Friday’s Endnotes – 06/30/23

By , June 30, 2023.

Authors Sue OpenAI Claiming Mass Copyright Infringement of Hundreds of Thousands of Novels — “Later versions of OpenAI’s large language models were trained on larger quantities of copyright-protected works, according to the complaint. In a 2020 paper introducing GPT-3, the company disclosed that 15 percent of its training dataset came from ‘two internet-based books corpora’ that it simply called ‘Books1’ and ‘Books2.’ While it never revealed what works were part of those datasets, the authors claim they came from ‘notorious shadow library websites,’ like Library Genesis, Z-Library, Sci-Hub and Bibliotik.”

Genius’s Attempts to Sue Google Over Song Lyrics Are Basically Dead — This week, the Supreme Court denied cert in ML Genius Holdings v. Google, consistent with the position argued by the US Solicitor General. The petition had asked the Court to review whether the Copyright Act preempted Genius’s breach of contract claims against Google, based on Genius’s allegations that Google copied lyric transcriptions for millions of songs from the Genius site.

The Copyright Claims Board Celebrates Its First Year — The US Copyright Office’s own Holland Gormley reviews some of the milestones reached by the small copyright claims tribunal after one year of operations.

U.S. Copyright Office Generative AI Event: Three Key Takeaways — Franklin Graves reviews the three key takeaways from a US Copyright Office webinar held earlier this week regarding how to register works containing material generated by artificial intelligence.

Friday’s Endnotes – 06/23/23

By , June 23, 2023.

Copyright Claims Board Celebrates First Anniversary Without a Troll Party — “When the Copyright Claims Board was first introduced, there was quite a lot of pushback. Several opponents feared that ‘copyright trolls’ would abuse the system to launch a wave of claims against alleged online pirates. That fear didn’t materialize.”

Bad Bunny and music stars want a copyright case over reggaeton beats thrown out — “Bad Bunny’s lawyers argue the plaintiffs are attempting to ‘monopolize practically the entire reggaeton musical genre for themselves’ by claiming copyright ownership of musical compositions sampled by over 100 artists in more than 1,600 songs. Bad Bunny himself is accused in the lawsuit of copyright infringement for 77 songs, the motion said. The foundational drum beats come from Jamaican dancehall duo Steely & Clevie, composed of Wycliffe Johnson and Cleveland Browne, who co-wrote ‘Fish Market’ in 1989. The heavily sampled ‘Dem Bow’ rhythm comes from a song of the same name co-authored with Shabba Ranks, which itself takes from ‘Fish Market.’ Johnson passed away in 2009.”

Online News Act receives Royal Assent — “Millions of Canadians now access their news online. Digital platform act as the gatekeepers in today’s digital news marketplace. The Online News Act levels the playing field between news businesses and large digital platforms to create greater fairness to ensure sustainability of the news industry. Through a market-based approach, it encourages voluntary commercial agreements between platforms and news businesses with minimal government intervention, as well as crucial safeguards to preserve the independence of the press.”

Generative AI is a Minefield for Copyright Law — “As generative AI art tools like Midjourney and Stable Diffusion have been thrust into the limelight, so too have questions about ownership and authorship. These tools’ generative ability is the result of training them with scores of prior artworks, from which the AI learns how to create artistic outputs. Should the artists whose art was scraped to train the models be compensated? Who owns the images that AI systems produce? Is the process of fine-tuning prompts for generative AI a form of authentic creative expression?”

Friday’s Endnotes – 06/16/23

By , June 16, 2023.

Ninth Circuit Holds that Registration of a Single Photography Database Supports Award of Statutory Damages for Each Individual Photo in the Database — “Because ‘photographers can create hundreds, and sometimes thousands, of photographs per day,’ the Ninth Circuit reasoned that allowing them simply to register a single database will protect the financial interests of the photographers and keep the Copyright Office from facing a deluge of copyright applications from prolific photographers. Thus, going forward, content owners can protect countless photographic works through a single registration and still enforce their rights with the threat of statutory damages.”

Google licenses content from news publishers under the EU Copyright Directive — In a blog post discussing the remarkable success of the EU Copyright Directive’s press publisher right, Google reports, “As of today, we have agreements in place covering over 1,500 publications across 15 countries.” A US bill aimed at addressing the same issue by allowing news publishers to collectively negotiate with online platforms advanced out of the Senate Antitrust Subcommittee yesterday.

Twitter sued for $250 million by music publishers over ‘massive’ copyright infringement — “The National Music Publishers’ Association (NMPA) is suing Twitter on behalf of 17 music publishers representing the biggest artists in the business. The lawsuit, filed in federal court in Tennessee, claims the company ‘fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law.'”

GitHub accused of varying Copilot output to avoid copyright allegations — “This assertion appeared on Thursday in the amended complaint against Microsoft, GitHub, and OpenAI over Copilot’s documented penchant for reproducing developers’ publicly posted, open source licensed code. The lawsuit, initially filed last November on behalf of four unidentified (“J. Doe”) plaintiffs, claims that Copilot – a code suggestion tool built from OpenAI’s Codex model and commercialized by Microsoft’s GitHub – was trained on publicly posted code in a way that violates copyright law and software licensing requirements and that it presents other people’s code as its own.”

A Judge Ruled Against an Artist Who Claimed Maurizio Cattelan Copied His Duct-Taped Banana, Deciding the Two Works Are Apples and Oranges — ” In his decision, Judge Scola outlined various features that distinguished the two works. Most notably, Banana and Orange has a green background and a border of masking tape and the banana was placed at only a slight angle from horizontal. By contrast, Cattelan’s Comedian has no specified background, no border and a much stronger angle.”

Friday’s Endnotes – 06/09/23

By , June 09, 2023.

The Supreme Court Case of Andy Warhol Foundation v. Goldsmith: What, if Anything, Does it Mean to Artificial Intelligence? — “The most obvious impact will be on the image cases brought by artists and Getty images, respectively, against Stability AI. These are cases where the AI developers allegedly (1) used works of artists and photographers without consent and (2) enable the creation of works that compete directly with the infringed works. Leaving aside procedural issues and focusing on the copyright merits, attorneys in these cases are likely making happy noises.”

Dua Lipa’s Copyright Accusers Drop ‘Levitating’ Infringement Lawsuit — “A Florida reggae band has decided to drop a copyright case accusing Dua Lipa of copying her smash hit song ‘Levitating’ from their earlier track, two days after a federal judge cast serious doubt on the lawsuit’s allegations.”

Adobe is so confident its Firefly generative AI won’t breach copyright that it’ll cover your legal bills — “Adobe Firefly, the software giant’s AI-powered image generation and expansion tool, is being rolled out to businesses today. At its flagship Adobe Summit event, the company is unveiling an expansion of Firefly for enterprise users that will include ‘full indemnification for the content created through these features,’ says Claude Alexandre, VP of digital media at Adobe.”

Museum Wins Lawsuit Over Photo of Michelangelo’s David — “An Italian museum has won a lawsuit against a magazine publisher which used a photo of Michelangelo’s sculpture David without permission — despite the 500-year-old artwork belonging in the public domain. In August 2020, GQ Italia superimposed a photograph of 16th-century statue David’s face onto an image of model Pietro Boselli for its cover.”

Opinion: Making Google and Meta pay for news they profit from — “The California Assembly recently voted in favor of journalism by supporting the proposed California Journalism Preservation Act (Assembly Bill 886), which would require social media companies to pay a ‘usage fee’ to publishers for the news content that the platforms benefit from. The publishers, in turn, would have to spend at least 70% of the fees they receive on journalists or support staff. The money would come out of the platforms’ advertising revenue and the amount would be determined by arbitration.”

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.”

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