Friday’s Endnotes – 10/11/24

By , October 11, 2024.

Appeal Court Affirms Piracy Liability Verdict Against ISP Grande, Vacates $47m Damages Award — “In Grande’s case, there is a direct nexus between the copyright infringements and the use of Grande’s network, as Internet access was required to share the copyright infringing music. ‘Grande provided those subscribers with the tools necessary to conduct those infringements and continued doing so after learning that those subscribers were repeatedly using those tools to infringe, in furtherance of a policy never to terminate subscribers for copyright infringement,’ the Court writes.”

Why The New York Times’ lawyers are inspecting OpenAI’s code in a secretive room — “The lawsuit argues OpenAI infringed on its intellectual property in two ways. There is the ‘input’ case — alleging that the LLM illegally hoovered up over 10 million New York Times articles to train ChatGPT and Microsoft Copilot without compensation. And the ‘output’ case — arguing that when asked, ChatGPT can spit out a New York Times article that readers would otherwise pay a subscription for.”

The German LAION decision: A problematic understanding of the scope of the TDM copyright exceptions and the transition from TDM to AI training — “A fundamental aspect of the decision that deserves greater attention is that the analysis of the court is incomplete. As such, it may not represent good guidance for either concerned stakeholders or other courts in Europe faced with questions of unlicensed TDM and subsequent AI training. Specifically (and likely because of how the plaintiff photographer pleaded the case), the court failed to consider that the TDM exception for scientific research would not cover all of LAION’s activities as described in the judgment itself, notably the circumstance – following the completion of TDM activities – that LAION made the resulting dataset publicly available for anyone to use and for any purpose, including commercial AI training.”

‘Good news’ as copyright and AI stand-off to end within months — “The ongoing stand-off over the use of copyright protected materials in training AI systems will be resolved by the end of the year, according to the UK’s parliamentary under-secretary of state for science, innovation and technology, Feryal Clark. Speaking recently at the Times Tech Summit, Clark stressed that a resolution is expected in the coming months, whether that be through legislation or policy amendment.”

How pirate websites undermine research integrity — “Unlike publishers, pirate websites have no incentive to confirm the accuracy of the articles they illegally harvest or ensure the research meets ethical standards. There’s also no incentive to retract or correct an article if a problem arises. And they do arise: more than 45,000 retractions have been identified by Retraction Watch since the database launched in 2010. Publishers, working with organizations like the Committee on Publication Ethics, proactively work to correct inaccuracies and root out plagiarism or falsification of data and results.”

Friday’s Endnotes – 10/04/24

By , October 04, 2024.

Warhol‘s lessons for the publishing industry — The Columbia Journal of Law & Arts published this week an article based on remarks I gave during the 2023 Kernochan Center for Law, Media, and Arts Symposium. It focuses on three key areas that the Warhol Court touched on in its decision—transformativeness, commerciality, and market harm—to see what questions were answered and what questions were left for another day.

EU copyright law roundup – third trimester of 2024 — A roundup from the Kluwer Copyright Blog on notable copyright law developments in the EU from July through September of 2024, including CJEU decisions, Advocate General opinions, and important policy developments.

OpenAI Faces Early Appeal in First AI Copyright Suit From Coders — “OpenAI Inc. and Microsoft Corp.‘s GitHub will head to the country’s largest federal appeals court to resolve their first copyright lawsuit from open-source programmers who claim the companies’ AI coding tool Copilot violates a decades-old digital copyright law. Judge Jon S. Tigar granted the programmers’ request for a mid-case turn to the US Court of Appeals for the Ninth Circuit, which must determine whether OpenAI’s copying of open-source code to train its AI model without proper attribution to the programmers could be a violation of the Digital Millennium Copyright Act.”

Copyright Office Spanish Language Program Broadens Access to Copyright Information — “A key initiative under the Copyright for All strategic goal is the expansion of the Office’s Spanish language program. Forty-two million people in the United States speak Spanish at home. To broaden access to the copyright system, the Office has made a range of materials accessible to the Spanish-speaking community. Over the past two years, the Copyright Office has released more than forty translated resources for Spanish speakers, accessible through the Copyright in Spanish home page.”

Termination right is not extinguished in bankruptcy — “The right to terminate a written transfer agreement under the Copyright Act was not extinguished by a bankruptcy proceeding, the federal court for Miami has held… This band at the center of this dispute is 2 Live Crew, a hip-hop group from Miami that was commercially successfully in the 1980s and 1990s… Campbell went into bankruptcy proceedings in 1995, along with the band’s record label Luke Records… The events leading to this dispute began when Campbell, along with the heirs of the now-late Ross and Wong Won, served a notice of termination on Lil’ Joe Records… Lil’ Joe sued Campbell, as well as the heirs of Ross and Wong Won, seeking declaratory judgment as to the validity of the termination notice.”

Friday’s Endnotes – 09/27/24

By , September 27, 2024.

OpenAI Training Data to Be Inspected in Authors’ Copyright Cases — “In a Tuesday filing, authors suing the Sam Altman-led firm and OpenAI indicated that they came to terms on protocols for inspection of the information. They’ll seek details related to the incorporation of their works in training datasets, which could be a battleground in the case that may help establish guardrails for the creation of automated chatbots.”

U.S. Court Orders LibGen to Pay $30m to Publishers, Issues Broad Injunction — “A New York federal court has ordered the operators of shadow library LibGen to pay $30 million in copyright infringement damages. The default judgment comes with a broad injunction that affects third-party services including domain registries, browser extensions, CDN providers, IPFS gateways, advertisers, and more. These parties should stop facilitating access to the pirate site.”

How A Strong Copyright System Benefits the United States — “It is copyright that provides an established legal framework relied upon for the production of informational writing required by democratic societies. As the Supreme Court explained, ‘[i]n our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” And by creating a marketable right for authors, copyright established an alternative to patronage systems that can reduce the diversity of voices, chill speech, or even encourage propaganda.'”

Technological Innovations do not Negate the Fundamental Principles of Copyright Law and the Fair Use Doctrine — “Whether or not this decision will impact a ‘transformativeness’ analysis with respect to the swathe of generative artificial intelligence cases popping up within the Second and Ninth Circuits remains to be seen, although the secondary use argument in this case seems analogous to the training argument proffered by AI companies.”

Author of AI-Generated Work Rejected by Copyright Office Says Lack of Protection Has Crushed Him — Jason Allen, who garnered national attention after a work he created using Midjourney won an award at the 2022 Colorado State Fair, filed a declaratory judgment action this week challenging the U.S. Copyright Office’s decision to reject his application for copyright registration in the work.

Friday’s Endnotes – 09/20/24

By , September 20, 2024.

Site Blocking Is Effective Worldwide Says New Report by IP House and DCA — “Three separate studies—focused on the United Kingdom, Portugal, and Australia—found that when sites were blocked, traffic decreased to those sites. The decrease was substantial; traffic decreased by 89 percent in the United Kingdom, 70 percent in Portugal, and 69 percent in Australia.”

AI Art Copyright Stays Doubtful After Appeals Court Argument — “The first federal appeals court battle over the boundaries of copyright law’s application to AI-generated works carries huge implications for creative industries given the rapid proliferation of the technology. The circumstances upon which copyright vests in work wholly or partly created by AI and who gets to control and enforce that right will hinge on interpretations of cases like Thaler’s.”

Operation 404.7 Targets 675 Pirate Sites, Brazil’s ISPs Now Block 6,700+ Domains — “Brazil’s Ministry of Justice and Public Security today announced fresh action and the latest achievements in the ongoing ‘Operation 404’ anti-piracy campaign. International partners including City of London Police, MPA, ACE, IFPI, ESA, ALIANZA, and the EU’s Intellectual Property Office, assisted local agencies as they reportedly took down 675 pirate sites, 14 apps, and executed search and seizure warrants. Data seen by TF reveals that ISP’s in Brazil now block 6,700+ domains.”

Austrian Supreme Court tackles right of reproduction, three-step test, and parody defence in Robber Hotzenplotz copyright case — “Further to the dismissal of the copyright and trade mark claims but not the entirety of the action on appeal, the defendant filed an extraordinary appeal. The Austrian Supreme Court dismissed it by means of a decision issued a few days ago. In so doing, the Supreme Court tackled 3 key issues under EU copyright law – specifically: the InfoSoc Directive. They are the: (1) Scope of the right of reproduction; (2) Role and addressees of the three-step test; and (3) Notion of ‘parody’.”

How High School Debate Led to My Career in Copyright Policy — “High school debate programs enable students to hone so many important skills—including analysis, organization of ideas, writing, public speaking, and researching all that they can about the national topic—especially if it’s one that they can sink their teeth into. So, when I first learned about the 2024 National High School Debate topic, I was very excited. To have a topic of this caliber will really resonate with students because the issues are multi-faceted and, ultimately, through their research, it will teach them about the importance of protecting creative works through strong and effective IP laws.”

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.”

« Older articles