Friday’s Endnotes – 04/11/25

By , April 11, 2025.

Internet Archive vs. Music Labels: $600m+ Copyright Rift Edges Toward Settlement — “The Internet Archive’s ‘Great 78 Project’ digitizes historical recordings to preserve musical heritage, but in 2023 the initiative led to major record labels filing a copyright lawsuit. The financial stakes soared last month when the labels proposed to update their claim to $693 million in statutory damages. A recent filing suggests that due to significant progress in settlement discussions, it may not come to that.”

Photographer Asks Supreme Court to Decide if Embedded Instagram Posts Infringe Copyright — “In his lawsuit, McGucken accused thetravel.com of infringing his copyright in 36 photographs by embedding them without permission from his Instagram page over multiple articles. If thetravel.com had made new copies of McGucken’s photographs and uploaded them on its website, it would have been a straightforward case of copyright infringement. However, the website displayed the images by embedding them directly from McGucken’s Instagram page. While Instagram does not grant permission for companies to embed these images, a 2007 Ninth Circuit ruling known as the ‘server test’ established that when an image remains on a third party’s server and is not stored on the infringer’s computer, embedding it does not count as a new display.”

Copyright in Brazil in 2025: What to Expect? — “The availability of generative artificial intelligence (GenAI) systems, particularly with the launch of ChatGPT in November 2022, marks a new technological era and has catalyzed this renewed attention. Thus, old issues merge with new discussions, fueling an essential debate that we hope will be addressed constructively. Here, we highlight some key topics to follow in 2025.”

OpenAI’s models ‘memorized’ copyrighted content, new study suggests — “Models are prediction engines. Trained on a lot of data, they learn patterns — that’s how they’re able to generate essays, photos, and more. Most of the outputs aren’t verbatim copies of the training data, but owing to the way models ‘learn,’ some inevitably are. Image models have been found to regurgitate screenshots from movies they were trained on, while language models have been observed effectively plagiarizing news articles.”

Judge calls out OpenAI’s ‘straw man’ argument in New York Times copyright suit — “Essentially, the judge agreed with the NYT that OpenAI has not yet provided any evidence that the newspaper knew how ChatGPT would perform until the product was out in the wild. Therefore, he denied OpenAI’s motion to dismiss those claims as time-barred, while denouncing as a ‘straw man’ an OpenAI argument that the NYT, “as a ‘sophisticated publisher,’ had a duty ‘to take prompt action after being put on notice of what it now claims to be alleged infringement.'”

Friday’s Endnotes – 04/04/25

By , April 04, 2025.

March 2025 Roundup of Copyright News — The Copyright Alliance’s Rachel Kim reviews a busy month in copyright developments, with activity from the US Copyright Office, the Executive Branch, Congress, courts, and beyond.

Unfair Learning: GenAI Exceptionalism and Copyright Law — “This paper challenges the argument that generative artificial intelligence (GenAI) is entitled to broad immunity from copyright law for reproducing copyrighted works without authorization due to a fair use defense. It examines fair use legal arguments and eight distinct substantive arguments, contending that every legal and substantive argument favoring fair use for GenAI applies equally, if not more so, to humans.”

Music copyright group mandates ‘no AI use’ for new songs — “The Korea Music Copyright Association recently implemented a procedure for registering a new song, requiring songwriters to verify that they did not use artificial intelligence, reaffirming its stance that AI-generated music cannot be copyrighted.”

US authors’ copyright lawsuits against OpenAI and Microsoft combined in New York with newspaper actions — “Twelve US copyright cases against OpenAI and Microsoft have been consolidated in New York, despite most of the authors and news outlets suing the companies being opposed to centralisation. A transfer order made by the US judicial panel on multidistrict litigation on Thursday said that centralisation will ‘allow a single judge to coordinate discovery, streamline pretrial proceedings, and eliminate inconsistent rulings’.”

Counterclaim for copyright invalidity is not a ‘mirror image’ of an infringement claim — The court refused to dismiss the counterclaim as to invalidity of the copyright. The designer argued that the counterclaim was a ‘mirror image’ claim that was duplicative and redundant of the complaint itself. But the court disagreed. A counterclaim seeking a declaratory judgment is not duplicative or redundant, the court noted, ‘if it asserts an independent case or controversy which would remain viable after a dismissal of the plaintiff’s claim.'”

Friday’s Endnotes – 03/28/25

By , March 28, 2025.

The Global Creative Community Stands Unified Against Unchecked AI Use — “Artists, writers, musicians, designers, photographers, and other creative professionals are dealing with the impact of AI on their respective industries—with perspectives ranging from concern to outright opposition. The overarching issue is that AI companies are profiting from data that was never intended for their use without consent.”

Court Advances The New York Times Lawsuit Against OpenAI — “The Times filed the lawsuit in 2023 after an impasse in negotiations with OpenAI and Microsoft over a deal that’d resolve concerns around the use of its articles to train automated chatbots. The Times, after the highly publicized releases of ChatGPT and BingChat, notified the companies that their tech infringed on its articles. The terms of a resolution involved a licensing agreement and the institution of guardrails around generative artificial intelligence tools, though the talks reached no such truce.”

UK Publishers and Cambridge, Call out Meta and Piracy in Generative AI Training — “Today (March 25), the Publishers Association in the UK has pointed to Alex Reisner’s article at the Stateside Atlantic magazine, in which Reisner writes, ‘When employees at Meta started developing their flagship AI model, Llama 3, they faced a simple ethical question. The program would need to be trained on a huge amount of high-quality writing to be competitive with products such as ChatGPT, and acquiring all of that text legally could take time. Should they just pirate it instead?’ And this, of course, dovetails perfectly with Pallante’s closing comments in the AAP response to the call for comment in the states, in which she wrote, ‘Among our priorities is stopping the proliferation of pirate sites that are a scourge on American IP investments and an illegal source of AI development.’ More than once, she lands clearly on the point of piracy being involved as a source of ‘training’ content in generative AI that’s copyrighted, and pirated, then hoovered up by large language models.”

Anthropic wins early round in music publishers’ AI copyright case — “U.S. District Judge Eumi Lee said that the publishers’ request was too broad and that they failed to show Anthropic’s conduct caused them ‘irreparable harm.’ The publishers said in a statement that they ‘remain very confident in our case against Anthropic more broadly.'”

Dua Lipa wins copyright case over Levitating — “On Thursday, US Judge Katherine Polk Failla ruled that the songs only had generic similarities, including non-copyrightable musical elements that had also previously been used by Mozart, Gilbert and Sullivan, and the Bee Gees in their song Stayin’ Alive. It is the second time that Lipa has won a plagiarism case over Levitating, which was a global hit in 2020.”

Friday’s Endnotes – 03/21/25

By , March 21, 2025.

The Perils of ‘Free’ Information — Jonathan Barnett writes, “In my recent book The Big Steal, … I show that tech platforms have sought to weaken IP rights to reduce the costs of securing content and tech assets, which are then monetized within a portfolio of complementary products and services. While this strategy may reduce costs for users in the short term, it does not align with the public’s interest in preserving a knowledge ecosystem that can sustain technological and creative innovation over the long term. A singular focus on ‘free stuff’ distorts innovation markets by favoring platform-based and other integrated business models, impeding entry by ‘stand alone’ innovators in tech and creative markets, and diverting investment from economically and geopolitically critical industries that rely on robust IP protections. Contrary to settled expectations, setting information ‘free’ can yield outcomes that are bad for both innovation and competition.”

US Court of Appeal confirms human authorship requirement, including for AI — “In conclusion, the last word on AI-assisted works is still a long time away from being spelled out. Hopefully, future decisions will help shed light, not on the (now) irrelevant question of whether only humans can generally be regarded as authors, but rather on the key issue of what authorship and originality entail. And this is a question that goes to the core of copyright law, well before, well beyond and well after AI.”

Mariah Carey wins copyright case over Christmas hit — “In a ruling issued on Wednesday, a US judge rejected the allegations of songwriter Adam Stone, who released a song with the same name in 1989. He accused Carey of exploiting his ‘popularity’ and ‘style’. Mr Stone, who performs under the name Vince Vance, was claiming at least $20m (£16m) in damages. But in her ruling, Judge Mónica Ramírez Almadani cited expert testimony saying the two songs simply shared ‘Christmas song clichés’ that were common to several earlier hits.”

AAP Urges White House to Prioritize Copyright in AI Action Plan — “The AAP’s involvement in AI policy discussions comes at a crucial time for the publishing industry, with publishers increasingly concerned about unauthorized use of their intellectual property for AI training purposes while simultaneously exploring ways to incorporate AI tools into their own operations. There are currently dozens of lawsuits seeking to remedy the tech industry’s theft of copywritten material and establish precedent to protect the publishing industry going forward.”

Amazon is blundering into an AI copyright nightmare — “Music, like all worthwhile art, is about people. If more people want to make music, they can — by learning how to play an instrument or sing. One of the benefits of learning an instrument is that it deepens your appreciation; suddenly you can hear a song’s time signature or notice the difference in feel between keys. You don’t even have to be very good to make music people enjoy — that’s why God created punk!”

Friday’s Endnotes – 03/14/25

By , March 14, 2025.

Kadrey plaintiffs seek partial summary judgment that Meta’s torrenting of book files from pirated datasets is infringement, not fair use. Motion does not cover DMCA claim, fair use during training, or remedies. — “The Kadrey plaintiffs filed their motion for partial summary judgment. They ask the court to rule that Meta’s use of torrenting to download while allowing others to upload pirated copies of books from so-called shadow libraries. This unauthorized torrenting does not constitute fair use, the plaintiffs assert, citing the Second Circuit’s decision in Hachette v. Internet Archive.“

French publishers and authors sue Meta over copyright works used in AI training — “Three trade groups said they were launching legal action against Meta in a Paris court over what they said was the company’s ‘massive use of copyrighted works without authorization’ to train its generative AI model.”

John Squires Becomes Official Nominee to Head USPTO — Although the primary function of the USPTO is granting patents and registering trademarks, the Office also advises the Executive Branch on IP issues, including copyright. Its work there includes “treaty negotiation and monitoring the implementation of copyright-related international treaty provisions, including reviewing U.S. implementation of and adherence to international treaty obligations relating to copyright and related rights; technical assistance and training on copyright-related matters, to both U.S. and foreign officials; and monitoring domestic copyright policy developments within the Executive Branch, the U.S. Congress, and the courts.”

Chinese Court Rules That AI Image Has Copyright Protection — “The case revolves around an image created by Midjourney, a popular AI picture generator. The plaintiff with the surname Lin generated an image featuring a heart-shaped balloon. Lin later discovered that two companies had used the design in their social media posts without permission and subsequently filed a lawsuit.”

‘Moana’ Trial Ends in Win for Disney as Company Is Cleared of Copyright Infringement — “After a two-week trial in federal court in Los Angeles, the eight-member jury found unanimously that Disney did not have access to the 2011 screenplay or earlier treatments. The jury deliberated for less than three hours. A Disney spokesperson said, ‘We are incredibly proud of the collective work that went into the making of ‘Moana’ and are pleased that the jury found it had nothing to do with Plaintiff’s works.'”

Friday’s Endnotes – 03/07/25

By , March 07, 2025.

How the Emerging Market for AI Training Data is Eroding Big Tech’s ‘Fair Use’ Copyright Defense — “Around this time last year, news headlines and court documents were full of grand proclamations from AI tech corporations using pirated content to train their artificial intelligence models. Ripping off writers, musicians, and artists in order to build billion-dollar companies amounted to ‘fair use’ of their material, said the fast movers and thing-breakers. Fair use—a concept heretofore applied largely to the quotation of a few lines in a book review—was cited as legal cover for the most brazen and massive theft of intellectual property in history.”

A Global Phenomenon: The Creative Community’s Viral Outrage Against AI Theft — “The creative communities’ outrage against AI companies stealing their intellectual property is a global phenomenon. More and more, we are seeing creators and creative industries not just in the United States but throughout the world stepping up to voice their disapproval of government actions intended to kowtow to AI companies at the expense of culture, creativity, and the careers of creators.”

Hollywood Studios Sue Pirate IPTV Services in U.S. Court — “The Internet is littered with cheap IPTV services that offer access to a lot of content, for very little money. These deals often seem too good to be true and in most cases they are; at least for those who prefer to stay on the right side of the law. Yesterday, members of the Alliance for Creativity and Entertainment (ACE) filed two lawsuits against alleged operators of pirate IPTV services in the United States. Amazon, Netflix, Disney, Paramount, and other major Hollywood studios, accuse the defendants of widespread copyright infringement.”

Key ex-OpenAI researcher subpoenaed in AI copyright case — “The copyright case, ‘re OpenAI ChatGPT Litigation,’ was brought by book authors, including Paul Tremblay, Sarah Silverman, and Michael Chabon, who alleged that OpenAI infringed their copyrights by using their work to train its AI models. The plaintiffs also argued that ChatGPT infringed their works by liberally quoting those works sans attribution.”

Friday’s Endnotes – 02/28/25

By , February 28, 2025.

How AI models steal creative work — and what to do about it — In this recent Ted Talk, AI expert Ed Newton-Rex describes the three key resources for Generative AI systems: people, compute, and data. By licensing the copyrighted works to train AI models, we can ensure that AI companies and creators thrive together.

Musicians release silent album to protest UK’s AI copyright changes — “Britain, which Prime Minister Keir Starmer wants to become an AI superpower, has proposed relaxing laws that currently give creators of literary, dramatic, musical and artistic works the right to control the ways their material may be used. The proposed changes would allow AI developers to train their models on any material to which they have lawful access, and would require creators to proactively opt out to stop their work being used. The changes have been heavily criticised by many artists, who say it would reverse the principle of copyright law, which grants exclusive control to creators for their work.”

UK Publishers Advance the AI-Copyright Debate — “In working to assess the aftermath of the final push by the book business and nearby creative industries, the Publishers Association in London today (February 26) is sharing its appreciation for international support received during the two-and-a-half-month British government’s copyright-and-AI consultation period, which closed Tuesday night.”

Indian Music Industry Enters the Global Copyright Debate Over AI — “The legal battles surrounding generative AI and copyright continue to escalate with prominent players in the Indian music industry now seeking to join an existing lawsuit against OpenAI, the creator of ChatGPT. On February 13, 2025, industry giants such as Saregama, T-Series, and the Indian Music Industry (IMI) presented their concerns in a New Delhi court, arguing that OpenAI’s methods for training its AI models involve extracting protected song lyrics, music compositions, and recordings without proper licensing or compensation.”

‘There’s no infringement’: Chickasha leg lamp sparks copyright dispute with Warner Bros. — “Documents from October 2024 that Fox 25 obtained shows Warner Brothers telling many Chickasha groups that it owns the copyright and trademark for the leg lamp from the movie, ‘A Christmas Story.'”

Friday’s Endnotes – 02/21/25

By , February 21, 2025.

Copyright’s Big Win in the First Decided US Artificial Intelligence Case — “Copyright lawyers know the most important factor is factor 4, ‘market harm.’ Here, Ross was destroyed. First, it intended to create a competing product. Second, the Court noted that it ‘must consider not only current markets but also potential derivative ones ‘that creators of original works would in general develop or license others to develop.’’ The burden of proof was on Ross to show that there was no licensing market, and it failed to do so. With new agreements regularly announced between AI firms and publishers, and with AI rights being made available under collective licenses, this burden will become harder for defendants.”

Birkenstocks are not works of art, top German court rules in copyright case — “The company, whose sandals have over the years transformed from unglamorous footwear to coveted fashion items, wanted to stop three of its competitors from selling similar products. It had wanted the products sold by the German retailers Tchibo and shoe.com, as well as the Danish retailer Bestseller, to be pulled from the shelves and destroyed.”

Judge Rakoff’s long-awaited decision allowing DMCA 1202(b)(1) claim to proceed in Intercept v. OpenAI. Creates SDNY split with Judge McMahon decision in Raw Story — Read the decision here.

Site Blocking is Back on the US Agenda: It’s Long Overdue — “At the end of January, Rep. Zoe Lofgren (D-CA) introduced the Foreign Anti Digital Piracy Act (FAPDA). Under this draft legislation, a blocking order would apply only to illegal content and would have to be issued by a US court, with due process and judicial oversight, supported by clear evidence of copyright infringement.”

Friday’s Endnotes – 02/14/25

By , February 14, 2025.

Thomson Reuters wins an early court battle over AI, copyright, and fair use — “Similar lawsuits against OpenAI, Microsoft, and other AI giants are currently winding their way through the courts, and they could come down to similar questions about whether or not the AI tools can claim a ‘fair use’ defense of using copyrighted material.”

News/Media Alliance Announces Industry Lawsuit Against AI Content Theft — “This suit alleges that Cohere, an AI company valued at over $5 billion, engaged in widespread unauthorized use of publisher content in developing and running its generative AI systems. Cohere’s behavior amounts to massive, systematic copyright infringement, as well as trademark infringement. The complaint provides a non-exhaustive list of thousands of articles that Cohere has infringed, through training, real-time use of content, and infringing outputs.”

This is the First-Ever AI Image to Be Granted Copyright Protection — “Invoke filed an application with the U.S. Copyright Office last year to register the piece, claiming rights for the selection, coordination, and arrangement of the inpainted components of the composite image, but not the individual AI-generated segments. Keirsey smartly used the office’s own guidelines which maintain that protection will only be afforded to works that have meaningful human authorship — purely AI-generated content will not be eligible. However, AI-generated content that contains evidence of a human’s creative choices can still qualify for protection.”

[Guest post] Copyright in fictional universes — “The question of whether or not copyright can subsist in fictional universe came to fruition in the case of Shazam v Only Fools the Dining Experience and Others [2022] EWHC 1379. While this case is renowned for granting the first character copyright to Only Fools and Horses protagonist Del Boy under UK law, presiding judge John Kimball’s ratio might go considerably further.”

AI chatbots unable to accurately summarise news, BBC finds — “In the study, the BBC asked ChatGPT, Copilot, Gemini and Perplexity to summarise 100 news stories and rated each answer. It got journalists who were relevant experts in the subject of the article to rate the quality of answers from the AI assistants.”

Friday’s Endnotes – 02/07/25

By , February 07, 2025.

“Torrenting from a corporate laptop doesn’t feel right”: Meta emails unsealed — “Emails discussing torrenting prove that Meta knew it was ‘illegal,’ authors alleged. And Bashlykov’s warnings seemingly landed on deaf ears, with authors alleging that evidence showed Meta chose to instead hide its torrenting as best it could while downloading and seeding terabytes of data from multiple shadow libraries as recently as April 2024.”

More Great Copyright Books Freely Available on Information Law Series Archive — “Following the successful launch of the Information Law Series Archive in September 2024, ten more volumes have been made freely available on the IViR website. These include the groundbreaking and much-cited dissertations by Martin Senftleben on copyright and the three-step test, Mireille van Eechoud on applicable law in copyright, and Ashwin van Rooijen on software copyright and competition law.”

US court says copyright termination applies globally, potentially causing ‘chaos’ for rightsholders — “Until now, it was generally understood that when an author exercises their termination right under US law, this applies only to US rights – international rights remain with the assignee (i.e., the publisher who bought the rights). However, a recent ruling by the US District Court for the Middle District of Louisiana upended this: The court concluded that a termination under US law applies globally – or, at least, in all the countries that participate in the Berne Convention, the international treaty that requires signatory countries to recognize copyrights created in other signatory countries.”

Inside the Copyright Office’s Report, Copyright and Artificial Intelligence, Part 2: Copyrightability — “Part 2: Copyrightability analyzes the type and level of human contribution sufficient for outputs created using generative AI to be eligible for copyright protection in the United States. It provides an overview of the technologies and discusses existing U.S. copyright laws, the policy implications of copyrighting AI-generated works, and whether legislative changes are needed. It also describes how other countries are approaching the question of copyrightability.”

DC Comics Sued Over Superman’s Foreign Copyright Protections — “The assignment of the rights to the Superman story under copyright law in countries like Canada, the United Kingdom, Ireland, and Australia automatically terminated 25 years after the author’s death, according to the complaint filed in the US District Court for the Southern District of New York”

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