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.”

Friday’s Endnotes – 08/04/23

By , August 04, 2023.

An AI Scraping Tool Is Overwhelming Websites With Traffic — “The people at the head of the new crop of AI companies believe that their technology could replace 80 percent of  jobs in the U.S. and pose ‘massive risks’ to society. We should be skeptical of these claims, but it’s also worth noting that the people building tools they consider to be so disruptive are doing so without ever asking the internet users whose efforts are powering AI if they wish to fuel that technology.”

AI ‘Authorship’ Muddies the Waters of Copyright Law Claims — Copyright expert Zvi Rosen asks, “Is it infringement to use copyrighted works to train AI? Does an AI-created work even have an author, as the Constitution requires for copyright protection? Must an author be a person, and what if the author uses a machine to create?”

Agence France-Presse pursues copyright case against X, formerly known as Twitter — “The news agency announced the legal action in a statement. It said it is seeking payment under European Union intellectual property rules that cover ‘neighboring rights,’ which allow news outlets and publishers to seek payment from digital platforms for the sharing of their work.”

Court Rejects Appeals of Copyright Royalty Board Decision on 2021-2025 Webcasting Royalties — “Three parties appealed the CRB’s June 2021 decision setting the royalties to be paid by webcasters for 2021-2025 (the CRB sets rates in 5-year increments). The NAB and the NRB-NMLC (i.e., the National Religious Broadcasters’ noncommercial music licensing committee) argued that the royalties set for their members should be lower than the rates set by the CRB. SoundExchange, on the other hand, argued that they should be higher.”

Friday’s Endnotes – 07/28/23

By , July 28, 2023.

Scuttling Blackbeard’s Law — Plagiarism Today’s Jonathan Bailey notes a recent law enacted in North Carolina that repealed the 2015 law that effectively placed any audiovisual footage of underwater shipwrecks into the public domain. The law arose out of a dispute between the state and photographer Rick Allen which ultimately led to the Supreme Court, which issued a March 2020 decision addressing copyright infringement and state sovereign immunity. The litigation continues; following the Supreme Court decision, the district court allowed Allen to amend his original complaint.

The Pen Is Mightier Than The Large Language Model — “AI regulation that protects America’s creatives would also preserve the quality of its journalism, poetry, television shows, movies, stories and books that the U.S. is known and admired for around the world. Without our written culture, the ground we stand on as an exemplar of speech that is not only free, but also high quality, will substantially weaken.”

Off the Charts: Derivative Work Copyright Registers All Material in Derivative Work — “In a matter of first impression, the US Court of Appeals for the Ninth Circuit … agreed with other circuits that by registering a derivative work, an author registers all the material included in the derivative work, including any unregistered original works.”

YouTube Rippers’ Appeal of RIAA’s $83 Million Piracy Win Moves Forward — “While Mr. Kurbanov previously walked away from the U.S. court battle, he may choose to keep on fighting. In a new filing submitted yesterday, a challenge against the piracy liability ruling and damages award was docketed at the Court of Appeals for the Fourth Circuit. The appeal doesn’t come as a complete surprise. More than a year ago, Kurbanov’s legal team already signaled their intention to challenge the verdict. A notice of appeal was filed in March 2022, but it took more than a year before the case was formally docketed.”

The Impact of the Supreme Court’s Goldsmith Decision on Copyright Enforcement Against AI Tools — “The U.S. Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith sent ripples through the legal and artistic communities. Months later, legal scholars and art journalists continue to debate whether the decision opens the door for federal courts to act as ‘art critics.’ Many, however, downplay how the Supreme Court’s decision impacts the ways in which copyright owners may enforce their rights against generative AI tools.”

Friday’s Endnotes – 07/21/23

By , July 21, 2023.

Judge lets art trio take another crack at suing AI devs over copyright — “The artists, represented by attorney Matthew Butterick and the Joseph Saveri Law Firm, argued that each image generated by AI software was created by combining relevant images scraped from its training dataset. And since those original works are protected by copyright, they argued, all AI-generated knock-offs infringe upon the artists’ rights.”

Instagram dodges photographers’ copyright claims on appeal – but case likely continues — “A class of photographers whose Instagram photos were embedded by other websites failed on Monday to convince a three-judge panel at the 9th U.S. Circuit Court of Appeals to set aside controversial precedent in order to hold Instagram liable for copyright infringement. But the panel also said that the photographers had raised ‘serious and well argued’ policy concerns about copyright holders’ ability to control and profit from their work. If lead plaintiffs Alexis Hunley and Matthew Scott Brauer want to challenge the precedent that controlled the outcome of this case, the panel said, they should petition the 9th Circuit for an en banc rehearing.”

Thousands of authors demand payment from AI companies for use of copyrighted works — “The list of more than 8,000 authors includes some of the world’s most celebrated writers, including Margaret Atwood, Dan Brown, Michael Chabon, Jonathan Franzen, James Patterson, Jodi Picoult and Philip Pullman, among others. In an open letter they signed, posted by the Authors Guild Tuesday, the writers accused AI companies of unfairly profiting from their work.”

House IP Subcommittee Mulls Copyright and Design Patent Revisions Amid Right-to-Repair Debate — “The sole pro-IP perspective on the witness panel was Devlin Hartline, Legal Fellow at the Hudson Institute’s Forum for Intellectual Property [and previous Copyhype contributor]. Hartline said there simply isn’t a right to repair in existing law, and that it is IP rights that ultimately protect the public good. ‘The right-to-repair movement isn’t based on a preexisting right; it’s instead asking lawmakers to create a new right at the expense of the existing rights of IP owners,’ Hartline explained.”

Friday’s Endnotes – 07/14/23

By , July 14, 2023.

Duct-taped bananas and copyright absurdity — Eleonora Rosati writes, “So, is the inherent blurriness, ambiguity or even absurdity of copyright’s foundational concepts a problem that needs to be rectified? I think not. For an exclusive IP right that regulates (and should stimulate) the production and dissemination of cultural objects and also serves as an instrument of technological governance, these very features have been both key and necessary to its survival and progressive evolution.”

The Art of Translation — The New York Times presents an interactive story from translator Sophie Hughes that walks the reader through the creative and intellectual exercise of translating prose. The process resembles authorship more than rote calculation; as Hughes observes, “Contrary to what I’d imagined, in my eagerness to be faithful to the original meaning above all else, translation didn’t turn out to be a subdued search for equivalence — for the closest possible ‘match’ for each word — but a playful pursuit of equilibrium across an entire work, an exhilarating and, yes, joyful balancing act of loyalties: to sense, to significance and to style.”

Senate IP Subcommittee Mulls Federal Right of Publicity at AI and Copyright Hearing — Steve Brachmann at IPWatchdog reports, “On July 12, the U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property held its second hearing in two months on the intersection of artificial intelligence (AI) developments and intellectual property rights. This most recent hearing focused on potential violations of copyright law by generative AI platforms, the impact of those platforms on human creators, and ways in which AI companies can implement technological solutions to protect copyright owners and consumers alike.”

Sarah Silverman is suing OpenAI and Meta for copyright infringement — “The suits alleges, among other things, that OpenAI’s ChatGPT and Meta’s LLaMA were trained on illegally-acquired datasets containing their works, which they say were acquired from ‘shadow library’ websites like Bibliotik, Library Genesis, Z-Library, and others, noting the books are ‘available in bulk via torrent systems.'”

Shein Named in Copyright, Racketeering Lawsuit Over Alleged Infringement Scheme — “According to the complaint that they filed in a California federal court on Tuesday, independent designers Krista Perry, Larissa Martinez, and Jay Baron claim that Shein and various related entities, including Roadget Business and Zoetop Business, (collectively, ‘Shein’) are on the hook for copyright and trademark infringement in connection with their practice of ‘produc[ing], distribut[ing], and selling exact copies of their creative works,’ which they allege is ‘part and parcel of Shein’s “design” process and organizational DNA.'”

Friday’s Endnotes – 07/07/23

By , July 07, 2023.

Two More Copyright Claims Board Cases Concluded — Jonathan Bailey has been closely watching the proceedings of the Copyright Claims Board, which recently entered its second year of operations. Here, Bailey reports on two more cases that have reached a resolution.

Amazon’s ebook charts are full of AI-generated spam — “This situation marks a real danger to the livelihoods of working authors. If the ebook market is flooded with spam, then it’s harder for readers to find real books. It’s already messing with Kindle’s genre categories, creating even more roadblocks for self-published writers to cultivate an audience.”

Generative AI in Games Will Create a Copyright Crisis — “Historically, claims of ownership to in-game creations or user-generated creations (IGCs or UGCs) have been rendered moot by ‘take it or leave it’ end-user license agreements—the dreaded EULAs that nobody reads. Generally, this means players surrender any ownership of their creations by switching on the game. (Minecraft is a rare exception here. Its EULA has long afforded players ownership of their IGCs, with relatively few community freakouts.) AI adds new complexities. Laws in both the US and the UK stipulate that, when it comes to copyright, only humans can claim authorship. So for a game like AI Dungeon, where the platform allows a player to, essentially, ‘write’ a narrative with the help of a chatbot, claims of ownership can get murky: Who owns the output? The company that developed the AI, or the user?”

Ninth Circuit agrees fight over Nirvana’s use of ‘Upper Hell’ belongs in UK — “According to Bundy’s 2021 lawsuit, the late Scott-Giles drew the illustration for the English translation of the first volume of the Dante’s trilogy, ‘Inferno,’ by his close friend Dorothy Sayers. The U.K. citizen sued after she discovered that Nirvana LLC, a company that handles the licensing and sale of Nirvana-branded merchandise, and Live Nation Merchandise were selling T-shirts, hoodies, key fobs, and mugs with the image.”

Jeff Koons, sculptor each claim advantage after Warhol copyright decision — “Koons told the court on Friday that his use of the bench as ‘raw material’ for ‘creative and communicative objectives entirely distinct from plaintiff’s utilitarian purpose of creating a platform for sexually explicit performances’ favored a fair-use finding. Hayden said the decision ‘shatters’ Koons’ defense because the purpose of his use of the sculpture was ‘exactly the same as Hayden’s original purpose: to serve as a creative set piece on which Ilona Staller would engage in sexually explicit poses and performances.'”

Friday’s Endnotes – 06/30/23

By , June 30, 2023.

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

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

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

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

« Older articles
Newer articles »