighted recordings to major platforms including TikTok, YouTube, Spotify, Apple Music and Instagram. UMG et al allege: ‘Often, Believe distributes overtly infringing versions of original tracks by famous artists with notations that they are “sped up” or “remixed”.'”

Friday’s Endnotes – 11/01/24

By , November 01, 2024.

US Copyright Office Response to October 25, 2024 Committee on House Administration Letter Regarding Initiative on Copyright and Artificial Intelligence — “While our self-imposed, ambitious timelines have shifted by a few months, due in part to competing statutory and judicial deadlines, we are well along in the process of producing the rest of the report. Our current goal is still to complete the other two parts by the end of 2024. However, given the complexities of the issues involved and the important public interest, we must prioritize the quality and soundness of our analysis over strict adherence to the target dates that we set. We will keep the Committee informed of any further timing adjustments.”

What Intellectual Property Policy Should Look Like in the Age of AI — “As we near the end of 2024, policy discussions about AI and IP should prioritize the rights of creators and innovators while upholding the principles that have long governed our IP system.”

Turn the Bill Around: Is 2024 a Turning Point for Copyright? — “Over the last decade, South Africa, India, and Mexico each introduced a series of legislative proposals, with varying effects on the copyright community. After years of sitting stagnant, summer 2024 brought movement on all three fronts.”

Infringing AI: Liability for AI-generated outputs under international, EU, and UK copyright law — “Empirical research shows that large generative AI models may memorize training data which may include or consist of copyright-protected works and other protected subject-matter, or parts thereof. When prompted appropriately, these models may produce outputs that closely resemble such works and other subject-matter.”

Geoblocking measures sufficient to prevent a “communication to the public”? The CJEU gets a second chance — “The central issue for the Dutch Supreme Court is whether the making available of the works by Stichting et al on a Belgian website, even if geoblocked, still constitutes a communication to the public in the Netherlands, given that users can circumvent this geoblocking measure by using a virtual private network (VPN) or similar service.”

Friday’s Endnotes – 10/25/24

By , October 25, 2024.

Thom Yorke and Julianne Moore join thousands of creatives in AI warning — “‘The unlicensed use of creative works for training generative AI is a major, unjust threat to the livelihoods of the people behind those works, and must not be permitted,’ reads the statement. Thousands of creative professionals from the worlds of literature, music, film, theatre and television have given their backing to the statement, with authors including Kazuo Ishiguro, Ann Patchett, and Kate Mosse, musicians including the Cure’s Robert Smith as well as the composer Max Richter and actors including Kevin Bacon, Rosario Dawson and F Murray Abraham.”

Former OpenAI Researcher Says the Company Broke Copyright Law — “Mr. Balaji, 25, who has not taken a new job and is working on what he calls ‘personal projects,’ is among the first employees to leave a major A.I. company and speak out publicly against the way these companies have used copyrighted data to create their technologies. A former vice president at the London start-up Stability AI, which specializes in image- and audio-generating technologies, has made similar arguments.”

Dow Jones and New York Post Sue AI Startup Perplexity, Alleging ‘Massive’ Copyright Infringement — “News Corp‘s Dow Jones & Co., publisher of the Wall Street Journal, and the New York Post have sued Perplexity, a startup that calls itself an ‘AI-powered Swiss Army Knife for information discovery and curiosity,’ alleging copyright infringement.”

Copyright Claims Board Releases Key Statistics — “The data paints a mostly positive picture of the CCB. It’s seeing a steady stream of claims, hasn’t become a haven for ‘copyright trolls,’ is widely used to reach settlements and seems to be operating relatively smoothly. All in all, the CCB seems to be working as intended.”

Jurisdiction “Found”: Navigating E-Commerce Boundaries in Copyright Disputes — “In a copyright case, the US Court of Appeals for the Tenth Circuit determined that the district court had jurisdiction over two Chinese companies that consented to jurisdiction in any judicial district in which a third-party e-commerce company could be ‘found.’ The Tenth Circuit concluded that whether an e-commerce company is ‘found’ in a district for purposes of jurisdiction is determined based on whether its officers or agents carry out the company’s business there, not on the manner in which it does business.”

Friday’s Endnotes – 10/18/24

By , October 18, 2024.

Joseph Saveri Law Firm, Co-Counsel File 9th Circuit Appeal in Lawsuit Targeting GitHub’s Use of Code to Train AI Models — “Plaintiffs counsel in Doe v. GitHub, which is widely considered to be the first lawsuit to challenge companies’ use of copyrighted materials to train generative artificial intelligence models, on Tuesday filed a new petition to the U.S. Court of Appeals for the Ninth Circuit. The appeal questions whether liability under §1202(b) of the Digital Millennium Copyright Act is limited to the ‘removal or alteration of Copyright Management Information from an identical copy of a work.'”

German Supreme Court Rules Against Photographer in Landmark Wallpaper Copyright Case — “The court dismissed Böhme’s appeals from lower courts, ruling that while yes, the plaintiff owned the copyright to the pictures featured on the wallpapers, and that taking photographs of the wallpaper essentially made the copyrighted work available to the public in a way, the plaintiff had granted implied consent to specific expected and anticipated uses of their work, including photographs of the wallpaper. When a right holder makes work available without restriction, some types of usage should be expected says the German Supreme Court.”

The Heart of the Matter: Copyright, AI Training, and LLMs — “The recent article The Heart of the Matter: Copyright, AI Training, and LLMs, forthcoming in the Journal of the Copyright Society, explains how copyright and AI intersect. It addresses several key areas of the relationship between copyright and generative AI, discussing the way copies are made and used in LLMs, the significant copyright liability issues that can arise from these uses, and the inconsistent international landscape, which is subject to court decisions in dozens of ongoing cases. The article finds that licensing is a logical solution to these challenges, with direct and voluntary collective licensing both playing important roles in enabling copyright owners and users to work together and innovate.”

Ramaphosa sends ‘atrocious’ copyright bill to Constitutional Court — “[South Africa] President Cyril Ramaphosa has for the second time had qualms about signing the Copyright Amendment Bill and Performers’ Protection Amendment Bill into law and has sent them to the Constitutional Court. Copyright legal experts and artists have consistently opposed the copyright bill, which they say intrudes on property rights and the right to trade.”

Penguin Random House underscores copyright protection in AI rebuff — “PRH is believed to be the first of the Big Five anglophone trade publishers to amend its copyright information to reflect the acceleration of AI systems and the alleged reliance by tech companies on using published work to train language models.”

Friday’s Endnotes – 10/11/24

By , October 11, 2024.

Appeal Court Affirms Piracy Liability Verdict Against ISP Grande, Vacates $47m Damages Award — “In Grande’s case, there is a direct nexus between the copyright infringements and the use of Grande’s network, as Internet access was required to share the copyright infringing music. ‘Grande provided those subscribers with the tools necessary to conduct those infringements and continued doing so after learning that those subscribers were repeatedly using those tools to infringe, in furtherance of a policy never to terminate subscribers for copyright infringement,’ the Court writes.”

Why The New York Times’ lawyers are inspecting OpenAI’s code in a secretive room — “The lawsuit argues OpenAI infringed on its intellectual property in two ways. There is the ‘input’ case — alleging that the LLM illegally hoovered up over 10 million New York Times articles to train ChatGPT and Microsoft Copilot without compensation. And the ‘output’ case — arguing that when asked, ChatGPT can spit out a New York Times article that readers would otherwise pay a subscription for.”

The German LAION decision: A problematic understanding of the scope of the TDM copyright exceptions and the transition from TDM to AI training — “A fundamental aspect of the decision that deserves greater attention is that the analysis of the court is incomplete. As such, it may not represent good guidance for either concerned stakeholders or other courts in Europe faced with questions of unlicensed TDM and subsequent AI training. Specifically (and likely because of how the plaintiff photographer pleaded the case), the court failed to consider that the TDM exception for scientific research would not cover all of LAION’s activities as described in the judgment itself, notably the circumstance – following the completion of TDM activities – that LAION made the resulting dataset publicly available for anyone to use and for any purpose, including commercial AI training.”

‘Good news’ as copyright and AI stand-off to end within months — “The ongoing stand-off over the use of copyright protected materials in training AI systems will be resolved by the end of the year, according to the UK’s parliamentary under-secretary of state for science, innovation and technology, Feryal Clark. Speaking recently at the Times Tech Summit, Clark stressed that a resolution is expected in the coming months, whether that be through legislation or policy amendment.”

How pirate websites undermine research integrity — “Unlike publishers, pirate websites have no incentive to confirm the accuracy of the articles they illegally harvest or ensure the research meets ethical standards. There’s also no incentive to retract or correct an article if a problem arises. And they do arise: more than 45,000 retractions have been identified by Retraction Watch since the database launched in 2010. Publishers, working with organizations like the Committee on Publication Ethics, proactively work to correct inaccuracies and root out plagiarism or falsification of data and results.”

Friday’s Endnotes – 10/04/24

By , October 04, 2024.

Warhol‘s lessons for the publishing industry — The Columbia Journal of Law & Arts published this week an article based on remarks I gave during the 2023 Kernochan Center for Law, Media, and Arts Symposium. It focuses on three key areas that the Warhol Court touched on in its decision—transformativeness, commerciality, and market harm—to see what questions were answered and what questions were left for another day.

EU copyright law roundup – third trimester of 2024 — A roundup from the Kluwer Copyright Blog on notable copyright law developments in the EU from July through September of 2024, including CJEU decisions, Advocate General opinions, and important policy developments.

OpenAI Faces Early Appeal in First AI Copyright Suit From Coders — “OpenAI Inc. and Microsoft Corp.‘s GitHub will head to the country’s largest federal appeals court to resolve their first copyright lawsuit from open-source programmers who claim the companies’ AI coding tool Copilot violates a decades-old digital copyright law. Judge Jon S. Tigar granted the programmers’ request for a mid-case turn to the US Court of Appeals for the Ninth Circuit, which must determine whether OpenAI’s copying of open-source code to train its AI model without proper attribution to the programmers could be a violation of the Digital Millennium Copyright Act.”

Copyright Office Spanish Language Program Broadens Access to Copyright Information — “A key initiative under the Copyright for All strategic goal is the expansion of the Office’s Spanish language program. Forty-two million people in the United States speak Spanish at home. To broaden access to the copyright system, the Office has made a range of materials accessible to the Spanish-speaking community. Over the past two years, the Copyright Office has released more than forty translated resources for Spanish speakers, accessible through the Copyright in Spanish home page.”

Termination right is not extinguished in bankruptcy — “The right to terminate a written transfer agreement under the Copyright Act was not extinguished by a bankruptcy proceeding, the federal court for Miami has held… This band at the center of this dispute is 2 Live Crew, a hip-hop group from Miami that was commercially successfully in the 1980s and 1990s… Campbell went into bankruptcy proceedings in 1995, along with the band’s record label Luke Records… The events leading to this dispute began when Campbell, along with the heirs of the now-late Ross and Wong Won, served a notice of termination on Lil’ Joe Records… Lil’ Joe sued Campbell, as well as the heirs of Ross and Wong Won, seeking declaratory judgment as to the validity of the termination notice.”

Friday’s Endnotes – 09/27/24

By , September 27, 2024.

OpenAI Training Data to Be Inspected in Authors’ Copyright Cases — “In a Tuesday filing, authors suing the Sam Altman-led firm and OpenAI indicated that they came to terms on protocols for inspection of the information. They’ll seek details related to the incorporation of their works in training datasets, which could be a battleground in the case that may help establish guardrails for the creation of automated chatbots.”

U.S. Court Orders LibGen to Pay $30m to Publishers, Issues Broad Injunction — “A New York federal court has ordered the operators of shadow library LibGen to pay $30 million in copyright infringement damages. The default judgment comes with a broad injunction that affects third-party services including domain registries, browser extensions, CDN providers, IPFS gateways, advertisers, and more. These parties should stop facilitating access to the pirate site.”

How A Strong Copyright System Benefits the United States — “It is copyright that provides an established legal framework relied upon for the production of informational writing required by democratic societies. As the Supreme Court explained, ‘[i]n our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” And by creating a marketable right for authors, copyright established an alternative to patronage systems that can reduce the diversity of voices, chill speech, or even encourage propaganda.'”

Technological Innovations do not Negate the Fundamental Principles of Copyright Law and the Fair Use Doctrine — “Whether or not this decision will impact a ‘transformativeness’ analysis with respect to the swathe of generative artificial intelligence cases popping up within the Second and Ninth Circuits remains to be seen, although the secondary use argument in this case seems analogous to the training argument proffered by AI companies.”

Author of AI-Generated Work Rejected by Copyright Office Says Lack of Protection Has Crushed Him — Jason Allen, who garnered national attention after a work he created using Midjourney won an award at the 2022 Colorado State Fair, filed a declaratory judgment action this week challenging the U.S. Copyright Office’s decision to reject his application for copyright registration in the work.

Friday’s Endnotes – 09/20/24

By , September 20, 2024.

Site Blocking Is Effective Worldwide Says New Report by IP House and DCA — “Three separate studies—focused on the United Kingdom, Portugal, and Australia—found that when sites were blocked, traffic decreased to those sites. The decrease was substantial; traffic decreased by 89 percent in the United Kingdom, 70 percent in Portugal, and 69 percent in Australia.”

AI Art Copyright Stays Doubtful After Appeals Court Argument — “The first federal appeals court battle over the boundaries of copyright law’s application to AI-generated works carries huge implications for creative industries given the rapid proliferation of the technology. The circumstances upon which copyright vests in work wholly or partly created by AI and who gets to control and enforce that right will hinge on interpretations of cases like Thaler’s.”

Operation 404.7 Targets 675 Pirate Sites, Brazil’s ISPs Now Block 6,700+ Domains — “Brazil’s Ministry of Justice and Public Security today announced fresh action and the latest achievements in the ongoing ‘Operation 404’ anti-piracy campaign. International partners including City of London Police, MPA, ACE, IFPI, ESA, ALIANZA, and the EU’s Intellectual Property Office, assisted local agencies as they reportedly took down 675 pirate sites, 14 apps, and executed search and seizure warrants. Data seen by TF reveals that ISP’s in Brazil now block 6,700+ domains.”

Austrian Supreme Court tackles right of reproduction, three-step test, and parody defence in Robber Hotzenplotz copyright case — “Further to the dismissal of the copyright and trade mark claims but not the entirety of the action on appeal, the defendant filed an extraordinary appeal. The Austrian Supreme Court dismissed it by means of a decision issued a few days ago. In so doing, the Supreme Court tackled 3 key issues under EU copyright law – specifically: the InfoSoc Directive. They are the: (1) Scope of the right of reproduction; (2) Role and addressees of the three-step test; and (3) Notion of ‘parody’.”

How High School Debate Led to My Career in Copyright Policy — “High school debate programs enable students to hone so many important skills—including analysis, organization of ideas, writing, public speaking, and researching all that they can about the national topic—especially if it’s one that they can sink their teeth into. So, when I first learned about the 2024 National High School Debate topic, I was very excited. To have a topic of this caliber will really resonate with students because the issues are multi-faceted and, ultimately, through their research, it will teach them about the importance of protecting creative works through strong and effective IP laws.”

Friday’s Endnotes – 09/13/24

By , September 13, 2024.

The Geography of Copyright Registrations — “The U.S. Copyright Office has released a report, The Geography of Copyright Registrations. The study examines the geographic distribution of copyright claims registered by individuals and organizations within the United States. The purpose of the report is to better understand where the copyright system is used and how patterns of registrations differ across areas within the country.”

Copyright versus privacy: the CJEU rules that access by a public authority to data associated with an IP address can be justified — “As a result of this judgment, ARCOM, the French regulatory authority that fights online copyright infringement, can continue to fight unlawful downloading. More generally, this decision was very well received in France.”

Copyright and Piracy in France: A Court Blocks Z-Library — “The French publishers’ association—the Syndicat national de l’édition—is messaging the news media that the Paris Judicial Court has today (September 12) ordered Internet service providers to block the ‘Z-Library’ site. The order renders a total 98 domain names and their possible extensions on mirror sites inaccessible.”

House Judiciary Committee Asks Copyright Office to Examine PROs, Citing ‘Difficult to Assess’ Royalty Distributions — “The ‘proliferation’ of PROs is a newer concern. Around the world, most countries typically have one PRO for local writers and publishers to join. In the U.S., it works differently. For over a hundred years, ASCAP and BMI have been the primary choices for a songwriter or publisher looking to collect performance royalties in the United States, but there is also the option to go with SESAC instead, a smaller but still important player in the U.S. PRO landscape, which has been around for almost as long.”

Supreme Court review sought over entitlement to attorney fees in copyright cases — “The petition argues that circuits are split on whether a defendant is a is a ‘prevailing party’ when an action is dismissed without prejudice. Both the Fourth and Eleventh Circuits have recognized the existence of a circuit split. The majority rule is that defendants cannot be prevailing parties when a plaintiff voluntarily dismisses the action without prejudice. The minority view is that if a lawsuit ends without the plaintiff altering its legal relationship with the defendant, the defendant has prevailed in the action.”

Friday’s Endnotes – 09/06/24

By , September 06, 2024.

Appeals Court Upholds Decision Against Internet Archive’s Book Scanning Program — “In a swift decision, a three-judge panel of the Second Circuit Court of Appeals has unanimously affirmed a March 2023 lower court decision finding the Internet Archive’s program to scan and lend print library books is copyright infringement. In an emphatic 64-page decision, released on September 4, the court rejected the Internet Archive’s fair use defense, as well as the novel protocol known as ‘controlled digital lending’ on which the Archive’s scanning and lending is based.”

Charlesworth on Generative AI Training and Fair Use — “The exploitation of copied works for their intrinsic expressive value sharply distinguishes AI copying from that at issue in the technological fair use cases relied upon by AI’s fair use advocates. In these earlier cases, the determination of fair use turned on the fact that the alleged infringer was not seeking to capitalize on expressive content-exactly the opposite of generative AI.”

End of the Line for Controlled Digital Lending Theory — “To those who believe the law should be different to facilitate IA’s alleged social benefit, I have considered the intent of CDL (and the alleged burden of eBook licensing) and find no evidence to support the claim that CDL fulfils an unmet need. In fact, as stated in past posts, Kahle’s dream of digitizing everything and making it all freely available is not only harmful to future authorship but is a threat to local libraries. Further, it bears repeating that the publishers in this case represent thousands of authors, while IA represents the interests of no authors.”

Singapore’s New Copyright Act Three Years On: There’s No Need to Open the AI Exception Door Even Wider — “Singapore’s Copyright Act review exercise needs to result in a balanced approach that protects creative industries while allowing for text and data mining within reasonable limits. The TDM exception door is already open very wide.  Kicking it open even wider would be a serious policy mistake.”

District Court Issues Mixed Ruling in Blackbeard Copyright Case — “On August 29, the U.S. District Court for the Eastern District of North Carolina issued an order addressing several motions in Allen v. Cooper, a case that mirrors the back-and-forth nature of an epic maritime battle—this time, between a government and an individual.”

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