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.

Friday’s Endnotes – 06/21/24

By , June 21, 2024.

Opinion: As AI is embraced, what happens to the artists whose work was stolen to build it? — “AI companies often argue that it would be impossible for them to license all the content that they need and that doing so would bring progress to a grinding halt. This is simply untrue. OpenAI has signed a succession of licensing agreements with publishers large and small. While the exact terms of these agreements are rarely released to the public, the compensation estimates pale in comparison with the vast outlays for computing power and energy that the company readily spends.”

Five Men Convicted for Operating Major Illegal Streaming Service — “A federal jury in Las Vegas convicted five men this week for their roles in running one of the largest unauthorized streaming services in the United States, which generated millions of dollars in subscription revenue while causing substantial harm to television program copyright owners. According to court documents and evidence presented at trial, beginning as early as 2007, Kristopher Dallmann, Douglas Courson, Felipe Garcia, Jared Jaurequi, and Peter Huber operated an online, subscription-based streaming service known as Jetflicks.”

Copyright questions derailed Calif. plan to develop its own bar exam — “The California Bar had proposed paying Kaplan Test Prep up to $1.475 million annually for five years to develop multiple-choice questions similar to those that now appear on the Multistate Bar Exam portion of the national test. That change was projected to save the bar up to $4 million annually by allowing it to expand remote testing and eliminate the cost of renting large event spaces twice a year. But Kaplan on May 16 requested the state bar defer any decision after the National Conference of Bar Examiners sent it a letter two days earlier warning the company to not use any copyrighted MBE materials, according to a California Bar memo. Kaplan has been licensing actual MBE questions for use in its test prep program since 2009, according to the national conference’s letter.”

What Do You Meme? TFW Commercial Use Outweighs Fair Use — “The US Court of Appeals for the Eighth Circuit affirmed a district court’s copyright infringement decision, finding that a congressional reelection campaign’s use of a popular meme to solicit donations was commercial in nature and therefore not fair use.”

Democrat and Republican Lawmakers Unite to Question Spotify Bundle Move That ‘Sharply Reduces Royalty Payments for Songwriters’ — “The bipartisan group of lawmakers highlighted the long-standing challenges faced by songwriters in receiving fair compensation under the compulsory licensing system, acknowledging that the MMA is a positive step towards fairer compensation for publishers and songwriters, while expressing concern that Spotify’s actions might undermine these efforts. Their concern lies in Spotify’s ‘unexpected decision’ to reclassify its Premium subscription tier as a bundle when offering audiobooks as a free add-on to its $10.99 monthly subscription plan.”

Friday’s Endnotes – 06/07/24

By , June 07, 2024.

Publishing Companies Say Google is Liable for Promoting Pirated Textbooks — “According to the complaint, the publishers have been sending Google notices of infringement for years, but Google’s response has been ‘a circus of failures.’ Rather than removing the ads for the infringing works, Google ‘has continued to do business with known pirates,’ said the complaint, and ‘even threatened to stop reviewing all of the Publishers’ notices for up to six months simply because the Publishers appropriately re-submitted notices for infringing works that Google previously failed to act upon.'”

Who Framed Mickey Mouse? — Copyright scholar Zvi Rosen deconstructs the dominant narrative that the Disney company was the main force behind the 1998 U.S. copyright term extension act. As Rosen writes, “This piece explores how we tell stories about the law, the uses of donation and lobbying data in public discourse, and given how Disney’s involvement in the 1998 term extension has become internet lore and a political hot topic again recently, discuss how and why it matters.”

Shutterstock Made $104 Million Licensing Assets to AI Devs Last Year — Additional evidence of a thriving and functioning market for licensing copyrighted works for training AI models, a market which benefits both copyright owners and AI developers and drives innovation.

Can you become a lawyer by listening to Taylor Swift? — “While Taylor Swift was on her record-breaking Eras Tour, one Swiftie was using the star’s music in a bid to pass her law degree. Regan Caie, a law student at the University of Glasgow, wrote her fourth-year dissertation about Swift’s re-recorded albums and copyright law. The music star has re-recorded and re-released four of her first six albums over a copyright dispute with producer and artist manager Scooter Braun. Regan, 21, said her dissertation combined her love of Swift’s music with her ambition to eventually specialise in copyright and intellectual property law.”

BREIN Pulled 610 Pirate Sites and Services Offline Last Year — “Dutch anti-piracy group BREIN has just posted its latest annual report. The group shut down 610 illegal sites and services, ranging from proxies and streaming portals, to IPTV services and Facebook groups. BREIN also signed 41 settlement agreements and helped to completely remove hundreds of domains from Google search results following blocking orders.”

Friday’s Endnotes – 05/31/24

By , May 31, 2024.

NVIDIA Denies Copyright Infringement Claims in Authors’ AI Lawsuit — “NVIDIA has responded to a copyright infringement lawsuit filed by several American authors. The chipmaker admits the use of ‘The Pile’ dataset, which included the controversial Books3 database. However, NVIDIA denies all copyright infringement allegations and also rejects the use of the term ‘shadow library’, which is often used for pirated book repositories.”

Reggaeton stars fail to get massive ‘Fish Market’ copyright case thrown out — “Likewise, he declined to find that the percussion pattern of ‘Fish Market’ and the derivative works wasn’t sufficiently original to warrant copyright protection. It’s too early to decide that question, according to judge’s order, as a determination would require more evidence and expert testimony. For the same reason, Birotte said it’s too soon to decide whether the dembow rhythm constitutes ‘scenes a faire,’ or an obligatory element of the reggaeton genre, and as such isn’t protectable under copyright law.”

Sobel on Generative AI, Copyright, and Style — “‘You can’t copyright style’ is a shibboleth in today’s debate over generative AI. This slogan is, at best, meaningless. More likely, it’s wrong. Sometimes, what we call ‘style’ is copyrightable.”

Jobiak’s Opposition to Motion to Dismiss Copyright Infringement Claims on AI-Created Database — The latest on one of the few cases, like Thaler v. Perlmutter, to tackle the question of when AI-generated outputs may be protected by copyright.

Friday’s Endnotes – 05/24/24

By , May 24, 2024.

The Resilience of Creativity — “The U.S. Copyright Office has released The Resilience of Creativity: An Examination of the COVID-19 Impact on Copyright-Reliant Industries and Their Subsequent Recovery. The study examines the impact and subsequent recovery from the COVID-19 pandemic in terms of employment, revenues, and creative outputs in copyright-reliant industries. It uses data from the Bureau of Labor Statistics, U.S. Census, and U.S. Copyright Office pertaining to eighteen industries that produce the types of works registered with the U.S. Copyright Office.”

NMPA Calls on Congress for Copyright Act Overhaul Amid Spotify Battle Over Bundling — “In his new letter, NMPA’s Israelite writes that doing away with the 100-year-old system of government-regulated price setting for songwriter and publisher royalties (specifically, mechanical royalties) and allowing rate negotiations to occur in a free market would prevent songwriters and publishers from being taken advantage of by ‘Big Tech’…”

US Supreme Court won’t hear Hearst copyright appeal — “The high court was considering taking up the case to clarify how long copyright owners can wait to sue for infringement after learning that their rights have been violated. Three justices advocated for hearing the case in a dissent to a separate copyright ruling earlier this month.”

Model Disgorgement: The Key to Fixing AI Bias and Copyright Infringement? — “By now, the challenges posed by generative AI are no secret. Models like OpenAI’s ChatGPT, Anthropic’s Claude and Meta’s Llama have been known to ‘hallucinate,’ inventing potentially misleading responses, as well as divulge sensitive information, like copyrighted materials. One potential solution to some of these issues is ‘model disgorgement,’ a set of techniques that force models to purge themselves of content that leads to copyright infringement or biased responses. In a recent paper in Proceedings of the National Academy of Sciences (PNAS), Michael Kearns, National Center Professor of Management & Technology in Computer and Information Science (CIS), and three fellow researchers at Amazon share their perspective on the potential for model disgorgement to solve some of the issues facing AI models today.”

Voice actors, tricked by LOVO into creating AI replicas, file suit. — “A class-action suit was filed last week by voice actors Paul Lehrman and Linnea Sage against AI developer LOVO, Inc. According to the complaint, LOVO induced the actors to provide recorded material under false pretenses—material which was then used to produce synthetic replicas of their voices to become part of a catalog offered to paying customers. The complaint also alleges that LOVO defrauds its customers who believe they are using voices that have been legally obtained.”

Friday’s Endnotes – 05/17/24

By , May 17, 2024.

Internet Archive Fails to Dismiss Record Labels’ Copyright Lawsuit — “Several major music labels, including Capitol, Sony, and UMG, sued the Internet Archive last year over its ‘Great 78’ phonograph archiving project. With hundreds of millions of dollars in potential damages at stake, IA filed a motion to dismiss, hoping to end the matter swiftly. The court, however, was not convinced.”

The Interplay Between Copyright Licensing and Exclusive Rights; AI Edition — “The argument that copyright and licensing somehow stifle innovation is seemingly as old as copyright itself. I tend to find it silly. Copyright predates the measurement of longitude, the horseless carriage, radio, and a few technologies that I currently wear. Collective licensing has advanced technologies including recorded music, broadcast, cable, photocopying, and the Internet. So why are these companies so adamant that, notwithstanding history, licensing will ‘chill’ or ‘impede’ progress? The answer (other than ‘money; they don’t want to share it’) lies in part in how US courts and non-US governments view the interplay between licensing and copyright exceptions.”

Appeals Court Upholds Childish Gambino Victory in ‘This is America’ Copyright Infringement Case — An important reminder that there are two separate and distinct copyrights in a musical composition and sound recording of that composition. The Copyright Office permits a copyright owner to register both in a single application if they are embodied in the same phonorecord and the copyright claimant is the same for both. Filling out the standard application to claim a copyright in both is not intuitive: applicants must select “sound recording” using a dropdown menu under the “type of work” field, then under the “type of authorship” field, they must both check the box for “sound recording” and describe the musical composition authorship in the text field for “other.” The Second Circuit here takes a strict view of those requirements here, notwithstanding the lower court stating that dismissal would also be warranted on the infringement claim itself.

Shopify sues rival for copyright infringement over e-commerce platform — “Canadian e-commerce provider Shopify sued a subsidiary of Chinese technology company JOYY Inc in New York federal court on Tuesday, accusing it of illegally copying Shopify’s software to build its own e-commerce platform. Shopify said in the lawsuit, filed in the U.S. District Court for the Southern District of New York, that JOYY’s Shopline created a ‘thinly disguised knockoff’ of its Dawn storefront-template technology to power competing e-commerce services.”

Friday’s Endnotes – 05/10/24

By , May 10, 2024.

Justices Leave Door Open to Discovery Rule Copyright Damages — Bloomberg Law’s Kyle Jahner writes about yesterday’s Supreme Court decision in Warner Chappell Music v. Nealy, where the Court resolved a circuit split over the question of whether a copyright plaintiff can recover damages for acts that allegedly occurred beyond the statute of limitations.

Stability AI, Midjourney should face artists’ copyright case, judge says — “A California federal judge said he was inclined to green-light a copyright lawsuit against Stability AI, Midjourney and other companies accused of misusing visual artists’ work to train their artificial intelligence-based image generation systems. U.S. District Judge William Orrick said on Tuesday that the ten artists behind the lawsuit had plausibly argued that Stability, Midjourney, DeviantArt and Runway AI copied and stored their work on company servers and could be liable for using it without permission.”

Connecticut AG Members Oppose State Ebook Licensing Bill — “On April 19, 2024, more than 60 Authors Guild members from the state of Connecticut sent a letter to leaders in both houses of the Connecticut General Assembly voicing their concerns about Senate Bill 148 and House Bill 5312. These bills would create the equivalent of a compulsory license for ebooks, audiobooks, and other digital media in violation of federal law and to the detriment of authors’ incomes.”

The Economics of Copyright: Incentives and Rewards (It’s Important to Get them Right) — Hugh Stevens writes of an interview with the US Copyright Office’s first Chief Economist, Dr. Brent Lutes, “While the studies cited above highlight the economic contribution that copyright industries make to national economies in terms of jobs and wealth generation, let us not forget the key point that Dr. Lutes underlined regarding the social welfare contribution of copyright through using market-based incentives to promote and encourage creativity and investment in creative outputs. It is hard, if not impossible, to put a dollar amount on the social welfare benefits of creative expression and cultural sovereignty, but they are immense if incalculable.”

Nvidia, Databricks Sued in Latest AI Copyright Class Actions — “While works gain protection upon creation, Dubus, Olrean, Makkai and Reynolds focus on authors with registered copyrights in books in a training dataset that Nvidia and Databricks has allegedly admitted copying to train its NeMo Megatron models. One part of the dataset used to train the models comprises 108 gigabytes of data pulled from Bibliotik, a ‘shadow library’ that hosts and distributed unlicensed copyright materials, according to the complaint. Shawn Presser, creator of Bibliotik, has confirmed in public statements that it contains nearly 200,000 books.”

Friday’s Endnotes – 05/03/24

By , May 03, 2024.

Generative AI is generating astronomical profits by trampling authors and publishers — “Copyright is a key part of regulation, as neither the tools nor corresponding profits of big tech would be possible at all if not for the immeasurably valuable authorship that permits the technology to generate—or, more aptly, regenerate—the coherent, intelligent text of human expression, including, in some cases, outputs that may act as market substitutes.”

Can Copyright Law Save Journalism From A.I.? — “The lawsuit is only the latest chapter in print journalism’s long struggle to survive the internet era. It may be a crucial one. Some of Silicon Valley’s tech barons are openly hostile to journalism, dreaming of the day when it can be ‘disrupted’ or rendered obsolete. To do so, however, they may have to get through copyright law first.”

Pirate IPTV Owner’s Conviction First Ever Under Protecting Lawful Streaming Act — “Passed by Congress late December 2020, the Protecting Lawful Streaming Act (PLSA) was crafted to urgently close a loophole in copyright law that treated unlicensed reproduction and distribution as a felony, but unlicensed streaming as a misdemeanor. This week, well over three years later, a 40-year-old former operator of an illicit IPTV service became the first person to be convicted under the PLSA. While a win is a win, the case wasn’t entirely straightforward.”

UK Lawmakers Call for AI Legislation to Protect Artists from Deepfakes, Copyright Infringement — “The report sets out eight recommendations, including ‘transparent labelling’ of AI-generated materials; a requirement for AI developers to keep records of the materials used in training AI, and a requirement for them to gain rightsholders’ permission; establish a rule that AI-generated content without human creativity involved can’t be copyrighted; and the creation of a ‘personality right’ that would protect people’s voice, image, name and likeness from AI deepfakes.”

French- and English-Language Canadians Protest Copyright Inaction — “Today, there’s yet another puzzling miss of any effort to mitigate the damage created by Canada’s ironically named Copyright Modernization Act of 2012. This time, both Access Copyright and Copibec, Canada’s English-language and French-language copyright collectives are speaking together in a statement condemning the Canadian federal government’s budget for 2024 ‘neglecting to include long-needed action regarding Canada’s fair dealing regime.'”

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