Friday’s Endnotes – 12/08/23

By , December 08, 2023.

Sandra Day O’Connor’s Copyright Legacy — The Copyright Alliance’s Rachel Kim takes a look at three major copyright decisions penned by Justice O’Connor, who passed away December 1: Harper & Row Publishers v. Nation Enterprises, Feist Publications v. Rural Telephone Service Co., and Stewart v. Abend.

Parliamentary head calls for digital copyright law for web payments — “Turkish parliament’s digital media commission head has advocated for the immediate implementation of digital copyright law in a bid to secure fair compensation for media outlets in Türkiye.” This follows on successful laws in places like Canada, Australia, and Europe.

AAP Calls Big Tech’s AI Arguments ‘Nonsense’ — “In a second round of comments submitted to the U.S. Copyright Office this week, the Association of American Publishers insists that copyright law protects authors, publishers, and creators from the unauthorized appropriation of their works by AI developers and slammed assertions by the tech industry that fair use permits developers to use copyrighted works to train their systems without permission or compensation.”

SCOTUS ruling could impact spats over Mariah’s ‘Christmas,’ Tupac tune — “The U.S. Supreme Court will decide in coming months how damages should be calculated when copyright infringement that happened long ago is only recently discovered, and its decision could impact high-profile disputes involving popular music.”

Generative AI could face its biggest legal tests in 2024 — “AI has been eating the world this year, with the launch of GPT-4, DALL·E 3, Bing Chat, Gemini, and dozens of other AI models and tools capable of generating text and images from a simple written prompt. To train these models, AI developers have relied on millions of texts and images created by real people—and some of them aren’t very happy that their work has been used without their permission. With the launches came the lawsuits. And next year, the first of them will likely go to trial.”

Friday’s Endnotes – 12/01/23

By , December 01, 2023.

Google to pay Canada’s “link tax,” drops threat of removing news from search — “Google has agreed to pay Canadian news businesses $100 million a year to comply with the country’s Online News Act, despite previously saying it would remove Canadian news links from search rather than make the required payments. … ‘Google will contribute $100 million in financial support annually, indexed to inflation, for a wide range of news businesses across the country, including independent news businesses and those from Indigenous and official-language minority communities,’ Minister of Canadian Heritage Pascale St-Onge said in a statement today.”

Artists take new shot at Stability, Midjourney in updated copyright lawsuit — “Illustrators Sarah Andersen, Kelly McKernan and Karla Ortiz initially sued the companies in January, in one of the first of several lawsuits that have been filed by copyright owners against tech companies over the alleged use of their work in AI training. [Judge] Orrick found flaws with some of the artists’ arguments, including that the companies’ AI output infringes their copyrights, but he left intact their core claim that the AI training process violates their rights. The plaintiffs reasserted their claims on Wednesday, now joined by artists H. Southworth, Grzegorz Rutkowski, Gregory Manchess, Gerald Brom, Jingna Zhang, Julia Kaye and Adam Ellis.”

Beijing Internet Court Recognizes Copyright in AI-Generated Images — “The Court stated that from the time the plaintiff conceived the image involved in the case to the final selection of the image involved, the plaintiff made a certain amount of intellectual investment, such as designing the presentation of characters, selecting prompt words, arranging the order of prompt words, and setting relevant parameters and so on. The images involved in the case reflected the plaintiff’s intellectual investment, so the images involved in the case met the requirements of ‘intellectual achievements.'”

Copyright’s Lost Art of Substantial Similarity — From Sandra Aistars: “This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense. The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts’ ability to properly evaluate whether the use of appropriated material in a second work is justified, or whether expression has been taken from the first work for some other (infringing) purpose, is compromised. If courts fail to properly understand works because they do not fully analyze basic infringement claims, it can also affect later users and owners of artworks.”

“Please regulate AI:” Artists push for U.S. copyright reforms but tech industry says not so fast — “The nation’s top copyright official hasn’t yet taken sides. She told The Associated Press she’s listening to everyone as her office weighs whether copyright reforms are needed for a new era of generative AI tools that can spit out compelling imagery, music, video and passages of text. ‘We’ve received close to 10,000 comments,’ said Shira Perlmutter, the U.S. register of copyrights, in an interview. ‘Every one of them is being read by a human being, not a computer. And I myself am reading a large part of them.'”

Friday’s Endnotes – 11/17/23

By , November 17, 2023.

Why I Just Resigned From My Job in Generative AI — Ed Newton-Rex penned the following essay after stepping away from his post as VP of Audio at Stability AI. “Companies worth billions of dollars are, without permission, training generative AI models on creators’ works, which are then being used to create new content that in many cases can compete with the original works. I don’t see how this can be acceptable in a society that has set up the economics of the creative arts such that creators rely on copyright.”

Column: AI investors say they’ll go broke if they have to pay for copyrighted works. Don’t believe it — LA Times columnist Michael Hiltzik writes, “Followers of high finance are familiar with the old principle of privatizing profits and socializing losses — that is, treating the former as the rightful property of investors and shareholders while sticking the public with the latter. It’s the principle that gave us taxpayer bailouts of big banks and the auto companies during the last recession. Investors in artificial intelligence are taking the idea one step further in fighting against lawsuits filed by artists and writers asserting that the AI development process involves copyright infringement on a massive scale.”

Tenth Circuit Contributes Clarity to Contributory Liability in Copyright Infringement — “The Tenth Circuit dismissed the district court’s limitation regarding the third factor, namely that the defendant must have caused or contributed to the ‘initial’ infringement. The Court noted that such a qualification would mean that ‘contributory infringement liability would rarely, if ever, lie for ongoing, repeated infringements.'”

No Step-Free Copyright Exceptions: The Role of the Three-step in Defining Permitted Uses of Protected Content (including TDM for AI-Training Purposes) — From Eleonara Rosati: ” A debated issue is whether a court, having established that the relevant conditions of an applicable [exception or limitation] under national law are prima facie satisfied, is also required to assess if the unauthorized act in question passes the [three-step test] to determine if that particular act is in fact outside the control of the concerned rightholder. This study addresses this question, which is ultimately answered in the affirmative.”

Copyright Exceptions and Digital Exhaustion addressed by the European Court of Human Rights (yes, the one in Strasburg!) — “Over the last decades, European lawyers got used to the – at times remarkable and even forceful – interventions of the Court of Justice of the EU (CJEU) in copyright law. But last year, one supranational interference with copyright law surprisingly did not come from Luxemburg, but from Strasbourg: the judgment in Safarov v Azerbaijan.”

Friday’s Endnotes – 11/03/23

By , November 03, 2023.

Judge pares down artists’ AI copyright lawsuit against Midjourney, Stability AI — “U.S. District Judge William Orrick dismissed some claims from the proposed class action brought by Sarah Andersen, Kelly McKernan and Karla Ortiz, including all of the allegations against Midjourney and DeviantArt. The judge said the artists could file an amended complaint against the two companies, whose systems utilize Stability’s Stable Diffusion text-to-image technology. Orrick also dismissed McKernan and Ortiz’s copyright infringement claims entirely. The judge allowed Andersen to continue pursuing her key claim that Stability’s alleged use of her work to train Stable Diffusion infringed her copyrights.”

AI Chatbots are scraping news reporting and copyrighted content, News Media Alliance says — “In the published white paper, the trade group also rejected arguments that A.I. bots have simply ‘learned’ facts by reading various sets of data, like a human being would. The group said ‘it is inaccurate’ to form such a conclusion ‘because models retain the expressions of facts that are contained in works in their copied training materials (and which copyright protects) without ever absorbing any underlying concepts.'”

Choreography Copyright Gets Its Due in the Ninth Circuit — “On Wednesday, the Ninth Circuit Court of Appeals revived a copyright lawsuit brought by choreographer Kyle Hanagami (Blackpink, Jennifer Lopez, Britney Spears) against Fortnite publisher Epic Games. Hanagami first sued Epic in March 2022 over the Fortnite emote ‘It’s Complicated,’ which Hanagami claims is an unauthorized copy of the choreography he published for the 2017 song ‘How Long’ by Charlie Puth.”

Why Overbroad State Library Ebook Licensing Bills Are Unconstitutional — “This policy memo explains how federal copyright law supersedes and limits state laws that regulate the licensing of copyrighted works. While states can validly target certain abusive conduct related to the manner in which copyright licenses are negotiated, federal law is clear that states cannot cross the line by dictating the terms of such licenses when they directly implicate the exclusive rights secured by the Copyright Act.”

Entry into force of the new Copyright Law in Myanmar — “Myanmar’s Copyright Law … which was enacted on May 24, 2019, has come into effect on October 31, 2023 … thereby repealing the Myanmar Copyright Act of 1914…. Similar to copyright laws in many other countries, copyright protection in Myanmar is now granted automatically upon the creation of a work. As a result, registering copyrights in Myanmar is considered optional but recommended for enforcement purposes.”

Friday’s Endnotes – 10/13/23

By , October 13, 2023.

Shared fate: Protecting customers with generative AI indemnification — Google wants to be master of its own destiny. In a blog post this week, the company identified seven of its AI-based products for which it will indemnify a user if they get sued because Google’s training data used copyrighted material or if they get sued over the output they generate.

Thaler Appeals D.C. Court Decision Denying Copyright for AI-Generated Art — The first U.S. court decision on copyrightability of AI-generated art is heading to the circuit courts.

Photographer Says Miles Davis Tattoo is Not Fair Use After Andy Warhol Ruling — “A photographer, who is suing celebrity tattoo artist Kat Von D for using his photo of jazz musician Miles Davis as a tattoo for a client, has claimed that the inking is not a fair use of his work — after the U.S. Supreme Court’s ruling on The Andy Warhol Foundation v. Lynn Goldsmith case.”

Capitol Records fights Vimeo copyright protections in Second Circuit — “A dozen record labels asked the Second Circuit Court of Appeals on Thursday to hold Vimeo accountable for copyright infringement, saying the company ignored red flags when employees encountered recognizable recordings on the video-hosting website.”

Game of Thrones AI Completed Books Removed After Being Noted In George RR Martin Lawsuit — “The fan who released finished versions of the Game of Thrones books using AI has removed them after being named in George R.R. Martin’s lawsuit. Recently, Martin and several other authors teamed up to sue ChatGPT’s parent company OpenAI, alleging ‘mass-scale copyright infringement.’ The lawsuit specifically cited the fan who famously used ChatGPT to write finished versions of The Winds of Winter and A Dream of Spring, the final two volumes in Martin’s A Song of Ice and Fire series.”

Friday’s Endnotes – 09/29/23

By , September 29, 2023.

Oversight of the U.S. Copyright Office — On Wednesday, the House Intellectual Property Subcommittee held an oversight hearing on the U.S. Copyright Office. A video of the hearing is available at the link, featuring Register Shira Perlmutter testifying on artificial intelligence, music licensing, Copyright Office modernization, and more. Read Register Perlmutter’s written testimony here.

Of Artificial Intelligence and Untidy Facts: Federal District Court Denies Summary Judgment in AI Copyright Case — Perhaps the first US court decision on the merits to address copyright and AI training, but this one largely leaves the big questions for another day. Read the expert analysis of the decision here, then check out the decision itself here.

Fair Imitation or Infringement? Analyzing the Humans of Bombay Copyright Case — Analysis of a recently filed lawsuit in India by storytelling platform Humans of Bombay against competitor People of India, covering core concepts of India’s copyright law, including fair dealing.

Hollywood’s AI Compromise: Writers Get Protection, Studios Aim for Copyright — Hollywood Reporter’s Winston Cho looks at the AI related terms of the tentative deal reached yesterday between the AMPTP, representing film and TV producers, and the Writers Guild of America. Writes Cho, “Included in the agreement were provisions placing guardrails around the use of generative AI that not only protect writers but also the studios, which are signaling they plan to pursue copyrights of works created in part by AI tools. The deal doesn’t bar the use of AI but restricts how it can be credited and utilized.”

Music publishers double down on copyright claims against X — “If the case gets to court, the dispute will likely focus on the good old copyright safe harbour. X can avoid liability for copyright infringing content uploaded by its users providing it has takedown system in place to deal with infringement and infringers when made aware of such things by copyright owners. X does have a takedown system, but the publishers argue that it is insufficient for the social media company to avoid liability via the safe harbour in the US Digital Millennium Copyright Act. This means that X would have to demonstrate how its takedown system is, in fact, super duper.”

Friday’s Endnotes – 09/22/23

By , September 22, 2023.

Have We Misunderstood Copyright’s Consequences? — A very intriguing new paper from economist Stan Liebowitz. From the abstract: “This paper uses an unusually rich 21st century data set to compare two sets of vintage bestsellers from the early 20th century that, by a circuitous path of copyright law alterations, came to have different copyright treatments. The most striking result is that, on average, copyrighted vintage bestsellers sell almost four times as many copies as public domain vintage bestsellers and this result holds throughout the sales distribution. This result conflicts with the expectation that copyright would restrict sales by allowing the exercise of monopoly power, and instead points to factors such as post-creation investment by publishers as being much more important than previously recognized.”

The Authors Guild, John Grisham, Jodi Picoult, David Baldacci, George R.R. Martin, and 13 Other Authors File Class-Action Suit Against OpenAI — This was the big copyright news driving this week. Check out the Authors Guild page here for more information about the litigation, statements from the plaintiffs and counsel, and a link to the complaint itself.

Advertising on Pirate Sites Outlawed in Ukraine Under New Law — “Under a new law set to be enforced early October, placing advertising on pirate sites will be outlawed in Ukraine. Signed earlier this year by President Volodymyr Zelenskyy, the legislation targets sites that appear on the World Intellectual Property Organization’s WIPO Alert blacklist for systematically ignoring takedown demands.”

Internet TV services under the scrutiny of EU copyright law: CJEU ruling in Ocilion — Discussion of a CJEU case from July concerning an interesting (though technical) copyright issue involving a commercial IPTV service that provides, among other features, cloud recording and storage of TV programs. US copyright fans may see shades of Cablevision and Fox Broadcasting v Dish Network here.

Friday’s Endnotes – 09/15/23

By , September 15, 2023.

Publishers’ Lawsuit Accuses Libgen of “Staggering” Copyright Infringement — “Cengage, Macmillan Learning, McGraw Hill and Pearson Education have filed a copyright infringement lawsuit against Library Genesis, a major ‘shadow library’ also known as Libgen. The publishers can’t currently identify the site’s operators but believe they are likely based overseas. Citing ‘staggering’ levels of infringement, the companies are seeking damages and an order that will allow them to seize the site’s domains or put them out of action.”

BREAKING: BGH asks CJEU for clarification of ‘pastiche’ — At IPKat, Mirko Brüß relays the latest news in the 24 year dispute brought by electronic artist Kraftwerk against hip-hop producer Moses Pelham over Pelham’s unauthorized use of a Kraftwerk sample. As Brüß explains, the CJEU is asked to weigh in on the legality of the sample after June 7, 2021, due to an intervening change in German law.

More Authors Sue OpenAI for Copyright Infringement — This week saw a new lawsuit filed alleging copyright infringement by AI developers. The suit is being brought by authors Michael Chabon, David Henry Hwang, Matthew Klam, Rachel Louise Snyder, and Ayelet Waldman, and alleges in part that the datasets used by OpenAI to train ChatGPT are infringing.

Time To Copyright Indigenous Designs? A Mexican Fashion Spat — A recent dispute involving fashion designer Caroline Herrera and her use of embroidery and textile designs from several indigenous communities in Mexico shines a light on debates to amend the country’s federal copyright law to protect the country’s indigenous arts.

U.S. Chamber Joins Innovators, Creators, Thought Leaders, Former Government Officials, Trade Associations, and Academics to Release New Intellectual Property Principles — “‘Activists have dismissed the importance of intellectual property policy and bad actors have stolen IP for monetary and competitive gain. This injures inventors and creators, damages emerging industries and businesses, and harms American consumers and workers. It is time to prioritize IP protections. A failure to do so will endanger future investment in innovation,’ said Patrick Kilbride, Senior Vice President of the Global Innovation Policy Center at the U.S. Chamber of Commerce.”

Friday’s Endnotes – 09/08/23

By , September 08, 2023.

Do Copyright Professors Pay Attention to Economists? How Empirical Evidence on Copyright Piracy Appears (or Not) in Law Literature — Highly recommended new draft from Justin Hughes and Michael D. Smith which explores the question why, given that the vast majority of peer-reviewed empirical studies demonstrate that piracy harms authorized sales of copyrighted works, the majority of citations in the law literature are to the minority of studies that show little or no harm.

Digitizing Over 9 Million Historical Record Pages and Counting — “In 2021, the Copyright Office began digitizing the Historical Record Books Collection’s more than 26,000 volumes—over 26,000,000 pages—making it one of the most extensive digitization projects at the Library of Congress. … The Office published the first 500 digitized record books online in February 2022 and now has digitized more than 9 million pages of registration applications.”

Artist Who Duped Art Contest With AI Image Has Copyright Application Rejected — PetaPixel’s Matt Growcoot reports on this week’s ruling by the US Copyright Office’s Review Board which rejected an artist’s request to reconsider the Office’s refusal to register the copyright in a work generated using Midjourney.

It’s a Taking: Copyright Deposit Requirement Violates Fifth Amendment — “Addressing the issue for the first time, the US Court of Appeals for the District of Columbia found that the Copyright Act of 1976’s requirement to deposit two copies of a work with the Library of Congress within three months of the work’s publication was unconstitutional under the Fifth Amendment’s Takings Clause.”

Microsoft says it will take the heat if Copilot AI commercial users get sued — “In a blog post about an initiative called the Copilot Copyright Commitment, Microsoft chief legal officer Brad Smith said the company will take the heat for any potential legal risks as more copyright holders question how AI companies handle protected works. Microsoft said the policy is an extension of its overall AI customer commitments, announced earlier this year.”

Friday’s Endnotes – 08/11/23

By , August 11, 2023.

This is the last endnotes of the summer. See you all in September!

State Attempts to Sink Blackbeard Infringement Case by “Deep Sixing” the Law They Passed to Claim the Copyrights — Stephen Carlisle takes a close look at the latest developments in the long-running litigation involving videographer Rick Allen and the state of North Carolina, which has already been to the Supreme Court.

Houdini and the Magic of Copyright — Marilyn Creswell, Librarian-in-Residence at the U.S. Copyright Office, tells the story of three “playlets” that legendary magician Harry Houdini registered with the Office.

AI Trained on AI Images Produces Terrible Results, Study Finds — “If the research paper is correct, then it means that AI will not be able to develop an endless fountain of data. Instead of relying on its own output, AI will still need real, high-quality images to keep progressing. It means that generative AI will need photographers. With picture agencies and photographers now very much alive to the fact that their intellectual property assets have been used en-masse to train AI image generators, this technological quirk may force AI companies to license the training data.”

Before Generative AI, Big Tech Taught Artists to Abdicate Copyright Rights — “In the copyright world, platform operators have consistently circumvented their obligations under the DMCA with shrugging statements like We can’t police the internet, alluding to staggering volume while conjuring an association with authoritarianism. Now, the circumstances are different. It is a near certainty that every creative work made has been, or will be, ingested into one or more AI training models, and unless the courts find this to be an act of mass piracy and order disgorgement of the datasets, creators may have to accept that their work is being turned into pink slime.”

Prosecraft has infuriated authors by using their books without consent – but what does copyright law say? — “By Smith’s own admission, Prosecraft uses more than 25,000 books. None of this would be possible without a “shadow library”: the Achilles’ heel of AI technologies.A new term in the language of copyright law, “shadow library” has evolved from a growing body of legal disputes between businesses based on artificial intelligence and published human authors.”

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