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.”

Friday’s Endnotes – 08/23/24

By , August 23, 2024.

Authors Sue AI Firm Anthropic for Copyright Infringement — “While the suit notes that Anthropic has not shared details about its training corpus for Claude, the complaint asserts that Anthropic has admitted to using ‘the Pile,’ which lawyers described as ‘an 800 GB+ open-source dataset created for large language model training’ and allegedly includes a controversial collection called ‘Books3,’ said to be a trove of pirated books.”

News publishers vs. generative AI: Can copyright law keep up? — “There is growing angst in the news media community about how their products ­— the journalism they create, at no small expense — are being used to train the Generative AI Large Language Models (LLMs). They wonder whether copyright law will protect them, whether they should sue over copyright violations or agree to license and compensation terms offered by AI developers. E&P sought to understand these dilemmas better, so we asked news media publishers and advocates how they think these relationships will come to pass.”

Major labels ask US Supreme Court to reconsider $1 bln Cox copyright case — “The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals said in February that the award could not stand, overturning the jury’s ruling that Cox was vicariously liable for its users’ copyright infringement and remanding the case for a new trial on damages. The appeals court upheld the jury’s decision that Cox was liable for user infringement on other grounds, which Cox challenged in a separate Supreme Court petition last week. The labels said in their petition that the vicarious-liability decision should be reinstated because Cox profited from its customers’ piracy. They also said that the 4th Circuit’s decision was out of line with other circuit courts’ rulings on the issue.”

Shein is now copying Temu’s copyright lawsuit — “Shein itself is facing a class action lawsuit alleging that it’s engaged in “industrial-scale scheme of systematic, digital copyright infringement of the work of small designers and artists.” It has also been sued by For Love and Lemons, H&M, Levi Strauss, and Uniqlo, among others.”

Appeals court revives copyright lawsuit against shoe designer, rejecting ‘sophisticated plaintiff’ exception — “The U.S. Court of Appeals for the Second Circuit vacated a lower court’s dismissal of a copyright lawsuit brought by Michael Grecco Productions (MGP) against shoe designer Ruthie Davis and her companies. The appeals court rejected the notion that there is a “sophisticated plaintiff” exception to the discovery rule that determines when the three-year statute of limitations begins to run on copyright claims.”

Friday’s Endnotes – 08/16/24

By , August 16, 2024.

Artists Score Major Win in Copyright Case Against AI Art Generators — “Artists suing generative artificial intelligence art generators have cleared a major hurdle in a first-of-its-kind lawsuit over the uncompensated and unauthorized use of billions of images downloaded from the internet to train AI systems, with a federal judge allowing key claims to move forward.”

Ex-Google CEO says successful AI startups can steal IP and hire lawyers to ‘clean up the mess’ — “‘But if nobody uses your product, it doesn’t matter that you stole all the content,’ Eric Schmidt said during a recent talk at Stanford that has been taken offline.”

Intel sued for copyright infringement over AI software — “Anaconda said in the lawsuit that more than one million companies have adopted its software for integrating different programs used to create AI platforms, which is free to use for individuals and small businesses. The complaint said that Intel’s license to Anaconda’s software expired and that Intel ignored Anaconda’s overtures to renew it.”

Kim Dotcom to be extradited to the US — “Internet entrepreneur Kim Dotcom has lost his long battle to avoid extradition from New Zealand to the United States. A spokesperson for New Zealand Justice Minister Paul Goldsmith said he had signed an extradition order for Mr Dotcom on Thursday. US authorities have said he made his fortune from digital piracy on the now-defunct file-sharing website Megaupload, which he founded in 2005.”

Go Home: No “Prevailing Party” Status After Voluntary Dismissal Without Prejudice — “The Court reasoned that a defendant is not the prevailing party when a plaintiff’s action is voluntarily dismissed without prejudice under Rule 41(a)(1)(A)(i). This is true regardless of whether a statute of limitations has expired. The Court explained that a defendant does not attain prevailing party status merely because, as a practical matter, a plaintiff is unlikely or unable to refile its claims. Instead, the district court itself must act to reject or rebuff the plaintiff’s claims.”

Friday’s Endnotes – 08/09/24

By , August 09, 2024.

Taking Pirated Copies Offline Can Benefit Book Sales, Research Finds — “In an effort to reduce online book piracy, publishers send millions of takedown notices every week. These enforcement efforts impact the availability of pirated content, but do they increase legitimate sales as well? According to academic field research, takedowns can increase sales of printed books with the right approach.” This result is consistent with previous studies on the impact of piracy enforcement on legal consumption.

Understanding subscription licenses, fair dealing and legal protection for TPMs in Canada: A critical commentary of the Blacklock’s Reporter Parks Canada decision — Canadian attorney Barry Sookman takes a detailed and critical look at a recent Canada Federal Court decision that held “Parks Canada did not infringe copyright or breach the Copyright Act’s legal protection of technological protection measures by circulating copies of articles and passwords to locked articles published by BR.”

Piracy and Copyright: A Court Upholds a DMCA Provision — Publishing Perspective’s Porter Anderson reports on last week’s DC Circuit Court decision in Green v. DOJ, which rejected a legal challenge to the DMCA’s anticircumvention and antitrafficking provisions.

The Server Test Suffers A Major Blow — “One of the major shifts in copyright over the past 20 years has been that courts have taken less interest in how something works and are looking at whether the outcome is infringing. The Aereo ruling is the poster child for that shift. However, the server test remained even as the Aereo ruling pushed courts away from focusing on technological distinctions. Even as judges in other circuits rebuked the server test wholesale, in the Ninth, it remained unquestioned. Now, it’s being strongly questioned in another circuit. While it may not be the final death knell for the server test, it is another crack in the armor.”

DC graffiti mural meant to promote ‘humanity’ now at the center of legal fight — “Earlier this year, a group of artists — including some involved in the original 1992 mural, and some reportedly involved in helping Gastman paint the 2001 mural — came together and painted something brand new. But, Gastman has now filed a suit against D.C. artist Cory Stowers over the new mural, with a list of names expected to be added to the lawsuit in the future, claiming copyright violation.” (A VARA violation, to be more specific).

Friday’s Endnotes – 08/02/24

By , August 02, 2024.

Copyright Office Releases Part 1 of Artificial Intelligence Report, Recommends Federal Digital Replica Law — The first part of the U.S. Copyright Office’s eagerly anticipated report on copyright issues and AI dropped this week, covering the use of AI audio and visual tools to realistically but falsely depict real images. In the report, the Office recommends legislation that would provide federal protection against unauthorized digital replicas.

July 2024 Roundup of Copyright News — The Copyright Alliance’s Rachel Kim brings you up to date on a wealth of developments related to copyright over the past month that you may have missed while travelling or trying to beat the heat.

European AI Act Training Disclosures Expose US Copyright Risks — “Beginning in August 2025, the new act will require companies providing ‘general-purpose AI models’ in the EU to make public a ‘sufficiently detailed’ summary disclosing the content used to train the AI. There’s currently no equivalent federal requirement in the US, though California lawmakers are considering calling for similar disclosure. Those EU summaries could provide fodder for authors and other creatives trying to show that AI firms are using their works without permission.”

Suno and Udio slam label lawsuits… but the RIAA hits back — From the RIAA statement: ““After months of evading and misleading, defendants have finally admitted their massive unlicensed copying of artists’ recordings. It’s a major concession of facts they spent months trying to hide and acknowledged only when forced by a lawsuit. Their industrial scale infringement does not qualify as ‘fair use’. There’s nothing fair about stealing an artist’s life’s work, extracting its core value, and repackaging it to compete directly with the originals, as the Supreme Court just held in its landmark Warhol Foundation case.”

11th Cir.: Finding of no copyright infringement reversed amid failure to consider arrangement of computer code — “In determining whether legal copying occurred, the courts in Florida use a three-step test: (1) an abstraction to break down the infringed program into its constituent parts, (2) a filtering to sift out non-protectible material, and (3) a comparison of the protected material with the infringing material to determine if infringement had occurred. The appellate court ruled that the district court largely got the question right. It used the correct test, and it largely analyzed Compulife’s computer program correctly. The district court, however, made one crucial error: when abstracting the constituent parts in the first of the three steps, the district court failed to consider the arrangement of the source code as one of the constituent parts.”

Friday’s Endnotes – 07/26/24

By , July 26, 2024.

Mid-Year Review: AI Lawsuit Developments in 2024 — The Copyright Alliance’s Kevin Madigan provides the latest on the over two dozen lawsuits where copyright questions arising from artificial intelligence are at issue.

Machine readable or not? – notes on the hearing in LAION e.v. vs Kneschke — “The case centers on LAION e.V.’s (a German non-profit organization that builds widely used training datasets) download of an image by German photographer Robert Kneschke for inclusion in the LAION 5B dataset. Neither party disputes that the image in question was downloaded, analyzed, and subsequently included in the training dataset, but LAION claims that this is legally permissible, while Kneschke disputes this. The disputed image was freely available without a paywall on the website bigstock.com.”

Court Says U.S. Copyright Termination Might Cut Off Foreign Rights — “In 2008, when the heirs of Superman’s co-creators were locked in a bruising legal battle with DC Comics, the court in Siegel v. Warner Bros. Entertainment held … that a terminating party is only entitled to recapture domestic rights to the copyright in question, leaving any grant of foreign rights intact. But now, more than fifteen years later, a new case out of Louisiana is challenging the prevailing view that copyright termination can only result in a recapture of U.S. rights, and—at least for now—the court seems to be buying the plaintiffs’ argument.”

The Push to Develop Generative A.I. Without All the Lawsuits — “Getty, along with 20 other stock image companies, is providing images for Bria AI, an Israeli start-up, to build an A.I. model. Bria will split revenue from its generator with Getty and its other partners. Yair Adato, the chief executive of Bria, said dividing revenue with all of the partners and helping to attribute work back to artists was essential to preserve the role of content creators. Without ‘value for creation, everything will be very average and very boring,’ he said.”

Canadian Legal Code? Copying Foreign Law Can’t Infringe Copyright Under US Law — “In dissent, Judge Douglas argued that the majority misapplied Veeck. He argued that the en banc court in Veeck held that law was not copyrightable subject matter in the US. Since copyrightability is determined based on the law of the foreign jurisdiction, and since the P.S. Knight copyrights were valid in Canada, Judge Douglas would have distinguished this case from Veeck and affirmed the district court.”

Friday’s Endnotes – 07/19/24

By , July 19, 2024.

RIAA Sues Verizon After ISP “Buried Head in Sand” Over Subscribers’ Piracy — “Dozens of record labels including UMG, Warner, and Sony, have filed a massive copyright infringement lawsuit against Verizon at a New York federal court. The labels claim that instead of taking action in response to hundreds of thousands of notices advising Verizon of subscribers’ piracy violations, the ISP ‘buried its head in the sand’ while knowingly providing high-speed services to a massive community of online pirates.”

The journalists’ share — “Pursuant to art. 15(5) CDSM Directive, journalists, or to be more accurate, authors of works included in press publications, are entitled to receive an appropriate share of the revenues press publishers collect from platforms for online use of their publications… With the implementation of the CDSM Directive nearly at its end (Poland, the outlier, is currently proceeding its implementation though the Parliament), and the discussions on remuneration of creators intensifying, it seems timely to ask whether journalists are receiving their ‘appropriate’ share, and what ‘appropriate’ actually means.”

Copyright and Education in Canada: Have We Learned Nothing in the Past Two Centuries? (From the “Encouragement of Learning” to the “Great Education Free Ride”) — “The problem of the lack of suitable pedagogic materials was chronic, and the Assemblies got tired of being importuned. The solution, first bruited in the 1820s, but then implemented in the 1830s, was to introduce a copyright law to provide authors with a revenue stream from royalties to encourage production of more local content. In terms of achieving its objectives, this legislation was generally successful…”

[Guest Post] Who owns the copyright to Nigeria’s “new” national anthem? — “The lyrics of the now former Nigerian anthem, “Arise O Compatriots,” was taken from five of the best entries in a national contest and its music composed by Benedict P. Odiase. It was reported that the composition has earned the composer royalties from the Musical Copyrights Society Nigeria (MCSN). Notably, in 2013, the estate of the composer sued the telecommunications giant MTN Nigeria for N1.5 billion naira for the unauthorized use of the national anthem as a ringback tone.”

Goldman Sachs: AI Is Overhyped, Wildly Expensive, and Unreliable — “This is all to say that journalists, artists, workers, and even people who use generative AI are not the only ones who are skeptical about the transformative potential of it. The very financial institutions that have funded and invested in the AI frenzy, and are responsible for billions of dollars in investment decisions are starting to wonder what this is all for.”

Friday’s Endnotes – 07/12/24

By , July 12, 2024.

‘Landmark Victory’: Copyright Office Finalizes Rule Change On Streaming Royalties — Billboard’s Bill Donahue reports on a US Copyright Office rule finalized this week which addresses the payment of streaming royalties to songwriters who have invoked their termination rights. The rule, which was celebrated by a number of songwriter groups, overturns the previous policy of the Mechanical Licensing Collective.

Z-Library Admins “Escape House Arrest” After Judge Approves U.S. Extradition — “Two alleged Z-Library operators who were arrested in Argentina at the request of the United States, have reportedly escaped from house arrest. Russian citizens Anton Napolsky and Valeriia Ermakova were facing extradition to the United States after a judge approved their transfer. After filing an appeal at the Supreme Court of Justice requesting political refugee status, the pair apparently vanished into thin air.”

Ginsburg on Fair Use — Recommended article from Professor Jane Ginsburg, which examines how the Supreme Court’s two latest fair use decisions, Google v. Oracle and Andy Warhol Foundation v. Goldsmith, have redrawn the landscape of US fair use case law, and how they may impact the question of whether the reproduction of copyrighted works to train AI models is covered by fair use.

Anna’s Archive Faces Millions in Damages and a Permanent Injunction — “Popular pirate library search engine Anna’s Archive faces monetary damages and a permanent injunction at a U.S. court. The site’s operators failed to respond to a lawsuit filed by OCLC, after its WorldCat database was scraped and published online. Anna’s Archive remains silent but did switch to a new domain name recently, which may not be entirely coincidental.”

Friday’s Endnotes – 06/28/24

By , June 28, 2024.

Major Labels Sue AI Firms Suno and Udio for Alleged Copyright Infringement — “Filed by plaintiffs that include Sony Music, Warner Music Group and Universal Music Group, the lawsuits allege that Suno and Udio have unlawfully copied the labels’ sound recordings to train their AI models to generate music that could ‘saturate the market with machine-generated content that will directly compete with, cheapen and ultimately drown out the genuine sound recordings on which [the services were] built.'” See also RIAA Chairman Mitch Glazier’s op-ed accompanying the lawsuit filing, Generative AI Reaches Fork in the Road.

Key Copyright Decisions So Far and Cases to Watch in 2024 — “Courts have been busy with copyright cases in the first half of 2024. This article provides an overview of some of the key decisions issued in 2024, as well as important cases to watch in the remainder of the year.”

News nonprofit sues ChatGPT maker OpenAI and Microsoft for ‘exploitative’ copyright infringement — “The nonprofit, which produces Mother Jones and Reveal, said that OpenAI used its content without permission and without offering compensation, violating copyrights on the organization’s journalism. The lawsuit, filed in a New York federal court, describes OpenAI’s business as ‘built on the exploitation of copyrighted works’ and focuses on how AI-generated summaries of articles threaten publishers.”

The Intercept Bolsters OpenAI Copyright Suit with More Evidence — “The Intercept amended its complaint to include a 374-page exhibit listing articles it owns the copyrights to, a 225-page exhibit listing its URLS included in a data set used by OpenAI to train its models, and examples of how the Dragnet and Newspaper algorithms produced text ‘substantively identical’ to its content without copyright information. The output was at times identical except for ‘the seemingly random addition of an extra space between two words, or the exclusion of a description associated with an embedded photo,’ the updated complaint said.”

A Photographer Wins a Top Prize in an A.I. Competition for His Non-A.I. Image — It’s the John Henry story of our time.

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