Friday’s Endnotes – 06/02/23

By , June 02, 2023.

It’s Not Flattery…It’s Theft – How Copyright Laws Impact Fashion in the Horse World — “‘Copying is the sincerest form of flattery‘” – or so we’re told. However, many designers in the horse world are small business owners where the designer and manufacturer are one-in-the-same. These individuals rely on selling garments out of their homes directly to consumers, or to other small businesses, in order to make a living.”

[Guest Post] Third time’s a charm: The Little Mermaid and a Big Win for Satire and Freedom of Speech — “In a ruling that shakes up the boundaries of copyright and parody in Denmark, the Danish Supreme Court has underlined the significance of freedom of speech and manifested the existence of a Danish copyright parody principle – including when the subject of debate involves a national symbol.”

Copyright Royalty Board Confirms Streaming Royalty Rate for Songwriters for 2018-2022 — Four years ago, the CRB increased the headline rate paid to songwriters for on-demand streaming services by a historically large amount. Appeals followed. This week, the Board confirmed that increase.

Copyright Office Announces Online Webinar on Application Process for Registration of Works with Artificial Intelligence-Generated Content — If you’re interested in learning more about how the US Copyright Office will apply its recently published guidance on registering works with AI generated content, or have questions about the process, register for this webinar June 28.

ISP’s Dynamic Injunction Fears Fail to Prevent Lookmovie & Flixtor Blocking — Torrentfreak’s Andy Maxwell reports on a decision from a district court in Rotterdam ordering dynamic blocking of domains belonging to two infringing services. The court concluded that the order was not ineffective or overbroad.

Friday’s Endnotes – 05/26/23

By , May 26, 2023.

Former Copyright Office GC Tells House IP Subcommittee His Counterpart Got It Wrong on AI Fair Use — “Baumgarten said that he ‘could not disagree more’ with Damle’s characterization of the process and that his ‘blanket assertion that input for generative AI “is fair use” may well be simply wrong.’ Baumgarten compared Damle’s statements with the perspective of some stakeholders during the 1960s, when the photocopier gained popularity for use in businesses and education. While many dismissed the concerns of authors and scientific textbook publishers as ‘clearly fair use’, case law later proved them wrong, Baumgarten wrote.”

Biden administration backs Google in song lyrics case at Supreme Court — The case is ML Genius Holdings v. Google, and the issue involves copyright preemption of breach of contract claims. But the idiosyncratic facts at issue here may make this a poor vehicle for Supreme Court review.

European Commission Calls for Pirate Site Blocking Around the Globe — “The European Commission has published its biannual list of foreign countries with problematic copyright policies. One of the highlighted issues is a lack of pirate site blocking, which is seen as an effective enforcement measure. Interestingly, the EU doesn’t mention the United States, which is arguably the most significant country yet to implement an effective site-blocking regime.”

AI tools like ChatGPT are built on mass copyright infringement — “It takes enormous amounts of data to train a generative AI program like ChatGPT, and in order to build these tools cheaply and quickly, developers are committing mass copyright infringement. These datasets are largely created by combing and scraping the internet for every type of content, from articles, books and artwork to our photos and tweets. These methods give rise to some big questions: Is the use of our copyright-protected content for training generative AI models legal”

10 Takeaways from the SCOTUS Decision in AWF v. Goldsmith (Part I) — “There is no doubt that the AWF v. Goldsmith decision will have a monumental impact on how courts interpret fair use in the future. However, it is important to understand that the decision does not actually change copyright law or our understanding of the fair use doctrine. What the decision does is level-set fair use jurisprudence to where the Supreme Court always intended it to be after its landmark fair use case, Campbell v Acuff-Rose Music.”

Friday’s Endnotes – 05/19/23

By , May 19, 2023.

Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869 (May 18, 2023) [PDF] — “If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity.”

Fair use defense by Richard Prince fails to sway judge on Instagram prints — “Finding that artist Richard Prince ‘indeed tested the boundary between appropriation art and copyright infringement,’ a federal judge refused to throw out a pair of long-running copyright suits against Prince for his Instagram-based series ‘New Portraits.'”

U.S. Congress Doesn’t Plan to Overreact to Generative AI Copyright Challenges — “Generative AI is a revolutionary technology that’s expected to change society as we know it but, in parallel, copyright concerns persist. During a House Judiciary IP Subcommittee Hearing yesterday it was made clear that Congress doesn’t plan to overreact. Lawmakers hope to find the middle ground, but that could be easier said than done.”

Why Harry Potter is the copyright timebomb under generative AI models — “The EU legislation would potentially put all LLM companies in the line of fire, because many of their models are trained on copyrighted writing. And the proposed law would impact companies globally, as anyone offering products and services in any EU country would have to comply. Cribbing off Harry Potter might be GenAI’s next copyright timebomb.”

Friday’s Endnotes – 05/12/23

By , May 12, 2023.

He wrote a book on a rare subject. Then a ChatGPT replica appeared on Amazon. — As this WaPo article suggests, AI may not just devalue content, it may also devalue search, social media, platforms—indeed, the entire web. “The problem, Levin said, is that the wide availability of tools like ChatGPT means more people are producing similarly cheap content, and they’re all competing for the same slots in Google search results or Amazon’s on-site product reviews. So they all have to crank out more and more article pages, each tuned to rank highly for specific search queries, in hopes that a fraction will break through. The result is a deluge of AI-written websites, many of which are never seen by human eyes.”

Let’s Stop Analogizing Human Creators to Machines — “We should be wary of analogizing machine functions to human activity for the simple reason that copyright law (indeed all law) has never been anything but anthropocentric. Although it is difficult to avoid speaking in terms of machines ‘learning’ or ‘creating,’ it is essential that we either constantly remind ourselves that these are weak, inaccurate metaphors, or that a new glossary is needed to describe what certain AIs may be doing in the world of creative production.”

GitHub, Microsoft, OpenAI fail to wriggle out of Copilot copyright lawsuit — One of the current crop of U.S. lawsuits around generative AI closely watched by copyright pundits, which, despite that, and the headline here, does not actually contain a claim for copyright infringement. Rather, it includes adjacent claims for removal of copyright management information among more generalized state and common law claims. Most of which were dismissed with leave to amend by the court this week as reported here.

Generative AI, Copyright and the AI Act — A look at copyright and generative AI issues through the lens of EU law and the proposed AI Act.

Potential Impact on Major Pirate Sites as Vietnam ISPs Face New Responsibilities — Torrentfreak’s Andy Maxwell reports, ” After spending more than 16 years implementing intellectual property laws introduced in 2005, amendments to intellectual property law in Vietnam came into effect on January 1, 2023. At that point, however, implementation was still to be determined so, over the past few months, the government has been drafting decrees. Issued by the government in late April, Decree No. 17/2023/ND-CP offers guidance on various copyright matters related to ISP liability and enforcement measures, including disclosure of customer information. At first blush, it appears to herald a new world of opportunities for rightsholders.”

Friday’s Endnotes – 05/05/23

By , May 05, 2023.

Sheeran Wins Copyright Trial On Independent Creation — Copyright attorney Aaron Moss on the big copyright news of the week. Not a whole lot to analyze though, given that the outcome is a jury verdict. We’ll see if there are any post-judgment motions or an appeal.

The Latest on the EU’s Proposed Artificial Intelligence Act — Last week, the European Parliament agreed to an amended version of a comprehensive framework for regulating AI in the EU. Among other things, the proposal would create transparency obligations “when the AI system is trained with data protected under copyright laws.”

Spinrilla agrees to pay the majors $50 million to end copyright case — The judgment comes after a 2020 ruling finding Spinrilla directly liable for infringing the copyright of over 4,000 sound recordings and not eligible for the DMCA safe harbor.

U.S. Hits Z-Library With New Domain Name Seizures — Torrentfreak’s Ernesto Van der Sar reports, “The U.S. Government’s crackdown against Z-Library continues. After a few months of relative silence from law enforcement agencies, a new round of domain name seizures has begun. These efforts have taken out the shadow library’s main login panel but the site is not planning to throw in the towel.”

Literary Copyright Cases Writers and Publishers Should Know — The Copyright Alliance provides a useful survey of cases touching upon important doctrines for literary works.

Friday’s Endnotes – 04/28/23

By , April 28, 2023.

Empowering Women in IP: Reflections on #WorldIPDay — MPA GC and former US Register of Copyrights Karyn Temple observes both the progress women have made and the obstacles they face within the intellectual property system.

For You and Me or Private Property?: Evaluating the Copyright Claim in Woody Guthrie’s “This Land Is Your Land” — “As of this writing, the most recent litigation occurred in 2016 when the law firm of Wolf Haldenstein Adler Freeman & Herz filed a complaint on behalf of the band Satorii against The Richmond Organization (TRO), current publishers of ‘This Land’ and other Guthrie works. In 2015, the same firm successfully litigated a high profile case against Warner/Chappell Music, Inc. that established ‘Happy Birthday’ in the public domain. Buoyed by this success, the firm hoped to similarly invalidate the copyright claim in both ‘This Land’ and the civil rights anthem ‘We Shall Overcome.’ While the cases involving ‘Happy Birthday’ and ‘We Shall Overcome’ were relatively clear-cut, the facts of the copyright claim in ‘This Land’ are more complicated and warrant an in-depth look.”

World Book & Copyright Day: the origin — “The celebration goes back to ‘La Diada de Sant Jordi’, or the Festival of St George, which is Catalunya’s version of Valentine’s Day, when people give each other red roses—but also books. This one-day festival, held every year on the 23rd of April, is inspired by the legend of Saint George, who has been the patron Saint of Catalunya since 1456.”

An AI Scraping Tool Is Overwhelming Websites With Traffic — “The people at the head of the new crop of AI companies believe that their technology could replace 80 percent of  jobs in the U.S. and pose ‘massive risks’ to society. We should be skeptical of these claims, but it’s also worth noting that the people building tools they consider to be so disruptive are doing so without ever asking the internet users whose efforts are powering AI if they wish to fuel that technology.”

AI Imagery May Destroy History As We Know It — “Eventually, these programs will be training on new imagery as it is made available in real time. At that moment, A.I. will reference previously created A.I. images and incorporate them into its new output. This cannibalistic-type training will result in the further dilution of the truth. At some point in the future, it is conceivable that there could be more fake images on the internet than real photographs.”

Friday’s Endnotes – 04/21/23

By , April 21, 2023.

Inside the secret list of websites that make AI like ChatGPT sound smart — The Washington Post’s Kevin Schaul, Szu Yu Chen and Nitasha Tiku take a close and visual look at the sources of works used to train many high profile English-language large language models. Worth noting: “Also high on the list: b-ok.org No. 190, a notorious market for pirated e-books that has since been seized by the U.S. Justice Department. At least 27 other sites identified by the U.S. government as markets for piracy and counterfeits were present in the data set.” The article also includes a search function to see what individual websites were included in the dataset, so I had to check…

Search prompt for the websites in Google's C4 dataset with copyhype.com as input. Search results show 1 domain begins with "copyhype.com", with a rank of 48,596, 360k tokens, and 0.0002% of all tokens. Originally from https://www.washingtonpost.com/technology/interactive/2023/ai-chatbot-learning/?tid=ss_tw.

What the Online Piracy Data Tells Us About Copyright Policymaking — Researcher Michael D. Smith summarizes the peer-reviewed empirical literature on piracy in this article, which he says supports three broad conclusions: “digital piracy harms creators by reducing their ability to make money from their creative efforts”, “digital piracy harms society by reducing the economic incentives for investment in creative output,” and “legislative interventions implemented worldwide have been effective in reversing these harms.”

Update: 4 Copyright Claims Board Cases to Watch — PlagiarismToday’s Jonathan Bailey reviews four of the over 400 claims that have been filed at the newly created US copyright small claims tribunal, which is still under a year old. These cases present interesting or notable facts and parties.

At London Book Fair Tuesday: Copyright Under Attack — “Too many times, the best-intended publishing stalwarts—you may know some, yourself—have consoled themselves and others that no one in nearby industries (education, entertainment, communications) could possibly be willing to do anything that might undermine the essential value of copyright protection. What’s more, it’s easy to think that one market’s struggles with a rewritten piece of legislation or a foray into popular misconceptions about copyright will stay in that market.”

The US Supreme Court’s Warhol case; what is the fuss about? — Bill Patry on the anticipated decision: “In an era when partisan hyperbole passes for ordinary discussion, one must get used to headlines like ‘The Supreme Court may force us to rethink 500 years of art’. Given that the first American copyright law is from 1790 and did not even begin to take shape with respect to fair use until a judicial opinion in 1841, this seems a few centuries off even in hyperbole.”

Friday’s Endnotes – 04/14/23

By , April 14, 2023.

Universal Music Asks Streaming Services to Block AI Companies From Accessing Its Songs — “Universal Music Group (UMG) is asking streaming services like Spotify and Apple Music to stop artificial intelligence companies from accessing the label’s copyrighted songs to “train” their machines, in what amounts to the latest music industry backlash to such technology.”

Copyright Claims Board Dismisses ‘Piracy’ Case Against Cloudflare — Torrentfreak reports, “This isn’t the decision AnyStories was looking for but the CCB is actually quite helpful and points out, again, how the company can lodge a proper contributory infringement claim against Cloudflare. If the company wants to refile its claim, it should at least show that Cloudflare knew about the infringing activity and induced or caused it (contributory infringement). Alternatively, it can show that Cloudflare had the ability to control the infringing activity and financially benefited from it (vicarious infringement).”

Nollywood could see a major boost from Nigeria’s new copyright law – an expert explains why — “Nigeria’s new copyright law recognises and protects creative works that are based on current digital productive technologies. It covers films, music, performances, literary works and performances enabled by the internet and wireless devices through streaming techniques, uploads, hyperlinks and air-drops.”

[Guest post] SIAE vs Meta: no more Italian music available on Facebook and Instagram? — “Overall, it appears that the ongoing situation in Italy could serve as a pilot to highlight the balance of reciprocal interests in the licensing negotiation between rightsholders, online content-sharing service providers (OCSSPs) and users. It could test the applicability of Art. 17 and the following clauses in Chapter III of the CDSM Directive in a national contest.”

Friday’s Endnotes – 04/07/23

By , April 07, 2023.

Current AI Copyright Cases Part 1 and Part 2 — The Copyright Alliance reviews the (mostly) US lawsuits where copyright issues relating to artificial intelligence are at stake. Part 1 covers unauthorized use of copyrighted works as training data, while Part 2 surveys cases and disputes involving AI copyright authorship.

Newman Dissents from CAFC View that SAS Failed to Show Copyrightability of Nonliteral Elements of Software Programs — “The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday issued a precedential decision holding that SAS Institute, Inc. failed to establish copyrightability of its asserted software program elements. Judge Newman dissented, arguing the ruling ‘contravenes the Copyright Act and departs from the long-established precedent and practice of copyrightability of computer programs’ and that it represents a ‘far-reaching change.'”

Should Stars Register Their AI Likeness? The Tom Cruise Deepfake Startup Wants Them To — “But even if protection is granted, Hengl says it’s unlikely Graham can use his copyright to take down AI-created photos and videos himself. ‘In terms of being able to use copyright as a way to enforce rights with respect to a likeness or to enforce privacy rights, it’s really trying to fit a square peg into a round hole,’ she suggests. ‘You can only enforce protection against works that are substantially similar. There needs to be more than that person’s image — their attire, expression on their face, the pose their body is in, the background they’re in — that’s similar.'”

Nigeria amends its Copyright Act to ratify outstanding copyright treaties and address other issues — Writing at IPKat, Chijioke Okorie reviews some of the highlights of Nigeria’s Copyright Act 2022, which was signed into law on March 17.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing — AAP’s Maria Pallante writes, “Everyone who values our global, creative economy should read the Court’s opinion in Hachette. The holdings are a forceful validation of well-established law and an unequivocal rejection of the defendant’s upside-down assertions that its activities support ‘research, scholarship, and cultural participation by making books more widely available on the Internet.’ That description is meant to sound lofty, but it ignores the economic incentives and protections that make creative professions possible in the first place.”

Friday’s Endnotes – 03/31/23

By , March 31, 2023.

Copyright: US Court Rules Against Internet Archive — Everything you need to know about last Friday’s blockbuster decision in Hachette Book Group v. Internet Archive. Writes Porter Anderson of Publishing Perspectives, “Friday evening’s adamant ruling against the Internet Archive for its ‘Open Library’ lending is a major win for authors as well as publishers, and for workers in associated creative industries who have watched the case closely for the better part of three years.”

Rise of the machines: AI and Copyright — Commentary on copyright issues raised by machine learning models, with a focus on how Indian law may address them.

Fuller v. Bemis and the Failed Prehistory of Choreographic Copyright — Zvi Rosen provides his trademark rigorous and detailed exploration of copyright history with a look at a pioneer of interpretive dance whose litigation is not only recognized as one of the earliest claims involving the copyrightability of choreography, but is, as Zvi discusses, one of the first copyright lawsuits based on a rejected claim for copyright registration.

Celebrating Women Through Their Copyright Story: Dolly Parton and Whitney Houston — From the US Copyright Office, the story of the separate copyrights in musical compositions and sound recordings, and a look at one of the biggest star pairings of the two, which resulted in the hit track, “I Will Always Love You.”

ChatGPT faces deepening scrutiny over ‘secrecy’ behind groundbreaking AI chatbot — “… OpenAI and other companies face a growing number of lawsuits lodged in America and Britain alleging the infringement of copyright over vast amounts of publicly-available ‘open-source’ data. Separately, leading British experts have raised concerns that the world is being asked to ‘blindly trust’ OpenAI after it refused to reveal details of the dataset used to ‘train’ ChatGPT-4.”

« Older articles