New York Disbars Infamous Copyright Troll

From Above the Law:

For years, Richard Liebowitz ran a very successful operation mostly sending threatening letters to companies claiming that they had infringed upon copyrights held by his photographer clients. Under the best of circumstances it’s a niche practice area that’s… kinda shady. But Liebowitz gained a degree of infamy across a number of matters for high-profile missteps in cases that sparked the ire of federal judges. Now, finally, New York has disbarred him.

Liebowitz wasn’t alone in the copyright trolling practice. A number of entities scour the internet looking for photographs that they can claim are “unlicensed” and demanding thousands of dollars to settle the matter knowing that between statutory damages for copyright infringement and the cost of litigation, most companies will just pay it. Many times, the photo in question actually is legally licensed through an agency like Getty Images, but the plaintiff photographer has, for whatever reason, pulled the image since the license was granted.

This runs the risk that some plaintiff might do this on purpose hoping to catch some legal licenseholder unawares and bank on the target just settling to avoid bringing any lawyers into the situation. Which is why, for example, a judge in one case cited by the disbarment opinion ordered Liebowitz “produce to the defendant records sufficient to show the royalty paid the last three times that the picture at issue was licensed, and the number of times the picture was licensed in the last five years; if the picture was never licensed, the plaintiff was to certify that fact as part of the plaintiff’s production.” In this case, Liebowitz “did not timely produce the required royalty information to the defendant” per the disbarment opinion.

Though most of the opinion describes more fundamental case management problems. From a case brought in 2017:

The respondent stated under penalty of perjury that he did not and had never made a settlement demand in this matter. In fact, the respondent had sent the defendant’s counsel an email in which the respondent proposed settling the matter for the sum of $25,000.

And another case brought in 2017:

On January 13, 2018, the respondent submitted a letter (hereinafter the January 13, 2018 letter) to the District Court, requesting an adjournment of the pretrial conference scheduled for January 19, 2018, and stating that the defendant “had yet to respond to the complaint” and that the plaintiff intended to file a motion for a default judgment. Judge Cote granted the request and ordered the motion for entry of default due on January 26, 2018.

The respondent’s statement in his January 13, 2018 letter that the defendant “had yet to respond to the complaint” was false and misleading, and the respondent knew that it was false and misleading when he made it. The January 13, 2018 letter failed to advise the court of the months-long history of communication between the parties, beginning in July 2017, as mentioned above.

. . . .

From yet another matter:

The plaintiff admitted in a deposition and in other documents that the Photograph had been previously published on numerous occasions. To prevent the defendants from learning that the plaintiff did not hold a valid registration, the respondent stonewalled the defendants’ requests for documents and information. The respondent also failed to comply with an order by Magistrate Judge Debra Freeman to obtain and produce Copyright Office documents to demonstrate a valid registration. After it came to light that the Photograph was not registered, and despite the record stating otherwise, the respondent argued, without evidence, that the lack of registration was merely a mistake.

If there’s a lesson to take away from these and the many, many more examples included in the opinion, it’s that copyright trolling outfits are largely unprepared for someone to push back on their demands. Firing off demand letters, memorializing boilerplate licensing agreements, and collecting cash is a tidy business model right up until a firm has to juggle hearings and discovery requests and experts and “not committing perjury.”

But perhaps the most bizarre story involves Liebowitz missing an April 12, 2019 hearing, explaining that his grandfather had passed. When Judge Seibel directed Liebowitz under penalty of contempt to furnish evidence or documentation regarding the date of his grandfather’s death, Liebowitz shot back that the order “likely constitutes a usurpation of judicial authority or a breach of judicial decorum.”

On November 7, 2019, the respondent retained counsel to represent him in the contempt proceedings, and on November 11, 2019, the respondent sent a letter to Judge Seibel admitting that he failed to carry out his responsibilities to the District Court and to his adversary. The respondent also admitted that his grandfather died on April 9, 2019, and was buried that same day.

Link to the rest at Above the Law

While most lawyers don’t engage in this sort of behavior, either because they regard it as intrinsically dishonest or worried they’ll get caught, as the OP demonstrates, somebody is going to call their bluff. That’s easier to do in places that are not so clogged with cases like New York, Chicago, etc.

In less massive and chaotic court systems where a lawyer is likely to encounter opposing counsel in another case sooner or later, the rule of living by the sword/dying by the sword comes into play as an effective deterrent to not being a jerk.

Does generative artificial intelligence infringe copyright?

From The Economist:

GENERATIVE ARTIFICIAL INTELLIGENCE (AI) will transform the workplace. The International Monetary Fund reckons that AI tools, which includes ones that produce text or images from written prompts, will eventually affect 40% of jobs. Goldman Sachs, a bank, says that the technology could replace 300m jobs worldwide. Sceptics say those estimates exaggerate. But some industries seem to be feeling the effects already. A paper published in August 2023 on SSRN, a repository for research which has yet to undergo formal peer review, suggests that the income of self-employed “creatives”—writers, illustrators and the like—has fallen since November 2022, when ChatGPT, a popular AI tool, was released.

Over the past year artists, authors and comedians have filed lawsuits against the tech companies behind AI tools, including OpenAI, Microsoft and Anthropic. The cases allege that, by using copyrighted material to train their AI models, tech firms have violated creators’ rights. Do those claims have merit?

AI generators translate written prompts—”draw a New York skyline in the style of Vincent van Gogh”, for example—into machine-readable commands. The models are trained on huge databases of text, images, audio or video. In many cases the tech firms appear to have scraped much of the material from the internet without permission. In 2022 David Holz, the founder of Midjourney, one of the most popular AI image generators, admitted that his tool had hoovered up 100m images without knowing where they came from or seeking permission from their owners.

Generators are supposed to make new output and on that basis AI developers argue that what their tools produce does not infringe copyright. They rely on the “fair-use doctrine”, which allows the use of copyrighted material in certain circumstances. This doctrine normally protects journalists, teachers, researchers and others when they use short excerpts of copyrighted material in their own work, for example in a book review. AI tools are not entitled to that protection, creatives believe, because they are in effect absorbing and rearranging copyrighted work rather than merely excerpting small pieces from it.

Generative AI is so new that there is almost no case law to guide courts. That makes the outcome of these cases hard to guess. Some observers reckon that many of the class-action suits against AI firms will probably fail. Andres Guadamuz, an expert in intellectual-property law at the University of Sussex, reckons that the strength of the fair-use doctrine is likely to trump claimants’ concerns.

One case will be particularly closely watched. On December 27th the New York Times sued Microsoft and OpenAI after negotiations failed. It alleges that the tech companies owe “billions of dollars” for using copyrighted work to train ChatGPT. The newspaper’s lawyers showed multiple examples of ChatGPT producing New York Times journalism word for word. This shows that AI tools do not substantially transform the material they’re trained on, and therefore are not protected by the fair-use doctrine, they claim.

On January 8th OpenAI responded, saying that it had done nothing wrong. Generative AI tools are pattern-matching technologies that write responses by predicting the likeliest next word based on what they have been trained on. As in other cases of this kind, OpenAI says that is covered by fair use. It claims that the New York Times overstates the risk of “regurgitation”, which it blames on a bug that produces errors only rarely. In a filing submitted on February 26th, OpenAI claimed that the New York Times cherry-picked answers from “tens of thousands” of queries it sent to the chatbot. Some of these were “deceptive prompts” that violated its terms of use, it alleged.

Link to the rest at The Economist

PG still thinks the use of materials protected by copyright to train AI systems qualifies as fair use. Those who use an AI system to create written material cannot, to the best of PG’s knowledge, call up an exact copy of a New York Times story.

PG is going to see if he can make his way through the various contentions, but he was immediately reminded of the Google Books case that was ultimately resolved in favor of Google in 2015.

The basis for the Google Books decision was the transformative nature of Google’s use of the content of the books to populate a huge online database with millions of books.

PG suggests that there is a much greater degree of transformation involved in AI usage of the texts involved in the New York Times’s Lawsuit Against Microsoft and OpenAI than there is in Google’s use of the text of 40 million books in 500 languages.

Protecting Your Work

From Booklife:

The recent suspensions of authors from Amazon’s Kindle Direct Publishing for “copyright infringement”’ provide a powerful lesson on the importance of protecting one’s work. During this year’s BookLife Indie Author Forum, I took part in a panel discussion devoted to copyright issues. Last year, I also facilitated a roundtable discussion by the Independent Book Publishers Association, during which we talked about the hot topic of KDP suspensions for copyright infringement.

Case in point: I have an author-publisher friend who had a book on Amazon since the CreateSpace days without incident. For years, this book had been in publication, and the author owned the copyright. Several months ago, the author received an email from KDP saying that the book included copyright or trademark infringement and that their entire account would be suspended. For a publisher, this is a major problem.

The author’s inquiries about the reason and requests for further documentation and resolution were ignored. He contacted KDP on a regular basis, and, because of his persistence, the account was magically restored, and the book is live again. Compared with some of the other horror stories I’ve heard, my friend should be happy.

Another author told me he spent over $20,000 in legal fees for two books after KDP suspended his account for “copyright infringement.” His requests for clarification were ignored, and no resolution has been provided. Is anyone safe?

If you’re anything like me, you might think that the solution is simply to use publishing sites such as IngramSpark (my favorite), Draft2Digital, or Kobo, which also distribute your title to Amazon. Wrong. One author used one of these providers and shared that Amazon said that the company would have to contact the publisher, which was him, and then the distributor. When he contacted the distributor, the distributor contacted Amazon, which responded that there were no problems with the book and that it was available for purchase. When the author checked, it was not. This problem has still not been resolved.

As problematic as this is, just imagine if you had multiple books. All of your titles can be suspended if your KDP account is frozen. What happens to your royalties during this time? And if you spent money on Amazon ads, you would be paying the same entity that is holding your royalties during the suspension. If you were to continue advertising, on or outside of Amazon, you could lose money indefinitely.

The terms and conditions say Amazon can terminate without cause and keep the royalties owed, including any sales of inventory on hand. The terms only permit dispute resolution through the American Arbitration Association. Ever call the American Arbitration Association? One person was quoted an arbitration fee of $1,725 plus legal fees and an estimate of five to 10 months for resolution. Ouch! This amount is cheaper than the $20,000 I quoted earlier, but many authors cannot afford $1,725 in legal fees.

Here are some of the things that can get your KDP account suspended: using two different ISBNs for the same book format—i.e., one ISBN on IngramSpark and one on KDP (but using separate ISBNs for the paperback, hardcover, and e-book versions is fine); rights reverting to you from a previous publisher but have not been cleared by KDP; having a metadata change that implies a change in rights ownership; changing your imprint name (If you use a publishing provider such as IngramSpark, you can add an imprint name to your dashboard. This means that you need to check which one you use for each book you publish to avoid it defaulting to the wrong one); someone reports you for copyright infringement (even if the claim is not valid); or a bot error that is beyond an author’s control.

What can you do once your account is suspended? The answer varies depending on what triggered your suspension, which, according to some of those affected, is hard to get a clear answer from Amazon about. Here are a few things you can provide:

1. A screenshot of your ISBN account showing your name as owner and the imprint name with your book’s ISBN displayed

2. Approved copyright documentation from copyright.gov, not just the application (which can take up to eight months to receive)

3. Invoices and bank statements for editing costs from both your end as the publisher and from the editor’s end

4. Similar invoices and statements for cover design

Link to the rest at Booklife

Don’t give AI free access to work denied to humans, argues a legal scholar

From The Economist:

More than six years ago I published an analysis arguing that training generative ai on copyrighted works could break American law. Since then many others have suggested the same. The issue has already boiled over in Britain, where this month talks between the ai industry and creative organisations over a new code of practice broke down. Now, lawsuits by artists, writers and the New York Times are testing our theory against defendants such as Openai, Meta and Stability ai.

The ai industry’s defence rests on “fair use”, a doctrine that permits the use of copyrighted material without its owner’s permission in certain circumstances. If this argument prevails, the industry will receive carte blanche to exploit copyrighted works without compensating authors—all while the law continues to stifle humans’ access to those works. ai will “learn” from pirated textbooks free of charge, while students pay extravagant prices. How perverse.

The purpose of copyright is to stimulate creativity and thereby encourage the creation of more expressive works for the public good, not just to promote a particular technology. Yet, curiously, many “free culture” activists support the ai companies. These activists’ worldview crystallised around the early 2000s, when copyright protections expanded and record labels pursued exorbitant judgments against people who shared music online. In response to this grab by major rights-holders, the copyright decelerationists, as I call them, vowed to halt copyright’s expansion.

I believe that the decelerationists’ premise remains as correct today as it was then: ever-stronger copyright protection has withheld incalculable amounts of culture from the public domain. But we won’t repair that damage with exceptions tailor-made to benefit the giants of ai. A better strategy is to enforce copyright just as harshly on ai learners as we enforce it on humans. This may seem paradoxical, but I believe it will highlight the law’s disregard for learning and could ultimately lead to copyright regulation being relaxed for humans. Thus, we should become copyright accelerationists.

Accelerationism can be used as a tactic to destabilise: Karl Marx delivered an accelerationist call-to-arms when he endorsed free trade, believing it would heighten capitalism’s contradictions and hasten the social revolution. In the context of copyright, accelerationism aims to upend the legal rules that hinder ordinary people from engaging with creative works. For example, there are millions of in-copyright works with no identifiable owner. But because using these “orphan works” remains legally risky, libraries, archives and people who want to use them for their own creative ends hesitate to touch them.

. . . .

This cultural tragedy is the result of a dramatic expansion of copyright’s reach over the past 50 years. Copyright’s term was lengthened, keeping creative works out of the public domain long after their creators had earned a fair return and stifling new generations. “Steamboat Willie”, Mickey Mouse’s 1928 debut, did not enter the public domain until January 1st this year because rights-holders had successfully lobbied for a 20-year copyright extension without any rational economic justification. America’s Congress abolished “formalities”—requirements that authors register and renew their copyrights and place notices in published works, or risk forfeiting those copyrights. Courts chipped away at the required level of creativity for copyright to be established.

These changes had predictable consequences: innumerable works were withheld from the public and a small group of rights-holders was enriched. But technological changes triggered unanticipated consequences. Each of us now accumulates dozens of copyrights every day. Thanks to rock-bottom originality requirements and the elimination of formalities, all but our most mindless emails, text messages and photos automatically count as intellectual property until 70 years after we die. Nearly all valuable ai training data is owned by someone and will be for decades. These legal rules, long the enemy of free culture, are now the enemy of powerful technology companies, too.

The ai industry claims training ai on copyrighted works is excused by the fair-use doctrine because rights-holders cannot prevent others from copying their works to learn from them. But that argument would fail if made by a human. Could you imagine a file-sharing defendant arguing that downloading a Beatles album was fair use because she wanted to learn the Lennon-McCartney songwriting style? She would be laughed out of court, even if she wrote nothing that resembled a Beatles tune.

The decelerationists and I agree that copyright’s routine thwarting of human learning and creativity is tragic. But carrying the ai industry’s water won’t repair that tragedy. Decelerationists must realise that even if the industry wins, all the cases denying fair use for activities like artistic pastiche, fan fiction and the publication of personal letters in a biography will remain binding precedents (for humans, that is).

Link to the rest at The Economist

Cox Communications wins order overturning $1 billion US copyright verdict

From Reuters:

Cox Communications, the cable television and internet service provider, convinced a U.S. appeals court to throw out a $1 billion jury verdict in favor of several major record labels that had accused it of failing to curb user piracy, setting the stage for a new trial on the matter.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled on Tuesday that the amount of damages was not justified and that a federal district court should hold a new trial to determine the appropriate amount.

. . . .

A Virginia jury in 2019 found Cox, the largest unit of privately-owned Cox Enterprises, liable for its customers’ violations of over 10,000 copyrights belonging to labels including Sony Music Entertainment, Warner Music Group and Universal Music Group.

. . . .

A spokesperson for Cox said that the company was pleased with the decision to set aside the verdict but disagreed with the ruling that it still infringed.

“Providing homes and businesses with the broadband service that so many depend on in their daily lives should not be a violation of copyright law,” the spokesperson said.

. . . .

More than 50 labels teamed up to sue Cox in 2018, in what was seen as a test of the obligations of internet service providers (ISPs) to thwart piracy.

The labels accused Cox of failing to address thousands of infringement notices, cut off access for repeat infringers, or take reasonable measures to deter pirates.

Atlanta-based Cox had told the 4th Circuit that upholding the verdict would force ISPs to boot households or businesses based on “isolated and potentially inaccurate allegations,” or require intrusive oversight of customers’ internet usage.

Link to the rest at Reuters

PG hasn’t read more than the summary of the case as reported by Reuters, but is surprised there was no mention of The Digital Millenium Copyright Act in the OP.

He’ll be doing a bit of poking about to determine how the DMCA worked or didn’t work for Cox.

Judge rejects most ChatGPT copyright claims from book authors

From Ars Technica:

A US district judge in California has largely sided with OpenAI, dismissing the majority of claims raised by authors alleging that large language models powering ChatGPT were illegally trained on pirated copies of their books without their permission.

By allegedly repackaging original works as ChatGPT outputs, authors alleged, OpenAI’s most popular chatbot was just a high-tech “grift” that seemingly violated copyright laws, as well as state laws preventing unfair business practices and unjust enrichment.

According to judge Araceli Martínez-Olguín, authors behind three separate lawsuits—including Sarah Silverman, Michael Chabon, and Paul Tremblay—have failed to provide evidence supporting any of their claims except for direct copyright infringement.

OpenAI had argued as much in their promptly filed motion to dismiss these cases last August. At that time, OpenAI said that it expected to beat the direct infringement claim at a “later stage” of the proceedings.

Among copyright claims tossed by Martínez-Olguín were accusations of vicarious copyright infringement. Perhaps most significantly, Martínez-Olguín agreed with OpenAI that the authors’ allegation that “every” ChatGPT output “is an infringing derivative work” is “insufficient” to allege vicarious infringement, which requires evidence that ChatGPT outputs are “substantially similar” or “similar at all” to authors’ books.

“Plaintiffs here have not alleged that the ChatGPT outputs contain direct copies of the copyrighted books,” Martínez-Olguín wrote. “Because they fail to allege direct copying, they must show a substantial similarity between the outputs and the copyrighted materials.”

Authors also failed to convince Martínez-Olguín that OpenAI violated the Digital Millennium Copyright Act (DMCA) by allegedly removing copyright management information (CMI)—such as author names, titles of works, and terms and conditions for use of the work—from training data.

This claim failed because authors cited “no facts” that OpenAI intentionally removed the CMI or built the training process to omit CMI, Martínez-Olguín wrote. Further, the authors cited examples of ChatGPT referencing their names, which would seem to suggest that some CMI remains in the training data.

Arguing that OpenAI caused economic injury by unfairly repurposing authors’ works, even if authors could show evidence of a DMCA violation, authors could only speculate about what injury was caused, the judge said.

. . . .

The only claim under California’s unfair competition law that was allowed to proceed alleged that OpenAI used copyrighted works to train ChatGPT without authors’ permission. Because the state law broadly defines what’s considered “unfair,” Martínez-Olguín said that it’s possible that OpenAI’s use of the training data “may constitute an unfair practice.”

Remaining claims of negligence and unjust enrichment failed, Martínez-Olguín wrote, because authors only alleged intentional acts and did not explain how OpenAI “received and unjustly retained a benefit” from training ChatGPT on their works.

Authors have been ordered to consolidate their complaints and have until March 13 to amend arguments and continue pursuing any of the dismissed claims.

To shore up the tossed copyright claims, authors would likely need to provide examples of ChatGPT outputs that are similar to their works, as well as evidence of OpenAI intentionally removing CMI to “induce, enable, facilitate, or conceal infringement,” Martínez-Olguín wrote.

. . . .

As authors likely prepare to continue fighting OpenAI, the US Copyright Office has been fielding public input before releasing guidance that could one day help rights holders pursue legal claims and may eventually require works to be licensed from copyright owners for use as training materials. Among the thorniest questions is whether AI tools like ChatGPT should be considered authors when spouting outputs included in creative works.

While the Copyright Office prepares to release three reports this year “revealing its position on copyright law in relation to AI,” according to The New York Times, OpenAI recently made it clear that it does not plan to stop referencing copyrighted works in its training data. Last month, OpenAI said it would be “impossible” to train AI models without copyrighted materials, because “copyright today covers virtually every sort of human expression—including blogposts, photographs, forum posts, scraps of software code, and government documents.”

According to OpenAI, it doesn’t just need old copyrighted materials; it needs current copyright materials to ensure that chatbot and other AI tools’ outputs “meet the needs of today’s citizens.”

Link to the rest at Ars Technica

AI Companies Take Hit as Judge Says Artists Have ‘Public Interest’ In Pursuing Lawsuits

From Art News:

Artists have secured a small but meaningful win in their lawsuit against generative artificial intelligence art generators in what’s considered the leading case over the uncompensated and unauthorized use of billions of images downloaded from the internet to train AI systems. A federal judge refused to acknowledge that the companies can avail themselves of free speech protections and stated that the case is in the public interest.

U.S. District Judge William Orrick, in an order issued last week, rebuffed arguments from StabilityAI and Midjourney that they are entitled to a First Amendment defense arising under a California statute allowing for the early dismissal of claims intended to chill free speech. They had argued that the suit targets their “speech” because the creation of art reflecting new ideas and concepts — like those conveyed in text prompts to elicit hyper-realistic graphics — is constitutionally protected activity.

The suit, filed last year in California federal court, targets Stability’s Stable Diffusion, which is incorporated into the company’s AI image generator DreamStudio and allegedly powers DeviantArt’s DreamUp and Midjourney.

In October, the court largely granted AI art generators’ move to dismiss the suit while allowing some key claims to move forward. It declined to advance copyright infringement, right of publicity, unfair competition and breach of contract claims against DeviantArt and Midjourney, concluding the allegations are “defective in numerous respects.” Though a claim for right of publicity was not reasserted when the suit was refiled, DeviantArt moved for its motion to strike the claim for good to be decided so it could recover attorney fees and resolve the issue, which could impact other cases in which AI companies assert First Amendment protections. Artists, in response, cried foul play. They stressed that the companies are abusing California’s anti-SLAPP law and attempting to “strongarm and intimidate [them] into submission.”

The right of publicity claim concerned whether AI art generators can use artists’ names or styles to promote their products. The suit argued that allowing the companies to continue doing so cuts into the market for their original works.

Orrick sided with artists on the issue of whether the companies can dismiss the claim under the state’s anti-SLAPP statute, finding that the “public interest exemption is met here.” He noted that the claim was initially dismissed because the suit failed to substantiate allegations that the companies used the names of Sarah Andersen, Kelly McKernan or Karla Ortiz — the artists who brought the complaint — to advertise their products.

“Had plaintiffs been able to allege those facts, they would have stated their claims,” the order stated. “That does not undermine that their original right of publicity claims were based on the use of their names in connection with the sale or promotion of DreamUp, a type of claim that would undoubtedly enforce California’s public policy to protect against misappropriation of names and likenesses.”

Lawyers for the artists have reserved the right to reassert their right of publicity claim pending discovery.

Though the court in October dismissed most of the suit, a claim for direct infringement against Stability AI was allowed to proceed based on allegations that the company used copyrighted images without permission to create its AI model Stable Diffusion. One of its main defenses revolves around arguments that training its chatbot does not include wholesale copying of works but rather involves developing parameters — like lines, colors, shades and other attributes associated with subjects and concepts — from those works that collectively define what things look like. The issue, which may decide the case, remains contested.

Link to the rest at Art News

Who Owns This Sentence?

From The Wall Street Journal:

Every three months, the Performing Rights Society of Britain sends me royalties on “Caught Steelin’,” a country-funk instrumental I co-wrote and recorded 20 years ago. Whenever it appears on the soundtrack of, say, a daytime TV show about antiques, I receive about 12.5% of the royalty pie. I receive thinner slices from sales of the books I have written; the typical royalty on paperbacks is 8%. When the painter Walter Sickert defined genius as the “instinct of self-preservation in a talent,” what he might have meant was: Always keep your copyrights, for some day they may keep you.

Copyright law began in London in 1710, with the Act for the Encouragement of Learning (known, after the queen of the day, as the “Statute of Anne”). This fixed into law an ancient moral principle: Plato was outraged when a student named Hermodorus published his lecture notes in Sicily without permission—perhaps history’s first bootleg recording. Pliny the Elder compared unattributed copying to theft (“plagiarism” comes from a Latin word for “kidnapping”). This moral sense endures in university honor codes; former Harvard president Claudine Gay, see me after class.

Authors of books still claim the “moral right” to be named as the perpetrator of the work. But the creator is also often the little guy, deprived of his moral right by legal maneuvers. Richard Berry, who wrote the much-covered R&B hit “Louie Louie” in 1955, once told me that he saw no royalties until he lawyered up in the 1980s.

In “Who Owns This Sentence?” David Bellos and Alexandre Montagu explain how copyright became an invisible economic architecture that governs not just vital matters such as royalties, but also ephemera such as commercial trademarks and medical patents. Mr. Bellos is a professor of French and comparative literature at Princeton, and Mr. Montagu is the founder of an intellectual-property law firm in London. They ask whether the invisible hand has now bent the little guy’s arm so far back that copyright has changed from a means to incentivize creativity to an “engine of inequality.”

Before 1710, British printing had been regulated by the Licensing of the Press Act (1662). The act granted a print monopoly to the Stationers’ Co. The Stationers bought the rights to authors’ work (the “buy-out,” as it’s known) took all the profits; it was also effectively the censor on behalf of the state. The 1662 law expired in 1695, and 15 years of debate and lobbying began. John Locke called it “absurd” that the work of Julius Caesar or Livy could be copyrighted. The printers protested a “notorious invasion of the property of the rightful proprietors.” In 1710, Parliament proposed a compromise. The printers retained “right of copy” (the right to print and sell) for 21 years. The authors, or their assignees, retained ownership of the contents. The book business was born.

In 1774, a new law affirmed that publishers only had limited rights to dead authors’ work, after which it entered the public domain. The printers were still in charge, and authors had yet to receive royalties, but competition now gave the public more and cheaper books. Then as now, publishers gambled on living writers, but found the dead more dependable earners.

Meanwhile, copyright began to be applied to other media. In 1735, Parliament approved a petition from William Hogarth and his club, the Sublime Society of Beefsteaks, that engravings should be considered printed matter. In 1777, the publisher Longman was caught stealing the sonatas of Johann Christian Bach, the youngest son of Johann Sebastian. Lord Mansfield, bless him, ruled that music was one of the “other writings” covered by the Statute of Anne. These precedents would shape American and global jurisprudence as copyright spread around the world.

While the British argued over commercial rights, the French discovered that copyright, like the rights of man, was inalienable. Denis Diderot argued in 1761 that a book expressed the “spirit of the man of letters.” In 1777, a French law granted authors lifetime rights of property in their works. The philosopher and mathematician Nicolas de Condorcet, notably, rejected the claim that copyright encouraged “learning,” and asked why he could freely print a “general theory of mechanics” but would be breaking the law if he reprinted a “pretty poem” without permission.

The treatment of copyrights and practical intellectual property, such as patents, remains unequal. “Why should Donald Duck belong exclusively to Disney for nearly a century,” the authors ask, “but a miracle cure belong to the company that created it for twenty years at most?” Copyright law is a jerry-built skyscraper. Condorcet died late enough to benefit from the French law of 1793, which extended his exclusive rights 10 years after his death. The American copyright law of 1790, by contrast, was closer to the British law: 28 years from publication, plus another 14 if you were still alive, but nothing posthumously for your heirs.

. . . .

In any case, the American law had, the authors write, “minimal effect.” Piracy of imported literature was the norm in the United States throughout the 19th century. That changed because of a dispute over a staple of the American printing industry, circus posters. When the Wallace Circus ordered nearly identical promotional posters from the rival printing firms of Bleistein and Donaldson, Bleistein sued Donaldson for infringement. In 1903, the Supreme Court ruled in favor of Bleistein. The real loser was the unknown artist who created the posters for the Wallace Circus and was paid $100.

“The word author,” the U.S. Copyright Reform Act of 1909 confirmed, “shall include an employer in case of works made for hire.” Messrs. Bellos and Montagu call this definition of employer as author an “offence to common sense.” The author and employer are supposed to be different parties to the transaction, they insist. They argue that the 1909 act discreetly restored the “feudal” pre-1710 system of buy-outs by giving employer-owners an incentive to buy up and exploit authors’ rights (soon to be known as intellectual property, or IP”).

Thanks to Johann Christian Bach’s precedent, the Summy Co. and Warner/Chappell Music raked in around $2 million between 1949 and 2016 from the rights to “Happy Birthday to You.” In 1996, the American Society of Composers, Authors and Publishers even tried to shake down the Girl Scouts for singing “God Bless America” around the campfire. By then, the United States had turned from pirate to international IP policeman, pushing the expansion of copyright across the world.

Fifty years ago, the authors write, the value of cross-border copyright licensing was less than a billion dollars. By 2021, it was $508 billion. The wealth of 16 of the world’s 50 richest people, they claim, derives “in whole or part from copyright industries.” While copyright law has spread across the globe, copyright ownership has centralized. The capital valuations of Microsoft, Apple, Alphabet, Amazon, Meta and Disney are, the authors write, “almost entirely constituted” by the ownership and sale of copyright material. The income of musicians and writers, meanwhile, has declined.

To the authors, it is as if intellectual property were back in the hands of a “small cartel of wealthy printers.” As copyright spreads, the “tax on reading” once paid by 17th-century Londoners has become a global levy on everything from phone apps to Mickey Mouse plushies. They estimate that the U.S., heartland of an “empire of I.P.,” extracts a “net tribute” of $80 billion from the rest of the world. “There is probably no way of computing,” the authors assert, “what share of your expenditure trickles upwards through retailers and distributors and manufacturers to the ultimate owner of the almost everlasting rent-generating monopolies.”

. . . .

Immanuel Kant thought writing could no more be owned than a “puff of hot air,” but the philosophers at the Walt Disney Co. proved otherwise. The initial copyright on Mickey Mouse was set to expire in 1984 until Disney’s lobbying secured a 20-year extension in the Copyright Act of 1976. Disney obtained a further extension in the Sonny Bono Copyright Term Extension Act of 1998. Though Mickey’s earliest incarnations entered the public domain on Jan. 1, his earning potential is regularly refreshed by tweaks to his design.

Link to the rest at The Wall Street Journal

When Louis Vuitton tries to make you change your brand name

From The BBC:

A small garden supply business called L V Bespoke recently won its fight to keep its name against the French luxury fashion house Louis Vuitton. Experts say such cases have increased “hugely” in the past 18 months as major brands seek to protect their intellectual property. But what actually happens when a multi-national firm comes knocking at your door?

Before the Covid-19 pandemic, Victoria Osborne ran a holiday letting business and her husband Lawrence worked in construction.

“When the pandemic arrived, both of our incomes were wiped out literally overnight,” says Mrs Osborne.

Amid what she describes as a “mad panic” the couple, who were renovating their home in Reepham, near Norwich, focused on their garden and began growing their own food while former boat builder Mr Osborne tried his hand at making metal plant supports.

The supports turned out well. So well, in fact, the couple wondered if others would be willing to pay for them. They were.

The business grew from selling the supports on Gumtree and at car boot sales to being featured by the Royal Horticultural Society.

The couple had named the business using their own first initials, and L V Bespoke was born.

The trademark was sent off to the Intellectual Property Office (IPO), which receives more than 150,000 registration requests each year, in December 2021. An examiner carried out initial checks and no issues were raised.

But when the application to register the L V Bespoke trademark was made public, Louis Vuitton Malletier objected in March 2022 via lawyers in London claiming the trademark impinged on its intellectual property.

“We were very shocked and surprised,” says Mrs Osborne. “We thought it was a practical joke by one of our friends.

“It was just ludicrous to think they had the rights to the letters “L” and “V” and there was no comparison to be made between our goods and theirs.”

They sought legal advice almost immediately and decided to stick to their guns.

IPO Tribunal Judge Matthew Williams found in the couple’s favour, deciding Louis Vuitton’s opposition had failed “on all grounds”.

Although Louis Vuitton has not responded to the BBC’s requests for comment on the case, Jamie Muir Wood, who represented the firm during the tribunal told the hearing that Louis Vuitton’s trademark contained the letters “L” and “V” and that it was understood those letters “stand for Louis Vuitton”.

He said the Osborne’s logo “contains the same two letters, in the same order, followed by the word ‘bespoke'”. It also contains some slight figurative decoration.

“Conceptually, we say that there is essentially identity or very high similarity because both signs refer to a brand LV,” he told the hearing.

Melanie Harvey, a legal director at Birketts LLP and a chartered trade mark attorney, says the Osbornes’ case is far from unique.

She says in the past 18 months there has been a “huge” rise big firms seeking to protect their trademarks. She says clothing businesses, champagne makers and high end brands were particularly busy protecting their identities at the moment.

Link to the rest at The BBC and thanks to C. for the tip.

PG was disappointed that the judge didn’t order LV to pay all of the defendant’s legal bills. Awarding attorney’s fees to the winner in a civil lawsuit helps to discourage foolish and overreaching suits, particularly against defendants who are not particularly wealthy.

A new book looks at the past and future of copyright

From The Economist:

If Walt Disney were still alive, he would be dismayed at the new film role given to his signature character, Mickey Mouse, as a slasher hunting teenagers in an old arcade. The trailer for “Mickey’s Mouse Trap” was released on January 1st. That is the day the copyright of “Steamboat Willie”, the short film that introduced Mickey Mouse’s character in 1928, expired. This early version of Mickey is now in the public domain.

Even before the arrival of a murderous mouse, the field of copyright has been full of dramatic turns, as a new book, “Who Owns This Sentence?, recounts. That is because “copyright is an edifice of words resting on a long and complicated string of metaphors and double meanings,” write the authors David Bellos, a professor at Princeton, and Alexandre Montagu, a lawyer. Over centuries artists, authors, lobbyists, publishers and public officials have defined and redefined the meaning of copyright, with debate and legal changes happening beyond the public eye.

Initially an author’s right to their creative output was a question of honour. Hermodorus, a student of Plato, published notes he took from Plato’s lectures without permission, which incensed the philosopher. Privileges, a precursor to copyright, emerged in the 15th century in Venice, where authorities gave skilled craftsmen a seven-year monopoly over luxury goods they produced. Among those who profited from Venice’s system was Johannes of Speyer, an apprentice of Johannes Gutenberg, maker of the printing press.

Authors and artists did not always benefit. Powerful publishing syndicates treated books like property and profited from selling the works of Chaucer, Milton, Shakespeare and others. Britain’s Statute of Anne, the first copyright law regulated by government and the courts instead of private parties, came into effect in 1710 and gave authors rights to their works for a limited time (though booksellers and publishers could buy the books before the copyright expired and claim to own the rights perpetually). But it was a decision by the House of Lords in 1774, reasserting term limits for copyrighted works, that fully established copyright in Britain and served as the beginning of modern copyright law in the West.

Mr Bellos and Mr Montagu argue that copyright has gone from a right that favours creators to something more akin to a privilege for the rich and powerful. Two major legal developments led to this. First, in the early 1900s a skirmish over printing posters for a travelling circus redefined the meaning of authorship to include employers of artists. In other words, companies could own copyrights. Second, in 1976 the meaning of literary works was adjusted so that computer software was included.

Intellectual property is now among America’s chief exports. About a third of the 50 richest people in the world derive their fortunes—in whole or in part—from copyrighted goods. Some creators have benefited handsomely (Bruce Springsteen, for example, sold his music catalogue to Sony for a reported $550m in 2021). But many have not. “Copyright is the elephant in the room when it comes to understanding the origins of the wealth gap in modern societies,” the authors write.

Today the newest frontier of copyright is generative ai, which allows people to create images, prose and sounds based on prompts. Artists have called ai “vampirical” because it scrapes pre-existing content for training.

Some writers and artists, such as Sarah Andersen, a cartoonist, have taken ai giants to court over copyright infringement. “We’re not necessarily fighting for ai to go away, but if our work is going to be involved in these systems, we would like to be credited,” Ms Andersen says. She also argues that artists should be compensated and be able to opt out of having their work used to train ai models.

Publishers are in legal tussles, too, including the New York Times, which in December sued Openai (the maker of Chatgpt) and Microsoft for copyright infringement, after talks between the news publisher and tech companies failed. Others are more optimistic. Some news groups, including the Associated Press, have signed deals to share story archives with Openai.

Link to the rest at The Economist

As PG has mentioned on at least two occasions, he believes that feeding images and text into a database that is used to teach an AI is not copyright infringement, at least under US law.

As he understands it, the AI is not capable of creating a copy of a Nora Roberts book even if the words in a Norah Roberts book were used, along with millions of other books, to write new creations that do not include any sentences or paragraphs in any Norah Roberts book or a book/article, etc., by any other author.

The resulting AI cannot create a work identical or substantially identical to a Norah Roberts book. If AI’s creator admits to including the text of a Norah Roberts book along with the text of a zillion other books, how, exactly is Norah Roberts harmed if the AI is incapable of replicating any substantial amount of a book Ms. Roberts has written?

Nobody owns the copyright for, “I love you” or “I hate you,” or anything similar even if an author has included these terms in a million copyright-protected books.

Over one million “manipulated” tracks found on streaming platforms

From NME.com:

A new study has found there are over one million “manipulated” tracks on streaming platforms.

Pex is a tech company that tracks and analyses copyrighted content on digital services. According to their data from November 2023, there are over one million tracks that have been sped-up, slowed-down or otherwise “modified” in places like Spotify, Apple Music and TIDAL. Examples include a sped-up version of Lady Gaga‘s ‘Bloody Mary‘ (25 million streams) and Childish Gambino’s ‘Heartbeat‘ (19 million streams).

These “manipulated” tracks usually do not have legal licensing to be used, meaning they are infringing on copyright. The original artists therefore do not collect royalties on the song’s streams.

In a new interview with Music Business World, Pex CEO Rasty Turek said “there is [a] huge following of people trying to essentially enjoy content like this. Nightcore mixes, and so on. And I do think that there is a legitimate seed to the movement. If people enjoy this kind of music, they should absolutely have access to it.

“But at the same time, proper attribution should be required,” he continued. “And this is much more up to the platforms and services than it is up to the artist to essentially go and fish out.”

Spotify has been trying to combat the large number of songs being uploaded on their platform, along with shifting royalty allocation. It was revealed this month that around a quarter of music on streaming services didn’t get played at all.

That followed the news of Spotify’s policy change, which would require all songs on the platform to have a minimum of 1,000 streams before they can earn any royalties.

Link to the rest at NME.com

OpenAI’s admission it needs copyright material is a gift to the publishing industry

From The New Publishing Standard:

The Writers Union of Canada is among the latest to, rightly, calls for legislation to regulate the excesses of AI companies as this sector evolves.

But as with so many of these calls for legislation, we need to be clear whether these are reasoned arguments looking to harness AI’s potential to benefit the long-term interests of the publishing industry, or knee-jerk reactions pandering to member’s short-term interests with meaningless soundbites.

In the US we’ve seen the Writers Guild embrace AI as a force for good, fully accepting the AI genie will never go back in the bottle, and so looking for the best ways to work with AI companies to benefit Writers Guild members.

“We have to be proactive because generative AI is here to stay,” said Mary Rasenberger, Authors Guild CEO, explaining, “They need high-quality books. Our position is that there’s nothing wrong with the tech, but it has to be legal and licensed.“

SAG-AFTRA, the US actors union, has taken the same approach.

Proactive rather than endlessly reactive.

While at the other end of the spectrum the outgoing head of the UK’s Society of Authors, Nicola Solomon, is peddling nonsense about how 43% of writers jobs will be devoured by the AI bogeyman.

The Writers Union of Canada has tried to find a mid-way path, and acknowledges AI can bring benefits to writers, but cannot help but seize on statement by OpenAI’s CEO Sam Altman saying that AI needs to use copyrighted material as some kind of admission the company is stealing writers’ IPs.

Given the current legal interpretation of what constitutes fair use, that assertion may or may not have legs, but for the AI opponents such details are neither here nor there. As and when the law on fair use is clarified one way or the other, then we can fling mud.

Similarly, demanding creators be paid for their efforts is right, but suggesting this is not happening is wrong.

The fact that Altman and his company have, since at least May 1923 at the White House AI summit, been talking about ways to pay for the use of copyrighted material, and since mid-summer have been signing deals with content-producers to do just that (American Journalism Project, Associated Press in July 2024, Axel-Springer in December), is being conveniently ignored.

Bloomberg last week reported that Thomson Reuters is looking to sign a deal with AI companies.

Tom Rubin, OpenAI’s chief of intellectual property and content, told Bloomberg News: “We are in the middle of many negotiations and discussions with many publishers. They are active. They are very positive. They’re progressing well. You’ve seen deals announced, and there will be more in the future.”

So these opponents of AI are missing opportunities to do deals that will favour creatives, for the sake of a sound-tough soundbite.

And in this context, we should be clear that the New York Times law suit against OpenAI is happening because negotiations with OpenAI failed, not because OpenAI was unwilling to pay.

In any case, Altman has made clear OpenAI can manage just fine without NYT data if necessary.

We are open to training [AI] on The New York Times, but it’s not our priority. We actually don’t need to train on their data. “I think this is something that people don’t understand. Any one particular training source, it doesn’t move the needle for us that much.”

But this is not the only flaw in the Canada Writers Union case. The CWU has also gone down the “humans-only” road with its interpretation of copyright law.

Copyright is an exclusive right of human creators. Existing copyright legislation protects human creativity and originality, by virtue of requiring the exercise of skill and judgment to obtain copyright in a work. This should not be changed to grant copyright protection to AI generated products or to allow copyrighted works to train models without permission.

And again we have the juggling act with different issues mixed into a pot and violently stirred for the sake of a sound-tough soundbite.

No-one is asking for copyright law “be changed to allow copyrighted works to train models without permission.

And the other part of the soundbite – The law “should not be changed to grant copyright protection to AI generated products” – falls into the other classic Luddite’s Weekly trap.

On the one hand they are claiming, and Altman himself agrees, that AI cannot do its work without copyrighted material, which as of now is defined as human-produced. And at the same time they are claiming copyright “is an exclusive right of human creators.”

Link to the rest at The New Publishing Standard

Who is going to receive the cash if a large publisher signs a license to utilize their books, magazine articles, photographs, etc.?

PG can’t speak for magazines and photographic publications, but, at least for ebooks, the authors are licensing their rights to publishers, not selling those rights. Arguably, under a standard trade publishing agreement, the author hasn’t given her/his publisher the right to use their books as grist for an AI mill. The traditional publisher typically has the right to print, publish, and sell the author’s works.

Granting permission for the author’s books to be utilized as fuel for an AI is something that was not foreseen when the author signed a publishing agreement. It is common for a publishing agreement that reserve rights not granted to the publisher for the author’s use so long as the exercise of those rights doesn’t interfere with the publisher printing, publishing, and selling the manuscript as a book of some sort or another.

Another issue that a great many large publishers will likely have is publishing agreements that were written and signed long before the internet, digital publishing, or anything except print, publish in a printed serial form, licensing as a Book-of-the-Month edition, etc.

And, of course, does the author’s literary agent get 15%?

New Nonprofit Launches to ‘Certify’ Copyright-Friendly AI Practices

From Publishers Weekly:

The Association of American Publishers is among those supporting a newly launched effort called Fairly Trained, a nonprofit organization that aims to “certify fair training data use” in generative AI.

“There is a divide emerging between two types of generative AI companies: those who get the consent of training data providers, and those who don’t, claiming they have no legal obligation to do so. We believe there are many consumers and companies who would prefer to work with generative AI companies who train on data provided with the consent of its creators,” a blog post on the group’s website states. “Fairly Trained exists to make it clear which companies take a more consent-based approach to training and are therefore treating creators more fairly.”

The nonprofit’s first certification is something it calls “Licensed Model certification,” which, the post explains, can be obtained for “any generative AI model that doesn’t use any copyrighted work without a license.” The licenses can be varied, the group says, but “will not be awarded to models that rely on a ‘fair use’ copyright exception or similar, which is an indicator that rights-holders haven’t given consent for their work to be used in training.”

The launch of Fairly Trained comes amid a spate of lawsuits filed by creators against AI companies—most notably Open AI and Meta—alleging that the major AI companies’ use of copyrighted works without permission or payment for AI training constitutes infringement. It also comes as a number of other organizations, including such media giants as the Associated Press and Axel Springer, have struck licensing deals with AI companies, with others, such as Reuters, reportedly involved in talks over the same.

Fairly Trained is launching with nine generative AI companies already certified, according to the post: Beatoven.AI, Boomy, BRIA AI, Endel, LifeScore, Rightsify, Somms.ai, Soundful, and Tuney. The group is led by “composer and technologist” Ed Newtwon-Rex, founder of jukedeck, “an AI music generation company that provided music for video, TV, radio, podcasts, and games.” According to his bio on the Fairly Trained site, jukedeck was acquired by TikTok owner ByteDance in 2019, and Newton-Rex “ran the European AI Lab and later led product in Europe for TikTok,” and most recently served as v-p of audio at Stability AI.

Link to the rest at Publishers Weekly

Color PG skeptical that anyone is going to pay much attention to Fairly Trained.

The trade mark adventures of Lara Croft

From The IPKat:

The protection of fictional characters presents various challenges. Their external appearance can be protected by copyright, design, trade mark or unfair competition law, though there are limits. An obvious one is the duration of most IP rights. The US copyright for Winnie the Pooh expired in 2021 and it will expire for the original (‘Steamboat Willie’) Mickey Mouse in 2024. Fortunately, there is no limitation on trade mark renewals. Figurative and three-dimensional trade marks for a character can prove to be an effective tool to prevent third parties from exploiting the reputation of the character’s appearance acquired during the term of copyright protection.

Obtaining trade mark registrations for the names of fictional characters like Mickey Mouse, James Bond or Indiana Jones is quite easy because names are generally considered to be inherently distinctive for any goods and services. If they are well-known, they enjoy a broad scope of protection as a recent decision of the EUIPO’s Opposition Division in a case concerning the famous tomb raider Lara Croft shows

Background

On 12 July 2022, Wuhan Shuncheng Electronic Commerce Co., Ltd. filed an application for EU trade mark no. 18731202 ‘LoraCraft’ covering essentially packaging and stuffing materials as well as ropes in class 22.

Relying on a likelihood of confusion (Art. 8(1)(b) EUTMR) and the protection of a trade mark with a reputation (Art. 8(5) EUTMR), Square Enix Newco Limited (‘Square Enix’) filed an opposition based on EU trade mark no. 549006 ‘LARA CROFT’ registered inter alia for ‘computer games software, computer games’ in class 9. 

. . . .

The EUIPO’s decisions

The Opposition Division briefly denied a likelihood of confusion because the goods are dissimilar (Art. 8(1)(b) EUTMR).

Regarding claims based on a trade mark with a reputation (Art. 8(5) EUTMR), the EUIPO found that ‘LARA CROFT’ and ‘TOMB RAIDER’ have been used as trade marks since 1996 throughout the world for computer games, computer game services and a wide range of merchandising products. Lara Croft has featured, inter alia, in music videos (e.g. here), car advertisements (here) and Hollywood films. Several Guinness world records are held by and associated with Lara Croft, including best-selling video game heroine. From 1996 to 2023 the total number of worldwide sales of Lara Croft video games amounted to 95 million units. In the EU (without the UK) Square Enix sold 14 different video games with a total of over 7 million units, generating an eight digit US Dollar turnover.

The Opposition Division concluded that the earlier EU trade mark enjoyed a strong reputation in the EU, in particular in Germany and France, for computer games in class 9.

As regards the similarity of signs, the EUIPO held that both signs will be perceived as the first and last name of a female. The signs are visually and phonetically highly similar on account of the coincidence in the letters ‘L*ra Cr*ft’ and the letters ‘o’ and ‘a’ being merely exchanged. Conceptually the signs were considered not to be similar.

On the question whether the relevant public would establish a link between the marks, the Opposition Division found that the goods and their market sector are only remotely connected. Despite the dissimilarity between video games and packaging material etc., the EUIPO held that merchandising of video game characters is a common practice and an important source of income. Hence it is found to be normal that the earlier mark is exploited outside its market sector, for instance, through licensing or merchandising. The contested goods could easily be used for further merchandising the famous Lara Croft trade mark. Considering this and the high visual and phonetic similarity, the Opposition Division concluded that the relevant public would establish a link.

The EUIPO also accepted that the use of ‘LoraCraft’ on the contested goods would take unfair advantage of ‘LARA CROFT’. Trade marks with a strong reputation will be recognized in almost any context. The exchange of the position of two letters will not impede that recognition. The use of ‘LoraCraft’ for the goods in class 22 will benefit from the attention paid to the highly similar and very well-known mark ‘LARA CROFT’ and will become associated with the aura of fame surrounding the latter. Consumers may think that there is a direct connection between the applicant’s goods and the famous Lara Croft character.

Comment

This decision raises the interesting question whether titles of works (such as ‘TOMB RAIDER’ or ‘LARA CROFT’ for video games or a video game character) are perceived as trade marks by the relevant public, i.e. as indications of origin. The answer impacts the questions whether a trade mark for the title of the work (1) is inherently distinctive, (2) can acquire a reputation for specific goods, (3) is genuinely used and (4) can be infringed by third party use of identical or similar signs.

The German Supreme Court held that use of a sign as a title does usually not amount to use as a trade mark. The purpose of a title of a work is generally only to distinguish one work from another but not to indicate the commercial origin. German case law makes exceptions, inter alia, for well-known titles (case Kinderstube at para. 41) and a series of works published under the same title (e.g. Higher Regional Court of Hamburg, case 5 U 147/09). Adding the ® or TM to the title is also considered to be helpful to establish trade mark use.

Link to the rest at The IPKat and thanks to C. for the tip.

PG notes that the OP has plenty of links so anyone can dig into IP law.

Here’s an overview of what is protected by trademark, patent and copyright:

Trademark, patent, or copyright

Trademarks, patents, and copyrights are different types of intellectual property. The USPTO grants patents and registers trademarks. The U.S. Copyright Office at the Library of Congress registers copyrights. Use the IP Identifier to learn what kind of intellectual property you have.

 TrademarkPatentCopyright
What’s legally protected?word, phrase, design, or a combination that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods or services.Technical inventions, such as chemical compositions like pharmaceutical drugs, mechanical processes like complex machinery, or machine designs that are new, unique, and usable in some type of industry.Artistic, literary, or intellectually created works, such as novels, music, movies, software code, photographs, and paintings that are original and exist in a tangible medium, such as paper, canvas, film, or digital format.
What’s an example?Coca-Cola® for soft drinksA new type of hybrid engineSong lyrics to “Let It Go”
from “Frozen”
What are the benefits
of federal protection?
Protects the trademark from being registered by others without permission and helps you prevent others from using a trademark that is similar to yours with related goods or services. Safeguards inventions and processes from other parties copying, making, using, or selling the invention without the inventor’s consent.Protects your exclusive right to reproduce, distribute, and perform or display the created work, and prevents other people from copying or exploiting the creation without the copyright holder’s permission.
If, while you scanned the overview of differences between the Big Three above that there might be some overlap between the three classes, you’d be right.

PG felt an urge to meander, but, surprisingly, resisted. Basically, each major branch of intellectual property protection – The Big Three listed above plus Trade Secrets – has developed in its own unique manner and has its own rules.

Plus Patent Prosecution – persuading the government to issue a patent and patent litigation – suing someone who has violated your patent – involve much different typical days at work.

In addition to patent attorneys, there are patent agents, sometimes called patent practitioners – non-lawyers who are licensed by the USPTO to assist inventors in the process of obtaining a patent in the first place. Patent agents typically charge less than patent lawyers do to persuade the USPTO to issue a patent.

If you suspect PG has described what some might regard as one fine mess for people who actually create intellectual property in all its various forms, PG would be inclined to agree with you.

You can theoretically file a patent application by yourself, but you’ll need to climb a long learning curve. Ditto for a trademark. Registering a copyright is a bit easier, but has its own institutional quirks and pitfalls.

No, PG can’t help you with any of this stuff. He is a retired attorney which means he hasn’t kept up with the tasks, quirks and hurdles that an active attorney is required to perform to keep his license fresh and sweet-smelling. PG has no idea where his old and musty license is. He probably tossed it many years ago.

Chilling Effect Overview

From Fire:

The “chilling effect” refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action.  

Chilling Effect in the Courts

Justice Felix Frankfurter referred to the chilling effect in his concurring opinion in Wieman v. Updegraff (1952), a case involving a loyalty oath imposed on teachers. In that opinion, Justice Frankfurter declared:

[The loyalty oath] has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.

Vague laws produce chilling effects because individuals do not know exactly when their expressive conduct or speech crosses the line and violates such rules. The Supreme Court explained this when examining the constitutionality of two provisions of the Communications Decency Act (CDA) that criminalized the online transmission of “patently offensive” and “indecent” communications. However, the law failed to define either term, thus creating a chilling effect.   

Writing for the Court in Reno v. ACLU (1997), Justice John Paul Stevens explained:

The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech.

Vague laws are not the only ones that can cause chilling effects. Overbroad laws and laws that impose a prior restraint on expression also can chill expression. Justice William Brennan referred to this in his dissenting opinion in Walker v. City of Birmingham (1967) when he wrote of “our overriding duty to insulate all individuals from the chilling effect upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”  

Laws that chill free expression do not provide the appropriate level of breathing space for First Amendment freedoms. The Court in New York Times Co. v. Sullivan (1964) created a new rule for allegedly defamatory statements about public officials—the actual malice rule—in order to combat the chilling effects that many state libel laws had on free expression.  

A law that made the media and individuals liable for every false statement would have palpable chilling effects and dampen political discourse on important public issues. In his concurring opinion, Justice Arthur Goldberg recognized that “[t]he opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations.”

Link to the rest at Fire

U.S. Copyright Office Fair Use Index

From Copyright.gov:

Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

The Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts

. . . .

The Fair Use Index is designed to be user-friendly. For each decision, we have provided a brief summary of the facts, the relevant question(s) presented, and the court’s determination as to whether the contested use was fair. You may browse all of the cases, search for cases involving specific subject matter or categories of work, or review cases from specific courts. The Index ordinarily will reflect only the highest court decision issued in a case. It does not include the court opinions themselves. We have provided the full legal citation, however, allowing those who wish to read the actual decisions to access them through free online resources (such as Google Scholar and Justia)

. . . .

About Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  2. Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
  4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-bycase basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

Link to the rest at Copyright.gov

Take-Down Notice

PG is finally finished with a detailed and, he thinks, effective response to a series of take-down notices he received out of the blue.

He thinks he’s scared off this particular strange organization, but only time will tell.

Lord of the Rings fan fiction writer sued for publishing own sequel

From The BBC:

A fan fiction writer has been sued by the estate of JRR Tolkien for copyright after publishing his own sequel to The Lord of the Rings.

US-based author Demetrious Polychron published a book called The Fellowship of the King in 2022.

He dubbed it “the pitch-perfect sequel to The Lord of the Rings.”

The court ruled that Polychron must stop distributing copies of the book and destroy all physical and electronic copies.

. . . .

In April 2023 Polychron attempted to sue the Tolkein estate and Amazon, claiming the TV series, Rings of Power, infringed the copyright in his book.

The case was dismissed after the judge ruled that Polychron’s own book was infringing on Amazon’s prequel that was released in September 2022.

The Tolkien Estate then filed a separate lawsuit against Polychron for an injunction to stop The Fellowship of the King from being further distributed.

On Thursday Judge Steven V Wilson called Polychron’s lawsuit “frivolous and unreasonably filed” and granted the permanent injunction, preventing him from selling his book and any other planned sequels, of which there were six.

The court also awarded lawyer’s fees totalling $134,000 (£106,000) to the Tolkien Estate and Amazon in connection with Polychron’s lawsuit.

The estate’s UK solicitor, Steven Maier of Maier Blackburn, said: “This is an important success for the Tolkien Estate, which will not permit unauthorised authors and publishers to monetise JRR Tolkien’s much-loved works in this way.

“This case involved a serious infringement of The Lord of the Rings copyright, undertaken on a commercial basis, and the estate hopes that the award of a permanent injunction and attorneys’ fees will be sufficient to dissuade others who may have similar intentions.”

Link to the rest at The BBC

PG hadn’t heard of the author named in the OP nor could he find out who the author had managed to hire as his attorney.

That said, this was an easy-to-predict slam-dunk win for the Tolkien Estate and its licensees. Mr. Polychron’s actions weren’t even close to any sort of copyright gray area.

Any competent attorney Mr. Polychron might have consulted about his Tolkien “fanfiction” plans would have told the author that it was a really stupid idea. And that it would cause the Tolkien folks roaring into court swinging a legal Thor’s Hammer.

If Mr. Polychron was trying to build his name and reputation in the book business, even a maximum-flashy Manhattan public relations firm would have cost him much less.

Copyright: Canadian Publishing Calls Out Ottawa’s Inaction

From Publishing Perspectives:

A bilingual coalition of Canadian publishing and associated organizations, including Access Copyright, today (November 30), is calling on Heritage minister Pascale St-Onge and innovation, science, and industry minister François-Philippe Champagne to meet with them urgently on the need to finally follow through on the government’s promise in the 2022 federal budget to ensure “that the Copyright Act protects all creators and copyright holders.”

As Publishing Perspectives readers will recall, in August a larger roster of organizations, councils, associations, guilds, and federations—representing more than 50,000 publishers, writers, and visual artists—sent a single demand to St-Onge: fix the 2012 Canadian “Copyright Modernization Act,” which they say has been a CA$200 million disaster for the book business ($US147.3 million).

The apparent silence from the Canadian government now has been accentuated by what Access Copyright reports was a “tabling last week in the House of Commons of a report by the Standing Committee on Science and Research on Support for the Commercialization of Intellectual Property that recommended, among other things, ‘That the government of Canada undertake a review of the Copyright Act in order to study appropriate remuneration for Canadian content creators, particularly as it relates to educational material.’”

“Called to testify last spring as part of the study by the Standing Committee on Science and Research, Gilles Herman (Éditions du Septentrion), then vice-president of [Québec’s copyright collection agency] Copibec, rightly pointed out that in 2012, the legislature added several exceptions to the Copyright Act allowing circumvention of intellectual property, including introducing the concept of fair dealing for educational purposes, without specifying its scope of application.

“Since then, most Canadian educational institutions have disengaged from the collective licensing regime they had previously adhered to, resulting in financial losses of approximately $200 million in 10 years, directly attributable to this legislative gap. ‘If the Canadian government does not correct the copyright law, the risk is that the education sector of the future will no longer teach Canadian content because Canadian publishers will have simply disappeared,’ he affirmed.

Link to the rest at Publishing Perspectives

Law firms are throwing legal spaghetti at the wall to take down gen-AI, but judges are so far unimpressed

From The New Publishing Standard:

Law suits against AI companies abound, and no question there are some valid issues that need settling in court, but already it’s beginning to feel like lawyers are just throwing spaghetti at the wall and hoping some strands stick.
Is this really what the publishing industry wants or needs?

Over at Publishers Weekly this week, Andrew Albanese summarises two on-going law suits against the alleged AI copyright thieves, and in both cases a judge has thrown out parts of the claims because they have no merit.

While the judge in one case has left the door open for revised claims – perhaps a nod to the fact that the law as stands was never written with AI in mind – the quick dismissal of some of the claims is a severe blow to the many in the AI Resistance camp who are citing as fact allegations of copyright theft, despite, as Albanese notes, many lawyers stating well in advance that the claims were not well-grounded in law.

From PW back in July:

Multiple copyright lawyers told PW on background that the claims likely face an uphill battle in court. Even if the suits get past the threshold issues associated with the alleged copying at issue and how AI training actually works—which is no sure thing—lawyers say there is ample case law to suggest fair use.”

PW offers several examples of why, that in the interests of the fair use clause I’ll leave to you to click through and read, and instead conclude the summary of that PW article with this quote:

 ‘I just don’t see how these cases have legs,’ one copyright lawyer bluntly told PW. ‘Look, I get it. Somebody has to make a test case. Otherwise there’s nothing but blogging and opinion pieces and stance-taking by proponents on either side. But I just think there’s too much established case law to support this kind of transformative use as a fair use.’ “

The July lawsuit came under scrutiny from TNPS at the time.

. . . .

The proposed class action suit before Chhabria was filed on July 7 by the Joseph Saveri Law Firm on behalf of authors Christopher Golden, Richard Kadrey, and comedian Sarah Silverman, just days after the Saveri firm filed a similar suit on behalf of authors against Open AI, with authors Paul Tremblay and Mona Awad as named plaintiffs.”

. . . .

In each case the law suits make the spurious claim that AI is generating writing in the style of an author or providing in-depth analysis of a published book, and that it does so by illegally copying an original work for its “training.”

For anyone who isn’t irrationally opposed to the very concept of AI and therefore clutching at any straw to attack it, the idea that it is a crime for an author to write in the style of another is as laughable as the idea that an author who learned their trade by reading other authors’ books has committed a crime.

What next? A lawsuit claiming an author has no spelling mistakes so they must have plagiarised a dictionary?

Link to the rest at The New Publishing Standard

Stability AI exec leaves amid concerns over ‘fair use’ disagreement with $101m startup

From Yahoo Finance – UK:

A top exec at a British artificial intelligence (AI) startup has resigned because he is opposed to the company’s method of using copyrighted work to train its model without payment or permission from the owner.

Stability AI head of audio, Ed Newton-Rex said in a lengthy post on X he is stepping down because he disagrees “with the company’s opinion that training generative AI models on copyrighted works is ‘fair use’”.

The London-headquartered startup uses generative AI to create text, images, music and video from descriptive prompts typed in by a human.

However, it has sparked controversy because it sweeps data indiscriminately to train its open-source model.

Newton-Rex, who says he is also a music composer, continued: “For those unfamiliar with ‘fair use’, this claims that training an AI model on copyrighted works doesn’t infringe the copyright in those works, so it can be done without permission, and without payment.

“This is a position that is fairly standard across many of the large generative AI companies, and other big tech companies building these models — it’s far from a view that is unique to Stability. But it’s a position I disagree with.”

He is not the only one to disagree. Getty Images has accused Stable Diffusion, a generative AI model developed by Stability AI, of unlawfully scraping over 12m images owned by Getty to train its models.

The media company has asked Delaware’s federal court to order Stability to stop using its pictures and wants what could amount to $1.8 trillion in damages, according to Fortune.

Stability AI is the brainchild of Oxford graduate Emad Mostaque and has raised $101m (£82.3m) in a funding round led by Coatue, Lightspeed Venture Partners and O’Shaughnessy Asset Management.

In reply to Newton-Rex on X, Mostaque wrote: “Was great working with you & this is an important discussion. The considered input we gave to the Copyright Office on why we believe fair use supports creative development is here.“

Link to the rest at Yahoo Finance – UK

FTC calls out consumer protection and competition intersections in Copyright Office AI proceeding

From JD Supra:

The U.S. Federal Trade Commission (FTC) staked out its role in policing the potential competition and consumer protection implications of generative AI technologies’ use of copyrighted materials in comments submitted in the U.S. Copyright Office’s proceeding on AI and copyright. The proceeding seeks information on the use of copyrighted works to train AI models, levels of transparency and disclosure needed regarding copyrighted works, and the legal status of AI-generated outputs, among other things. In its comments, the FTC reiterated its expertise addressing competition and consumer protection issues involving AI, identified copyright issues related to generative AI that implicate competition and consumer protection policy, and introduced testimony from an October 2023 FTC roundtable with creative professionals. The FTC also promised vigorous efforts to protect consumers in the rapidly evolving AI marketplace.

The FTC’s AI Enforcement

The FTC’s mandate – under the FTC Act and other statutes – to promote competition and protect consumers gives it the power to address unfair or deceptive acts or practices and unfair methods of competition. The FTC has characterized AI as the latest in a series of new technologies that pose novel and important challenges for consumers, workers, and businesses, which falls within the purview of the FTC’s “economy-wide mission.” According to the FTC, as companies deploy AI-enabled systems across a wide range of industries and people incorporate AI-powered products and services into their daily lives, the potential for harm to consumers increases.

The FTC has experience applying its existing legal authority to address alleged unlawful practices and unfair competition involving AI. Prior actions and guidance have addressed a variety of consumer protection allegations, such as algorithms that rely on consumer’s personal information, algorithm-driven recommendations communicating deceptive claims, and algorithms making biased decisions. The FTC has also called attention to potential advertising concerns relating to AI, and has highlighted the risk of fraud stemming from the use of chatbots, deepfakes, and voice clones.

Consumer Protection, Competition, and Copyright

In its comments to the Copyright Office, the FTC highlights important intersections across consumer protection, competition law and policy, and copyright law and policy.  The Commission’s comments note three areas of interest where the FTC might seek to address unfair or deceptive practices to ensure a competitive marketplace.

First, the FTC notes that decisions about where to draw the line between human creation and AI-generated content may cause harm to both creators and consumers. Creators may be harmed by their work being used to train an AI tool without their consent. Consumers, on the other hand, may be harmed if there is a lack of transparency about AI authorship.

Second, the FTC argues that questions about how to address liability for AI-generated content can implicate consumer protection and competition policy. These questions include what liability principles should apply, assigning and apportioning liability, treatment of pirated content, and the role of disclosures, among other issues. As policymakers seek answers to these questions, there may be overlap and potentially some conflict with consumer protection or competition interests. For example, as the FTC notes, “the use of pirated or misuse of copyrighted materials could be an unfair practice or unfair method of competition under Section 5 of the FTC Act.”

Third, the FTC argues that consumer protection and competition principles may call for policy protections that “go beyond the scope of rights and the extent of liability under the copyright laws.” There may be times when consumer protection or competition policy and copyright policy are aligned, as in the example above where misuse of copyrighted materials would likely violate both the FTC Act and copyright law. The FTC raises the possibility, however, that there may also be circumstances where companies run afoul of Section 5 with their AI-generated content even if that content would not violate copyright law.

Impact of Generative AI on Creative Economy

The FTC also seeks to highlight impacts on content creators. Along with its written remarks, the FTC submitted the transcript of its October 4, 2023, “Creative Economy and Generative AI” roundtable, which featured musicians, authors, actors, artists, software developers, and other creative professionals discussing the impact of generative AI on their work. The FTC transcript noted views shared by participants on topics such as: (1) works being used to train generative AI without participants’ consent; (2) insufficient or ineffective mechanisms for obtaining consent, including reliance on opt-out approaches; (3) lack of transparency and disclosure about training data and authorship of AI-generated content; (4) the ample use cases of AI for creative professionals but the need for better guardrails to protect creators; and (5) the putatively great power imbalance between the creators and the generative AI companies.

Link to the rest at JD Supra

PG is anything but an expert on the FTC’s jurisdiction, but color him skeptical about whether the agency has jurisdiction over Generative AI programs.

PG did some quick and dirty research and found the FTC has about 1000 people on its payroll, about two-thirds of whom are attorneys. As PG has mentioned on multiple occasions, he’s a retired attorney and has high regard for the general intelligence of his fellow attorneys.

However, with the exception of patent attorneys, who must have an undergraduate degree in the science or engineering fields, a large portion of the bar members anywhere PG knows about have non-science or engineering or math degrees as undergraduates. Indeed, law school is one of the few options for a humanities major who would like to be able to support a family in a reasonably comfortable manner.

In short, the people working at the FTC undoubtedly have a lot of opinions about artificial intelligence, but little ability to understand how it works or what dangers are real and what dangers are imaginary. The fact that judges are all attorneys gives PG another reason to worry about involving AI research in the US legal system.

Here’s a statement from the FTC website about the agency’s mission:

The FTC enforces federal consumer protection laws that prevent fraud, deception and unfair business practices. The Commission also enforces federal antitrust laws that prohibit anticompetitive mergers and other business practices that could lead to higher prices, fewer choices, or less innovation.

Whether combating telemarketing fraud, Internet scams or price-fixing schemes, the FTC’s mission is to protect consumers and promote competition.

Perhaps PG missed something, but telemarketing fraud, internet scams or price-fixing schemes don’t sound like the main features of large language models.

First Sale Doctrine in Trademark and Copyright Law

From BonaLaw:

Federal law allows owners of copyrights or trademarks to file suit for alleged infringement of their exclusive rights. Through a lawsuit, they can recover damages or ask a court to enjoin further unauthorized use of their protected materials. Certain uses of copyrighted or trademarked materials are allowed by law, even without the owner’s permission.

The first sale doctrine allows the resale of products that constitute or contain someone else’s intellectual property without the owner’s permission, as long as the person lawfully owns the product. The first sale doctrine is codified in U.S. copyright law, and court decisions have applied it to trademarks. It can serve as a defense to a copyright or trademark infringement lawsuit in certain situations.

The First Sale Doctrine in Copyright Law

The first sale doctrine states that a copyright owner cannot prevent someone who has lawfully purchased a copyrighted work, such as a book, from selling, loaning, or giving that item to someone else. This allows the distribution of copyrighted materials beyond the initial sale by the copyright owner. Without the first sale doctrine, no one would be able to sell or otherwise dispose of books, CDs, DVDs, or other tangible works that they have purchased without the copyright owner’s authorization. Bookstores and libraries would need permission every time that they sold or loaned a book.

Federal copyright law has codified the first sale doctrine at 17 U.S.C. § 109. Limits apply to the doctrine when a copyrighted work is in digital rather than physical form. Section 109 also contains exceptions for certain types of media.

Limits on Resale of Digital Copies

The first sale doctrine pre-dates the digital era. It assumes that copyrighted materials exist in physical form. People now buy mp3 files instead of CDs, digital movies instead of DVDs, and ebooks instead of books. Digital media files are not distinct, tangible items that can literally change hands after a sale. The process of copying a digital file is simpler than copying a CD or DVD, and much simpler than copying a book.

The U.S. Copyright Office has concluded that the first sale doctrine does not apply to the unauthorized resale of copyrighted materials in digital form. In a report issued in 2001, it stated that transmitting a digital file from one user to another creates a new copy of the copyrighted work.

Several court decisions have adopted the Copyright Office’s conclusions. For example, in 2018, the Second Circuit Court of Appeals affirmed a New York federal court’s ruling against a company that allowed consumers to sell digital music files that they had purchased through the iTunes store.

Sale vs. Licensing of Work

For the first sale doctrine to apply, the person attempting to sell their copy of a copyrighted work must actually own that copy. A person who buys a book from a bookstore owns the paper on which the book is printed. They can sell that item to someone else. The same can be said for a CD purchased at a music store. That said, not all exchanges of money for copyrighted materials constitute a “sale.”

Many software companies include end-user license agreements (EULAs), stating that the consumer is only purchasing a license to use their software. If the EULA states that the license is not transferable, the consumer cannot legally sell or otherwise convey the software to anyone else.

Link to the rest at BonaLaw

Capitol Records v. ReDigi

PG Note: This is a 2018 case that dealt with the first sale doctrine and digital music.

From Loeb & Loeb:

Plaintiffs, record company Capitol Records LLC and others, filed a suit against defendants ReDigi Inc., an online “reseller” of pre-owned digital music files, alleging multiple copyright violations. In a March 2013 memorandum and order, the district court granted summary judgment in favor of Capitol Records and denied summary judgment in favor of ReDigi, finding that ReDigi’s online service infringed Capitol Record’s reproduction and distribution rights and that neither the first sale doctrine nor fair use protected ReDigi from Capitol Record’s claims.

. . . .

In July 2016, defendants appealed, arguing that ReDigi’s online system lawfully enables resales of digital files under the doctrines of first sale and fair use as well as several policy arguments. The Second Circuit rejected these arguments and held that neither fair use nor first sale doctrine defenses protected defendants from liability under 17 U.S.C. § 106(1) (the exclusive right of reproduction) of the Copyright Act. The Second Circuit made no decision on whether defendants also infringed on plaintiffs’ exclusive rights under 17 U.S.C. § 106(3) (the exclusive right of distribution).

Defendants argued that technically ReDigi’s process is not a “reproduction,” since the ReDigi system copies data for the purchasing user as it deletes the equivalent on the selling user’s device, so the amount of data extant in the transfer process remains constant. The Second Circuit affirmed the district court’s reasoning, similarly concluding that in the course of transferring digital files on ReDigi, new phonorecords are created, thus violating plaintiffs’ exclusive control of reproduction underSection 106(1). The court reached this conclusion by determining that the phonorecord was the physical medium on which the file was located, e.g., the computer hard drive, rather than the digital file itself. The court also found the fact that the amount of data extant in the transfer process remained constant to be immaterial. 

Second, the Second Circuit analyzed whether ReDigi’s online system lawfully enables the resale of its users’ digital files under the fair use doctrine. The Second Circuit evaluated ReDigi’s fair use defense by weighing the four statutory factors in 17 U.S.C. §107.

Factor one favors secondary uses that are “transformative,” meaning that the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message, rather than merely superseding the original work.” The Second Circuit found that factor one weighed in favor of plaintiffs given that defendants made no change to the copyrighted digital files and also because defendants have a commercial motivation. Factor two concerns “the nature of the copyrighted work.” The court glossed over factor two, simply concluding then when looking to the nature of plaintiffs’ copyrighted works, there existed no substantial reason for favoring or disfavoring fair use. Factor three concerns “the amount and substantiality of the portion of the original used in relation to the copyrighted work as a whole.” Since ReDigi’s system makes identical copies of plaintiffs’ copyrighted sound recordings, this disfavors a finding of fair use, weighing factor three in favor of plaintiffs. Factor four, which the court said was “the single most important element of fair use,” focuses on whether the copy competes with the original in the marketplace so as to deprive the original copyright holder of significant revenue because purchasers prefer the copy rather than the original. The digital files resold by the ReDigi system are lower in price than the original, thus competing directly with the original copyright holders. Further, there is no physical deterioration in a digital file, unlike with a used book. For this reason, the Second Circuit weighed factor four in favor of plaintiffs. After collectively weighing all four factors, the Second Circuit found no fair use justification because defendants’ system inflicts substantial harm on the value of plaintiffs’ copyrights by acting as a direct competitor in the marketplace.

Third, the Second Circuit addressed defendants’ policy arguments. Defendants argued that (1) the ReDigi system allows for an economically beneficial practice, authorized by courts in the common law development of copyright and also endorsed by Congress, and (2) the court should read Section 109(a) to accommodate digital resales because the first sale doctrine protects such action regardless of the technological medium. In advancing these two policy arguments, defendants relied on an “equal treatment principle” and a “principle of technological neutrality,” arguing that purchasers of digital works should not be at a disadvantage when compared with purchasers of physical copyrighted works. The Second Circuit rejected both policy arguments, finding that the economic benefits were inconsequential and also that a broad reading of Section 109(a) would “exceed the proper exercise of [its] authority” given that Congress has already ordered that 109(a) be read narrowly. 

Link to the rest at Loeb & Loeb

The ‘First Sale Doctrine’ and Its Impact on the Music Business

PG Note: This was published in 2013. PG chose to post this because he suspects that Artificial Intelligence is going to raise some First Sale issues at some time in the future.

From Brookings:

On March 19, the Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons, a landmark copyright case examining the reach of the “first sale” doctrine. Under that doctrine, the owner of a copy of a work that was “lawfully made” in accordance with U.S. copyright law “is entitled, without the authority of the copyright owner, to sell or otherwise dispose” of it. For instance, if you purchase a lawfully produced music CD or movie DVD in the United States, you are free to later sell it at a garage sale, donate it to a library or loan it to a friend.

But what about goods made and sold overseas and then imported for resale? After all, there is another provision of copyright law that prohibits the importation into the United States, without the authority of the copyright owner, of copies of a work “acquired outside the United States.”

These two potentially contradictory features of copyright law were tested by Supap Kirtsaeng, who built a business around importing textbooks that had been lawfully made and sold overseas and then reselling them at a profit in the United States. After publisher John Wiley & Sons filed suit against Kirtsaeng in 2008, a federal district court found that his actions infringed Wiley’s copyrights, and the Second Circuit affirmed. However, the Supreme Court reversed these decisions on March 19, holding that the first sale doctrine “applies to copies of a copyrighted work lawfully made abroad.” The ruling will make it very difficult for sellers of physical goods like music CDs to price the same products differently in different markets.

Link to the rest at Brookings

Court Offers First Glimpse Into Whether AI Machine Learning Is Copyright Infringement Or Fair Use

From Mondaq:

As we previously blogged, multiple generative AI platforms are facing lawsuits alleging that the unauthorized use of copyright-protected material to train artificial intelligence constitutes copyright infringement.  A key defense in those cases is fair use.  Specifically, AI platforms contend that they don’t need a license to use copyright-protected content—whether scraped from the Internet or obtained from a pirate trove of books—for the purpose of developing and improving large language models (LLMs) under the theory that such use is transformative and fair use under the Copyright Act.  Whether fair use prevails in this battle is one of the biggest copyright questions of the day.

While many of the generative AI actions are pending in the U.S. District Court for the Northern District of California, a federal court in Delaware recently had the opportunity to opine on the merits of this important fair use question.  In Thomson Reuters v. Ross Intelligence, 2023 WL 6210901 (D. Del. Sept. 25, 2023), the owner of Westlaw (Thomson Reuters) claims, among other things, that an AI startup (Ross Intelligence) infringed Thomson Reuters’ copyright by using Westlaw’s headnotes to train Ross’s legal AI model.  The parties cross moved for summary judgment on various grounds, including on Ross’s fair use defense.  

Though the decision explores multiple interesting questions of copyright law, including the copyrightability of Westlaw headnotes (maybe) and whether the Copyright Act preempts Thomson Reuters’ claim for tortious interference (yes), its analysis of Ross’s fair use defense—in particular, the court’s assessment of whether Ross’s alleged use of Westlaw’s headnotes (assuming they are protected by copyright) is “transformative—is where the court appears to have broken new ground.

The court begins its fair use analysis by discussing two cases from the Ninth Circuit that deal with so-called “intermediate copying.”  In Sega Enterprises v. Accolade, 977 F.2d 1510 (9th Cir. 1992), the court held that it was fair use for a company to copy Sega’s copyright-protected console code for the purpose of learning the software’s functional components and making new games that were compatible with Sega’s console.  Similarly, in Sony Computer Entertainment v. Connectix, 203 F.3d 596 (9th Cir. 2000), the Ninth Circuit held it was fair use for a company to create a copy of Sony’s software in order to create a new gaming platform that was compatible with Sony’s games.  The Thomson Reuters court noted that the Supreme Court “has cited these intermediate copying cases favorably, particularly in the context of ‘adapting the doctrine of fair use in light of rapid technological change.’”  2023 WL 6210901, at *8 (quoting Google v. Oracle, 141 S. Ct. 1183, 1198 (2021)) (cleaned up).

Thomson Reuters attempted to distinguish the intermediate-copying cases by arguing that, unlike the companies in Sega and Sony that merely sought to “study functionality or create compatibility,” Ross sought to train its AI with Westlaw’s “creative decisions” specifically to “replicate them” in the AI’s output.  Ross, on the other hand, contended that “its AI studied the headnotes and opinion quotes only to analyze language patterns, not to replicate Westlaw’s expression,” and thus was lawful “intermediate copying.”  The court held that whether Ross’s use was transformative would turn on the “precise nature of Ross’s actions.”  

Here’s the key text:

It was transformative intermediate copying if Ross’s AI only studied the language patterns in the headnotes to learn how to produce judicial opinion quotes.  But if Thomson Reuters is right that Ross used the untransformed text of headnotes to get its AI to replicate and reproduce the creative drafting done by Westlaw’s attorney-editors, then Ross’s comparisons to cases like Sega and Sony are not apt.

. . . .

To the extent that LLMs are ingesting copyright-protected material solely to understand language patterns and not to replicate their creative expression (which may very well be the case for many LLMs), this opinion suggests that using such material to train AI is transformative.  But if the material is being used to train AI to output the “creative drafting” discerned from the original, then the use is likely not transformative.  Thus, as the Thomson Reuters court observes, the fair use question in these cases may turn on the exact nature of the AI training process.

Link to the rest at Mondaq

PG apologizes if the rest of this post is boring for anyone who isn’t a law geek, but the following may help clarify PG’s interest.

The OP intrigued PG because he got into a bit of trouble a long time ago when he suggested, in an article he wrote for The Journal of the American Bar Association, that West Publishing didn’t have a legitimate copyright to the books it published that consisted of the opinions of a large number of courts across the country.

West was a venerable professional publisher, founded in 1872 to print law books for the use of attorneys and judges.

West evolved to publish the statutes for the United States government and every state.

West also published the court opinions written by judges in the federal court system and all states.

Because the statutes and case opinions are public documents, anyone who desires to publish them is free to do so.

West contended that the improvements it made in these public documents it published were protected by copyright laws.

West built up a large business based upon the changes it made to improve the quality of the federal and state court opinions. These included:

  1. West employees proofread the opinion and corrected grammatical errors.
  2. West employees checked all of the statutory and case citations included in the opinion and corrected them to reflect generally used conventions of legal citations. (Judges, like any other human beings, sometimes make mistakes when they write their opinions. The conventions used in creating such citations can make correctly creating the citations to statutes and cases an error-prone activity.)
  3. For example, “Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011),” is West’s citation for the court opinion in the case of Stephen Stearns v. Ticketmaster Corp, et al (et al is an abbreviation of the Latin term “et alia,” which means “and others.”) that was published in volume 655 of the Federal Reporter, Third Series (identified by the abbreviation “F.3d”), beginning on page 1013. The citation also shows the decision was issued by the United States Court of Appeals for the Ninth Circuit (abbreviated as 9th Cir.), in 2011.
  4. It was and is considered bad form for an attorney to cite a case other than in the form prescribed by “Blue Book Citations” in legal documents submitted to a court. West citations were the basis for Blue Book Citations. As mentioned earlier, most judges were happy to have West correct their citation errors. That service helped a judge avoid snide remarks from other judges in the judicial cafeteria.

West also categorized cases according to a West-created “Key Number System.” This is a classification system that organizes cases by topic, allowing legal researchers to quickly find cases related to a particular issue. This system was created in the 19th century, starting with seven categories: persons, property, contracts, torts, crime, remedies, and government.

The Key Number System could be quite helpful before the digitization of cases and statutes.

In 1967, the Ohio State Bar Association entered into a $7,000 agreement with Data Corporation of Beavercreek, Ohio, to create a full-text, interactive research service of the Ohio statutes.

In 1973, Mead Data Central, the successor of Data Corporation, introduced LEXIS, an online computer research service that consisted of the full text of Ohio and New York codes and cases, the U.S.
code, and some federal case law. The LEXIS search engine was clunky by today’s standards, but it allowed attorneys to search the statutes and case opinions much faster and at a more granular level than could be done with West’s printed books.

West and LEXIS (Mead Data Central)

When Successful, Art Exceeds Its Creator’s Plans – Especially In the Days of AI

From LexBlog:

When successful, art exceeds its creator’s plans. So true in these days of AI.

No one could have envisioned the “travelings” of a book, an article or a legal blog post. To the “Books3 database” for Meta’s AI?

Ian Bogost, a contributing writer for The Atlantic, takes a contra – and refreshing – view to that of most authors, reporters and publishers when it comes to the scraping of their work for the training of AI large language models such as ChatGPT.

A searchable database revealed that thousands of books were used “without permission,” causing some authors to express outrage and even launch lawsuits against tech giant Meta.

Bogost’s response:

Whether or not Meta’s behavior amounts to infringement is a matter for the courts to decide. Permission is a different matter. One of the facts (and pleasures) of authorship is that one’s work will be used in unpredictable ways. The philosopher Jacques Derrida liked to talk about “dissemination,” which I take to mean that, like a plant releasing its seed, an author separates from their published work. Their readers (or viewers, or listeners) not only can but must make sense of that work in different contexts. A retiree cracks a Haruki Murakami novel recommended by a grandchild. A high-school kid skims Shakespeare for a class. My mother’s tree trimmer reads my book on play at her suggestion. A lack of permission underlies all of these uses, as it underlies influence in general: When successful, art exceeds its creator’s plans.

Sitting with a group of law firm leaders in January, I was told they were going to sign a demand letter, along with other large law firms, demanding that large LLM’s – OpenAI, Google, etc stop scraping the open legal publishing of law firms.

I thought lots of luck – and why would you want to stop the advancement of the law, which the use of AI in legal publishing represents.

That silliness by law firms, as best I can tell, has subsided.

Books, articles and legal publishing – and AI itself – are vessels for ideas, per Bogost.

Once bound and published, boxed and shipped, my books find their way to places I might never have anticipated. As vessels for ideas, I hope, but also as doorstops or insect-execution devices or as the last inch of a stack that holds up a laptop for an important Zoom. Or even—even!—as a litany of tokens, chunked apart to be reassembled by the alien mind of a weird machine. Why not? I am an author, sure, but I am also a man who put some words in order amid the uncountable others who have done the same. If authorship is nothing more than vanity, then let the machines put us out of our misery.

I tend to agree with Bogost that authors, rather than feeling violated, should consider the unexpected ways their works contribute to the collective human—and increasingly machine—understanding.

Link to the rest at LexBlog

This new data poisoning tool lets artists fight back against generative AI

From MIT Technology Review:

A new tool lets artists add invisible changes to the pixels in their art before they upload it online so that if it’s scraped into an AI training set, it can cause the resulting model to break in chaotic and unpredictable ways. 

The tool, called Nightshade, is intended as a way to fight back against AI companies that use artists’ work to train their models without the creator’s permission. Using it to “poison” this training data could damage future iterations of image-generating AI models, such as DALL-E, Midjourney, and Stable Diffusion, by rendering some of their outputs useless—dogs become cats, cars become cows, and so forth. MIT Technology Review got an exclusive preview of the research, which has been submitted for peer review at computer security conference Usenix.   

AI companies such as OpenAI, Meta, Google, and Stability AI are facing a slew of lawsuits from artists who claim that their copyrighted material and personal information was scraped without consent or compensation. Ben Zhao, a professor at the University of Chicago, who led the team that created Nightshade, says the hope is that it will help tip the power balance back from AI companies towards artists, by creating a powerful deterrent against disrespecting artists’ copyright and intellectual property. Meta, Google, Stability AI, and OpenAI did not respond to MIT Technology Review’s request for comment on how they might respond. 

Zhao’s team also developed Glaze, a tool that allows artists to “mask” their own personal style to prevent it from being scraped by AI companies. It works in a similar way to Nightshade: by changing the pixels of images in subtle ways that are invisible to the human eye but manipulate machine-learning models to interpret the image as something different from what it actually shows. 

The team intends to integrate Nightshade into Glaze, and artists can choose whether they want to use the data-poisoning tool or not. The team is also making Nightshade open source, which would allow others to tinker with it and make their own versions. The more people use it and make their own versions of it, the more powerful the tool becomes, Zhao says. The data sets for large AI models can consist of billions of images, so the more poisoned images can be scraped into the model, the more damage the technique will cause. 

A targeted attack

Nightshade exploits a security vulnerability in generative AI models, one arising from the fact that they are trained on vast amounts of data—in this case, images that have been hoovered from the internet. Nightshade messes with those images. 

Artists who want to upload their work online but don’t want their images to be scraped by AI companies can upload them to Glaze and choose to mask it with an art style different from theirs. They can then also opt to use Nightshade. Once AI developers scrape the internet to get more data to tweak an existing AI model or build a new one, these poisoned samples make their way into the model’s data set and cause it to malfunction.

Poisoned data samples can manipulate models into learning, for example, that images of hats are cakes, and images of handbags are toasters. The poisoned data is very difficult to remove, as it requires tech companies to painstakingly find and delete each corrupted sample.

The researchers tested the attack on Stable Diffusion’s latest models and on an AI model they trained themselves from scratch. When they fed Stable Diffusion just 50 poisoned images of dogs and then prompted it to create images of dogs itself, the output started looking weird—creatures with too many limbs and cartoonish faces. With 300 poisoned samples, an attacker can manipulate Stable Diffusion to generate images of dogs to look like cats.

Images were created by the research team.

Generative AI models are excellent at making connections between words, which helps the poison spread. Nightshade infects not only the word “dog” but all similar concepts, such as “puppy,” “husky,” and “wolf.” The poison attack also works on tangentially related images. For example, if the model scraped a poisoned image for the prompt “fantasy art,” the prompts “dragon” and “a castle in The Lord of the Rings” would similarly be manipulated into something else.

Zhao admits there is a risk that people might abuse the data poisoning technique for malicious uses. However, he says attackers would need thousands of poisoned samples to inflict real damage on larger, more powerful models, as they are trained on billions of data samples.

“We don’t yet know of robust defenses against these attacks. We haven’t yet seen poisoning attacks on modern [machine learning] models in the wild, but it could be just a matter of time,” says Vitaly Shmatikov, a professor at Cornell University who studies AI model security and was not involved in the research. “The time to work on defenses is now,” Shmatikov adds.

Link to the rest at MIT Technology Review

Data poisoning tool eyed to prevent AI copyright infringement

From Coinbase:

Amid the heated row between artificial intelligence (AI) companies and creators over alleged copyright breaches, researchers are developing a new tool that will protect digital artists’ intellectual property (IP) rights.

The tool, dubbed Nightshade, is designed to poison the data sets used in training generative AI models, causing them to malfunction. Per an MIT Technology Review report, Nightshade works by tweaking the pixels in digital art in an invisible way to the naked eye but affects how trained generative AI models interpret the image.

Early test results by the researchers at the University of Chicago have shown significant promise in contaminating machine learning data sets. For example, inputting the word dogs in “poisoned” systems generates images of cats, increasing the inaccuracies of affected models.

“The poisoned data is very difficult to remove, as it requires tech companies to painstakingly find and delete each corrupted sample,” read the review.

Ben Zhao, a leading researcher for the project, hinted at plans to make Nightshade open-source to allow other teams to create their product versions. Zhao says the end goal is not to stunt the development of AI but to “tip the power balance” between AI developers and artists “by creating a powerful deterrent” against the violation of copyrights.

The researchers developed Glaze—a tool designed to label digital art genres in a manner different from the original to trick AI models. Zhao revealed that Nightshade will be integrated into Glaze to give artists stronger copyright control over their creations.

Despite the promise shown by the tools, attempts at poisoning large-scale generative AI models will require “thousands of poisoned samples,” with experts predicting AI developers will begin working on defenses.

“We don’t yet know of robust defenses against these attacks. We haven’t yet seen poisoning attacks on modern [machine learning] models in the wild, but it could be just a matter of time,’ said Vitaly Shmatikov, professor at Cornell University. “The time to work on defenses is now.”

There are fears that bad actors could leverage the tools to carry out malicious attacks against machine-learning models. Still, the researchers say the bad actors will require a boatload of poisoned samples to inflict real damage.

Link to the rest at Coinbase

PG says this is an unwise overreaction to new technology by entrenched incumbents who benefit from the status quo. AI is an extraordinarily important technology and stunting its growth is a bad idea.

As PG has said before, from his understanding of how the creators of an AI program build their program’s corpus of image elements, copies of the originals are not created.

Instead, the originals are basically chopped up and broken down into a stew of words, image elements, etc. from which the AI program constructs a group of words or images in response to a user’s inputs that is not a duplicate of any of the works that were fed into the digital meat grinder in the first place.

If the AI program is not able to create a copy (or multiple copies) of an original work regardless of user prompts, where’s the copy of prior works? Where are the damages to the creator of the original work? How does the creator prove damages?

Copyright Implications of the Relationship Between Generative Artificial Intelligence and Text and Data Mining

From InfoJustice.org:

In the heated copyright discussions over generative artificial intelligence, the term “text and data mining” is sometimes used interchangeably with “machine learning” or the “ingestion of material” to train large language models in the generative artificial intelligence context.  This paper attempts to define these activities more precisely to better understand their treatment under different legal regimes. 

Text and data mining (TDM) involves the collection of vast amounts of digitized material and the use of software to analyze and extract information from it. “TDM is a crucial first step to many machine learning, digital humanities, and social science applications….” Machine learning is a technique for building artificial intelligence (AI) systems that is characterized by a computer’s ability to automatically learn and improve on the basis of data or experience, without relying on explicitly programmed rules. Generative AI—AI that generates expressive material such as text, images, audio, or video in response to user prompts—is one form of AI that is constructed by the use of machine learning. Thus, TDM is a crucial first step in the development of generative AI models; but TDM has many applications completely unrelated to generative AI.

TDM Activities Unrelated to Generative AI

Indeed, some TDM research methodologies are completely unrelated to AI altogether. For instance, sometimes TDM can be performed by developing algorithms to detect the frequency of certain words within a corpus, or to parse sentiments based on the proximity of various words to each other. In other cases, though, scholars must employ machine learning techniques to train AI models before the models can make a variety of assessments. Comments prepared by the University of California Berkeley Library in response to the U.S. Copyright Office’s Notice of Inquiry on Artificial Intelligence and Copyright illustrate this distinction:

Imagine a scholar wishes to assess the prevalence with which 20th century fiction authors write about notions of happiness. The scholar likely would compile a corpus of thousands or tens of thousands of works of fiction, and then run a search algorithm across the corpus to detect the occurrence or frequency of words like “happiness,” “joy,” “mirth,” “contentment,” and synonyms and variations thereof. But if a scholar instead wanted to establish the presence of fictional characters who embody or display characteristics of being happy, the scholar would need to employ “discriminative modeling” (a classification and regression technique) that can train AI to recognize the appearance of happiness by looking for recurring indicia of character psychology, behavior, attitude, conversational tone, demeanor, appearance, and more.

Significantly, neither of these TDM examples involves generative AI. The AI employed in the second example would not be considered generative AI because it would produce research results, and not create new expressive material such as text.   

Legal Exceptions for TDM

Certain jurisdictions have adopted exceptions to copyright law permitting the copying necessary to engage in TDM. The scope of these exceptions vary. Some are broad enough to apply to all forms of TDM, while others might not apply to TDM engaged in for most generative AI purposes. 

European Union. For example, the TDM exception mandated by Article 3 of the European Union Directive on Copyright in the Digital Single Market likely would apply to the training of generative AI models only in unusual circumstances. Article 3 requires Member States to enact copyright exceptions permitting “reproductions and extractions made by research organisations and cultural heritage institutions in order to carry out, for the purposes of scientific research, text and data mining of works or other subject matter to which they have lawful access.” Because of the scientific research requirement, Article 3 would apply to the training of generative AI models only for the purpose of scientific research. While there are many circumstances in which researchers would employ TDM for scientific research purposes (such as the examples in the previous section), there are far fewer circumstances in which the researcher would employ TDM to train a generative AI model, apart from research on generative AI. Generative AI would of course be useful to a researcher when she was writing up the results of her research. But she likely would use a general purpose generative AI such as ChatGPT for that purpose. She certainly wouldn’t create her own generative AI model.  

In contrast, Article 4 of the EU DSM Directive more typically would apply to the training of generative AI models. Article 4 requires EU Member States to enact copyright exceptions permitting “reproductions and extractions of lawfully accessible works and other subject matter for the purposes of text and data mining.” These exceptions apply on condition that the rightsholders have not opted-out “in an appropriate manner, such as machine-readable means in the case of content made publicly available online.” An Article 4 TDM exception can be used by any entity—not only research organizations and cultural heritage institutions—and for any purpose—not only scientific research. Without the scientific research limitation, Article 4 would easily apply to the training of generative AI models.

Provisions consistent with these two articles must be enacted in all 27 Member States of the European Union. Additionally, countries seeking EU membership will also eventually enact similar provisions.

Singapore. Like Article 4 of the EU DSM Directive, Singapore’s TDM exception would also apply to the training of generative AI models. Section 244 of the Singapore Copyright Act allows the copying of works for the purpose of “computational data analysis.” Section 243 of the Act defines computational data analysis of a work as “(a) using a computer program to identify, extract and analyse information or data from the work or recording; and (b) using the work or recording as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data.” Section 243 provides an illustration stating that “an example of computational analysis under paragraph (b) is the use of images to train a computer program to recognize images.” Like Article 4 of the EU DSM Directive, this provision contains no limitation such as a scientific research research purpose.

Japan. Similarly, Japan’s TDM exception is worded broadly enough to apply to the training of generative AI. Article 30-4(ii) of the Japan Copyright Act permits uses of works “in data analysis (meaning the extraction, comparison, classification, or other statistical analysis of the constituent language, sounds, images, or other elemental data from a large number of works or a large volume of other such data…).” Like the Article 4 in the EU DSM Directive and Singapore’s TDM exception, this provision contains no limitations such as a scientific research purpose.

United Kingdom. Conversely, the TDM exception in Article 29A of the United Kingdom’s Copyright, Designs, and Patents Act applies only to “computational analysis” for “the sole purpose of research for a non-commercial purpose.” Like Article 3 of the EU DSM Directive, this appears generally to preclude copying for the training for generative AI unless the purpose was researching generative AI. 

Ukraine. Ukraine has an even narrower TDM exception, permitting the making of copies “from a legitimate source for the purpose of searching for text and data included in or related to scientific publications for research purposes.” Article 22(2)(14) of the Ukraine Copyright Law appears to permit only the assembly of a corpus for the purpose of searching for information, not the sort of computational analysis necessary for training AI. Further, the corpus could contain only scientific publications. Like Article 4 of the EU DSM Directive, “this provision shall apply if the use of works has not been expressly prohibited by copyright holders in an appropriate manner, in particular, by computer-readable means from digital content available on the Internet.”

United States. Although the United States does not have a TDM exception, the Librarian of Congress in the triennial section 1201 rulemaking adopted exemptions on the prohibition on the circumvention of technological protection measures for the purpose of TDM relating to motion pictures and literary works. Specifically, the exemption applies when the circumvention is undertaken by “a researcher affiliated with a nonprofit institution of higher education, or by a student or information technology staff member of the institution at the direction of such researcher, solely to deploy text and data mining techniques on a corpus” of motion pictures and literary works “for the purpose of scholarly research and teaching.” 37 CFR §§ 201.40(b)(4) and (5).  The Librarian issued the exemptions based on the recommendation of the Register of Copyrights, who found that the proposed TDM activities would likely constitute a fair use under Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), and Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015). The scope of the section 1201 exemptions is somewhat broader than the scope of Article 3 of the EU DSM Directive in that the section 1201 exemptions applies to “scholarly research and teaching,” while Article 3 applies only to scientific research. The section 1201 exemptions would apply to the training of generative AI models only when the researcher could show that she was performing the activity for the purpose of scholarly research or teaching.

Conclusion

Article 4 of the EU DSM Directive, Sections 243-44 of the Singapore Copyright Act, and Article 30-4(ii) of the Japan Copyright Act contain exceptions for TDM broad enough to encompass the training of generative AI models. Article 3 of the EU DSM Directive and Article 29A of the UK copyright law would also allow TDM for the training of generative AI models for scientific research. Similarly, the section 1201 exemptions granted by U.S. Librarian of Congress would apply to the training of generative AI models only when the researcher could show that she was performing the activity for the purpose of scholarly research or teaching. The TDM provision in Ukraine, however, would not appear to permit use in training AI models.

Link to the rest at InfoJustice.org

Artificial Intelligence Raises Questions On Intellectual Property And Ownership

From Texas A&M Today:

The battle over intellectual property (IP) ownership and the use of artificial intelligence (AI) continues as high-profile authors like George R.R. Martin are suing OpenAI for copyright infringement. Additionally, a major factor in the WGA/SAG-AFTRA strikes has been negotiating protections of writer’s contributions and actor’s likenesses. Even tattoo artists are questioning whether their works on celebrities can be reproduced in video games. The latest development concerns feeding literature into AI to train language models using the IP of writers without their consent.

To further understanding of this complex issue, Texas A&M University professor Dr. Peter Yu provides insight on IP, legal concepts and ownership when it comes to artificial intelligence. Yu, Regents Professor of Law and Communication and director of the Center for Law and Intellectual Property, also holds dual appointments in the Department of Communication and Journalism and the School of Law.

What is IP? Does it include art and literature?

IP covers everything from literary and artistic works to pharmaceutical products to trademarked logos. Many use this term to refer to creations of the mind. When used in a non-legal context — for example, in day-to-day discussion of movies or video games — the term “IP” sometimes carries a broader coverage than specified by law. IP law carefully delineates the boundaries of protection and the conditions under which protected works can be used without authorization — for example, when a Texas A&M student makes a fair use of a copyrighted textbook.

Is there a difference between sharing, referencing, being inspired by or “using” another’s IP?

How we use another’s IP can affect different branches of IP law or varying types of IP right. In U.S. copyright law, for example, referencing or “being inspired by” (without copying) never amounts to infringement. Sharing, however, may infringe on the reproduction right, the distribution right or other rights, depending on the circumstances.

One area that has garnered growing attention involves the creation of works in the style of another author or artist — for example, using AI to create songs imitating those performed by the Beatles, BTS or Drake. While copyright law generally does not protect genres and styles, the right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, voice or other personal attributes. Indeed, the past few months have seen some interesting discussion about whether we should expand the right of publicity or create a new sui generis (“of its own kind”) right to protect authors and artists against AI-generated imitative works.

How does AI affect IP law and ownership?

Among the different areas of IP law, copyright is the most relevant to art and literature. AI has raised at least three distinct issues in this area. Although this issue has sparked a spirited debate about the future of copyright protection, courts and the Copyright Office agree that these creations receive no copyright protection.

The second issue pertains to what policymakers and commentators have referred to as “ingestion” — whether copyrighted works can be used as to train AI systems without the authorization of copyright holders. Feeding A Game of Thrones and other books written by George R.R. Martin into an AI system as training data will help the system learn how humans communicate — and, more specifically, how Martin uses language to tell his stories.

Based on current law, using a copyrighted work to train an AI system is unlikely to constitute copyright infringement, especially if that system has not retained a copy of the original work after completing the training process. However, there remains wide disagreement over whether an AI system is allowed to generate without authorization creations that are substantially similar to those copyrighted works on which the system was trained. There are ongoing lawsuits targeting the unauthorized use of copyrighted works as training data, including the one filed against Open AI by Martin, John Grisham and other high-profile authors. These cases will shed light on this debate.

The final issue involves the use of AI in the IP environment — for example, for securing, managing or enforcing IP rights. While it is exciting to use AI to determine whether a copyrighted work is protectable or has been infringed, many people understandably will find it disconcerting when AI systems take over decisions that have been traditionally made by the Copyright Office or federal judges. Also well documented are the biases found in AI systems, many of which remain elusive and difficult to correct.

Link to the rest at Texas A&M Today

UK: Society of Authors Questions Spotify’s Publisher Deals

From Publishing Perspectives:

In a statement provided to Publishing Perspectives for today’s report (October 11), the 12,400-member Society of Authors in London is expressing “deep concern” in learning from press reports last week that ‘all major book publishers’ have agreed new limited streaming deals with Spotify.’”

As our readership knows, Spotify CEO Daniel Ek led an invitational press conference on October 3, announcing the opening in Australia and the United Kingdom of its premium audiobook offer. The move is said by the company to make available at least 150,000 audiobooks as part of Spotify Premium subscriptions, subscribers receiving 15 hours of listening time monthly.

As Anne Steele pointed out in her article for the Wall Street Journal, Spotify says it has made agreements with the Big Five publishing houses and many independent publishers.

“As far as we are aware,” the society’s leadership writes, “no authors or agents have been approached for permission for such licenses, and authors have not been consulted on license or payment terms.”

“Publishing contracts differ but in our view, most licenses given to publishers for licensing of audio do not include streaming. In fact, it is likely that streaming was not a use that had been invented when many such contracts were entered into.”

. . . .

“We know the devastating effect that music streaming has had on artists’ incomes,” the Society’s statement reads, “and the impact of streaming and subscription video on demand platforms on screenwriter incomes and their working conditions. We have long been concerned about streaming models for books.

“The streaming of audiobooks competes directly with sales and is even more damaging than music streaming because books are typically only read once, while music is often streamed many times.”

. . . .

The organization references Sian Bayley’s October 3 announcement story at The Bookseller in making its point.

In that article, as the Society of Authors points out, Bayley wrote, “Book publishers have long expressed reservations about subscription deals for digital content, but Spotify has offered variations of the typical pooled income arrangement, with a more limited offer that publishers believe will assure agents and authors that their income streams will not be undermined.”

The Society of Authors statement goes on even to allude to what might be an appearance of collusion, writing, “Authors and agents have simply not been contacted about such offers, let alone reassured. The fact that all major publishers have entered such arrangements at the same time seems to raise questions that perhaps should be reported to the competition authorities.”

The Society of Authors then concludes with a concise list of what it sees as its requirements in this development. It writes, “We demand that all publishers:

  • “Inform their authors and agents with full transparency about the deals they have negotiated, to seek permission in full respect of their right not to give permission and to remove their books from the Spotify catalogue.
  • “Negotiate an appropriate share of the receipts on a clear and equitable payment model, which should equate to no less than the amount that would be received from a sale of the same audiobook.
  • “Ensure that with all licenses that Spotify applies frictions, as with e-lending, such as time limited loans and guarantees of payment, whatever proportion of the book is read.
  • “Ensure that licenses are time limited and should not allow sublicensing or use on other platforms.
  • “Indemnify authors if the unauthorized use conflicts with existing film or other such deals, or if it leads to claims of copyright infringement by rights holders of quotations or images included in that.
  • “Ensure that licenses include safeguards to prevent pirating of authors’ and narrators’ works and voices including for use in AI systems.”

The controversy here is based in serious considerations about how authors, their literary agents, publishers, and distributors handle the agreements behind the kind of offer Spotify and others may make to consumers for streaming access to copyrighted content.

Link to the rest at Publishing Perspectives

PG doesn’t know more about the details of the streaming agreements signed by publishers or how publishers think they are entitled to grant licenses to Spotify for streaming or how publishers intend to compensate authors and audiobook narrators for the rights they are purporting to grant to Spotify.

PG speculates that publishers have the idea that there is no real difference between the sale of audiobooks under existing publishing agreements with authors and narrators and what they’re planning to do with Spotify.

Will revenues received by the publisher from Spotify be broken down by author and book title? What happens when a Spotify user streams 20% of an audiobook? In a more conventional audiobook sales environment, when a reader acquires an audiobook, the reader pays a lump sum and the author’s royalties are calculated and paid as a percentage of that sum.

A typical publishing contract permits the author to conduct an audit of the publisher’s sales records for the books the publisher has under contract. Typically, the author is entitled to perform the audit in person or designate an individual, individuals or an accounting firm (usually through its auditing department) to perform the audit on behalf of the author.

PG has always believed that the audit rights in a publishing contract include not only the sales records of the publisher with respect to the author’s books but all of the contracts the publishers have made with book wholesalers, bookstores and bookstore chains, etc.

Audiobooks have their own licensing issues that are different from those for printed books and ebooks.

The right to create and sell an audiobook is a derivative right owned by the author of a book and can be licensed by the author separately from the license to “sell” an ebook or a printed book.

An audiobook requires a narrator. Absent a contract stating differently, the narrator has exclusive rights to the audio narration he/she has performed.

Someone needs to create a recording of the narrator. Whoever creates the recording – turning on an audio recorder or overseeing the recording process as it takes place to make certain the recording is audible and meets commercial standards for the audiobook industry. The creator of the recording is the owner of that recording, absent a written contract granting the author or publisher the ownership rights to the recording, including the right to create duplicate recordings that can be sold/licensed to audiobook purchasers.

If music or bits of music are added to the audio, the composer and performers of the music are the owners of their own creation and performance rights, etc. etc.

Why a Little-Known Copyright Case May Shape the Future of AI

PG thought he had blogged about this case before but couldn’t find any evidence of doing so when he searched TPV.

From Copywrite Lately:

While a flurry of AI copyright lawsuits from prominent authors and artists grab headlines, another case has quietly taken something more important: a head start.

Even die-hard copyright geeks would be forgiven for overlooking a lawsuit first filed over three years ago by information services company Thomson Reuters against AI start-up Ross Intelligence. That’s because the case involves Westlaw, a legal research tool that’s about as sexy as the underwear section in a 1940s Sears catalog. I say this with peace and love as a longtime Westlaw user, but let’s be honest—headnotes and key numbers are simply no match for the likes of Sarah Silverman and John Grisham.

It’s time to start paying attention though, because a Delaware District Court judge just ordered this low-profile AI case to trial, largely denying the parties’ motions for summary judgment on copyright infringement and fair use (read the opinion here). This means that a jury could weigh in on some of the thorniest copyright questions involving artificial intelligence as early as May 2024.

Thomson Reuters v. Ross Intelligence

The issues at play in Thomson Reuters v. Ross Intelligence largely mirror those I’ve discussed in connection with recent class action copyright lawsuits filed against the creators of Stable Diffusion, ChatGPT and other generative AI tools. In a nutshell, plaintiffs allege that Ross hired a third-party contractor to unlawfully copy Westlaw content—including its proprietary Key Number System and case headnotes—in order to train Ross’s own AI-driven natural language legal search engine.

Unlike the creative works ingested by AI tools in the recent lawsuits filed against OpenAI and Stability AI, the copyrights in Westlaw are more limited. Thomson Reuters doesn’t own any of the underlying judicial opinions that make up its database. It does, however, claim copyright in its keynote organization system as well as its original case summaries and headnote descriptions. These “editorial enhancements” are drafted by the company’s attorney-editors in what I’d imagine is the most thankless job this side of working for Louis Litt.

But according to Ross, it wasn’t interested in the Westlaw key numbers or headnotes. Instead, the goal of its system was for users to ask questions and for the search engine to spit out quotations directly from judicial opinions—no commentary necessary. In other words, Ross contends that the output of its tool won’t infringe any original copyrighted material owned by Thomson Reuters, notwithstanding the so-called “intermediate copies” of West’s key numbers and headnotes that may have been made to initially train Ross’s dataset. These copies, Ross claims, are fair use.

In January, Thomson Reuters moved for summary judgment on its copyright infringement claim, and both sides moved for summary judgment on Ross’s fair use defense.

Judge Stephanos Bibas ultimately declined to determine the scope of protection to be given the Key Number System or to decide whether Westlaw’s headnotes added sufficient non-trivial material to the underlying judicial opinions to meet copyright’s originality threshold. While the court did find that Ross committed an act of “actual copying” by scraping and reproducing headnotes during the AI training process, whether that copying constitutes infringement will depend on whether or not the headnotes are protected expression. That issue will be decided by a jury.

The court likewise ruled that a jury needs to decide whether there are substantial similarities in protectable expression (as opposed to unprotectable material) between Westlaw’s headnotes and summaries and thousands of “bulk memos” created by Ross’s third-party contractor to train Ross’s AI tool.

Fair Use

The court found disputed issues of fact on all four fair use factors, meaning that a jury will be tasked with answering most of the questions underlying this key defense.

The Purpose and Character of the Use

Interestingly, the court’s first factor analysis largely focused, not on the commercial nature of Ross’s competing tool, but on disputes over whether Ross’s copying was transformative—an inquiry that some observers (but, ahem, not this one) thought would take a backseat following the Supreme Court’s recent Warhol decision.

Judge Bibas noted that whether Ross’s so-called “intermediate copying” (copies made during the input stage of the training process) was transformative would depend on the precise nature of Ross’s actions: “It was transformative intermediate copying if Ross’s AI only studied the language patterns in the headnotes to learn how to produce judicial opinion quotes.” If, on the other hand, “Thomson Reuters is right that Ross used the untransformed text of headnotes to get its AI to replicate and reproduce the creative drafting done by Westlaw’s attorney-editors,” then the copying would weigh against a transformative fair use. This raised a material question of fact that a jury needs to decide.

The Nature of the Copyrighted Work

While declining to definitively rule that Westlaw’s headnotes were too unoriginal to satisfy the second fair use factor, the judge certainly signaled that he didn’t think plaintiffs’ contributions were at the “core of intended copyright protection,” and specifically distinguished them from “traditionally protected materials, such as literary works or visual art.”

The Amount and Substantiality of the Copying

Because it was unclear how much of Ross’s copying was of protectable expression, the court found that a jury would need to decide the third fair use factor too. Interestingly, the court also noted that copying could be deemed insubstantial if Ross’s AI actually works in the way the company claimed—i.e., if the tool outputs only the unprotectable judicial opinion, not any original expression. This suggests that the presence or absence of substantial similarity at the output stage may influence the court’s input stage rulings as well.

The Effect of the Use Upon the Market for the Work

Finally, on the fourth fair use factor, the court declined to decide whether Ross’s use of Westlaw’s material had a “meaningful or significant effect” on the value of the original or its potential market. Focusing not merely on economic effects, but “public benefits” of the copying, the court concluded that a jury would be best situated to answer these questions:

Link to the rest at Copywrite Lately

The OP brought to mind a case decided a very long time ago (BI – Before Internet) that caused PG to write an article for a legal publication. PG’s article was titled “Who Owns the Law?”

One problem with BI writings is that PG has not been able to locate an online copy of “Who Owns the Law?”

Basically, the copyright issue he wrote about BI was more than a little similar to the dispute described in the OP.

In PG’s ancient article, he wrote about West Publishing, now owned by the same Thomson Reuters mentioned in the OP.

Way back when, West was a closely-held and secretive company that claimed broad copyright protection for the volume and page numbers universally used by lawyers and judges to identify state and federal court opinions West published in printed form.

Here’s an example of a case citation:

Stearns v. Ticketmaster Corp., 655 F. 3d 1013 (9th Cir. 2011)

West assigned the 655 F. 3d 1013 portion of the citation. (Translated, it means the volume (655), reporter (F. 3d, which is an abbreviation for Federal Reporter, Third Series) and page number in volume 655, (1013) where the printed case may be found.

(The Federal Reporter series of books is reserved for decisions from the various United States Court of Appeals, the second-highest courts in the United States. 9th Cir means the decision was handed down by the 9th Circuit Court of Appeals. There are twelve regional circuits that cover the United States. The 9th Circuit is geographically the largest of the circuits by a large margin. It includes the states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska and Hawaii. The 9th Circuit also includes Guam, and the Northern Mariana Islands.) (You’ve taken your first steps toward mastering legal research.)

West’s copyright rationale was that the company fixed the sort of typos and citation errors that were embarrassingly common during those times before spell check. West further added page numbers to the thick books containing lots of court opinions that the company printed.

West also added a short summary describing what the court case was all about. West also had (and may still have) an enormous outline of the law, which it called the West Key Number System. Its attorneys would go through each case and identify portions that correlated with its Key Number System for other court cases.

From an attorney’s point of view, if you found a case opinion similar to the one you were working on that included a West Key Number citation, you could look up that Key Number Citation and, hopefully, find a number of in-state and federal case opinions addressing issues you were working on at the moment. In some instantiations, the West Key Number index would also show you case opinions in other jurisdictions, which might suggest a line of legal argument for the hometown case you were handling.

The Key Number system was rendered obsolete almost immediately when online search systems were published that allowed an attorney to perform Boolean searches against all decisions rendered by courts in the jurisdiction. As extensive as West’s Key Number system was, it was a blunt instrument when computerized legal research came on the scene.

Additionally, West printed the cases in thick books with page numbers. Lawyers used the West page numbers in their court papers to point the judge to the particular portion of the case opinion they wanted the judge to examine.

This made it more likely that the judge would tell his judicial clerk or secretary to get a copy of a case or, at least, copies of the pages the attorney wanted the judge to read that were buried in a 50-page appellate case opinion.

A technology company then called Mead Data Central, later changed to Lexis-Nexis, referring to the Lexis online research system for lawyers and the Nexis news, magazine, academic journal, scientific publications, etc. repository that had the same computer search capabilities as were used by Lexis.

Lexis basically tore apart every West book full of court opinions, state and federal statutes and other similar collections of federal, state and local government publications that lawyers would find helpful.

After removing the materials West had added to the original government documents, Lexis sent the judicial opinions, statutes, etc., offshore, where a zillion less-expensive fingers and thumbs keyboarded them into the Lexis-Nexis computer systems. The computer systems made the electronic copies of the documents searchable.

West sued Mead Data Central, the owner of Lexis, for copyright infringement.

Mead said these were public documents and West couldn’t assert copyright protection for government documents prepared by government employees.

West said that its case citations and page numbers were copyrighted because West had developed a system of organization and included page breaks and page numbers that weren’t in the original court documents. The fact that inserting page numbers required no creativity activity that Congress intended to encourage with copyright laws didn’t bother West. It worked hard to do a good job, and Lexis shouldn’t be able to steal West’s hard work.

The hometown trial judge bought West’s dubious theory and agreed that the data West used- the words included in court opinions and government documents – were in the public domain and unprotected by copyright law. However, the hometown judge held that “the (West) arrangement and pagination of this public material reflects the skill, discretion and effort of the person crafting the arrangement.”

In other words, West didn’t own the words, but, by working hard to insert page numbers and put the cases from Alaska into a different printed book than the cases from California (“by the sweat of the West’s brow”), West was entitled to copyright to volume and page numbers in its case publications.

Since lawyers had used case numbers and page citations in documents submitted to the court to point the judge to the location of the particular court case the lawyers wanted the judge to consider out of a library full of books containing thousands of court cases (Judges don’t respond well to requests from lawyers to “Look it up yourself.”) West had built an effective monopoly on the way judges and lawyers had established so each group could do their jobs.

Mead appealed, and West, realizing that, sooner or later, some appellate court would reverse earlier court decisions, entered into a super-secret settlement agreement that effectively allowed Mead the right to use West case numbers and page numbers.

As mentioned, PG worked for Lexis a long time ago but never persuaded corporate counsel to let him see a copy of the West settlement documents. PG quickly realized that one reason for the secrecy was that the settlement provided West and Lexis with a shared monopoly on case citations.

George R.R. Martin and other authors sue OpenAI for copyright infringement

From The Verge:

More authors sued OpenAI for copyright infringement, joining other writers in pursuing legal action against generative AI companies for using their books to train AI models.

The Authors Guild and 17 well-known authors like Jonathan Franzen, John Grisham, George R.R. Martin, and Jodi Picoult filed the lawsuit in the Southern District of New York. The plaintiffs hope to get the filing classified as a class action.

According to the complaint, OpenAI “copied plaintiffs’ works wholesale, without permission or consideration” and fed the copyrighted materials into large language models.

“These authors’ livelihoods derive from the works they create. But the Defendant’s LLMs endanger fiction writers’ ability to make a living in that the LLMs allow anyone to generate — automatically and freely (or very cheaply) — text that they would otherwise pay writers to create,” the lawsuit said.

The authors added that OpenAI’s LLMs could result in derivative work “that is based on, mimics, summarizes, or paraphrases” their books, which could harm their market.

OpenAI, the complaint said, could have trained GPT on works in the public domain instead of pulling in copyrighted material without paying a licensing fee.

OpenAI said in a statement to The Verge that the company is optimistic it is “having productive conversations with my creators around the world, including the Authors’ Guild, and have been working cooperatively to understand and discuss their concerns about AI.”

“We’re optimistic we will continue to find mutually beneficial ways to work together to help people utilize new technology in a rich content ecosystem,” the company said.

Link to the rest at The Verge

I think copyright is moral, proper

I think copyright is moral, proper. I think a creator has the right to control the disposition of his or her works – I actually believe that the financial issue is less important than the integrity of the work, the attribution, that kind of stuff.

Esther Dyson

AI Update: Copyright And Other Things

From Kristine Kathryn Rusch:

It is probably not a bright idea for me to write this post. I finished it a few days ago, and things changed. You Patreon folk will see it at least a week before the website folk, and by then, I expect everything to be different again. So I’ll be updating it. Those of you hearing it on audio will hear a version recorded in the middle of September. Sorry about that.

Anyway…

At the beginning of September, Can Stock Photo announced it was going out of business. I have used Can Stock Photo since 2009 to source the art you usually find at the top of this blog. When AI art became good enough to pass as regular art, I got a lot more cautious with the downloads for reasons I’ll discuss later in this post.

What I did on Can Stock Photo, and apparently, what I’ll do going forward on a different site, is that I would only use art uploaded before 2020 or so. That way, I knew the art was the work and property of the artist, and not created by some website that more than likely stole someone’s artwork to train the bots.

I can’t improve on Can Stock’s words in their closing notice:

After nearly 20 years in business we have been forced to make this very difficult decision and would like to thank our many thousands of talented contributors and customers for making it possible. The industry has changed significantly over this time, with CanStock launched in 2004 during the early mass adoption of digital cameras, and before ‘social media’ was even a phrase. Today of course everyone has a capable digital camera in their pocket, and the advent of AI means amazing images can be created for free from programs with just a few keywords. Decreased business and increasing costs has made it no longer possible to keep operating, to our great disappointment.

In theory, the licenses that every person who used Can Stock Photo agreed to will remain in effect, although the prudent thing to do is download the license for each piece of art used, particularly on those used in for-profit ventures, like covers and the like.

You should be doing that anyway. When you contract with an artist, it should be a valid contract. When you download art from a commercial site, you should also download the license for that art. It’s easier and better for all around to keep these licenses in two files, one on your computer and one in paper…because, yes, folks, computers die, programs disappear, and sometimes you can’t access something you downloaded ten years ago because the programs have changed so much that the files are no longer compatible.

What remains compatible? Paper.

Why would you want to do this? Well, we’ve been reviewing our licenses at WMG Publishing, some twelve years old, because we’re opening stores with merchandise. Most of our covers come from artists like Philcold, whom we found on Dreamstime, and then worked with directly for projects like my Diving series and Dean’s Seeders series.

Not every license allows for merchandise. Many don’t even allow book covers over a certain number of sales. A lot of writers who are careless about such matters simply make an assumption that they have the right to use these things.

They don’t. And to make matters worse, the licenses and terms change all the time. So if you go on, say, Dreamstime, to look at the license today for something you licensed in 2015, today’s license does not cover the 2015 download. What covers the 2015 download is the 2015 license that existed on the day you downloaded the art.

Yes, some sites save their previous licenses, and some sites don’t. It is up to you to know what, exactly, you licensed.

Then you need to understand it. It isn’t something that’s a one and done. Copyright law shifts all the time. That’s why I took a two-semester class in copyright law at University of Nevada, Las Vegas, in 2021. I know copyright, but I don’tknow all of it. I have a current copy of The Copyright Handbook, and I use it.  I also keep track of various court cases and read a lot of law blogs on copyright.

That does not make me an expert or an intellectual property attorney. I’m not even close. But I am informed because this is my business. It’s my job to stay ahead of everything that’s going on.

And a lot is happening on the copyright front with the copyright of works that incorporate artificial intelligence.

In an important case that came down in August, Judge Beryl A. Howell of the US District Court for the District of Columbia ruled with the copyright office and against a computer scientist who claimed that a two-dimensional piece of art created by his AI program deserved copyright protection.

The essence of Howell’s decision, as explained by Bloomberg Law, is this:

Howell found that “courts have uniformly declined to recognize copyright in works created absent any human involvement,” citing cases where copyright protection was denied for celestial beings, a cultivated garden, and a monkey who took a selfie.

The ruling is the first in the country to examine whether or not AI art is copyrightable. That’s iimportant because, for now, that and the ruling from the copyright office are the guide. As Howell herself noted in the decision, there’s a lot more for the courts to decide. She wrote:

Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an“author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works,how copyright might best be used to incentivize creative works involving AI, and more.

But these issues aren’t settled yet, and might not be settled for years. The way that novel questions of the law get settled in the United States is for them to wend their way through the courts. Sometimes the appellate courts agree, and then the issues are decided.

Occasionally, though, the issues are so complex and the courts are so divided that the issues will make their way to the United States Supreme Court. Unless that happens in an expedited manner, issues like that won’t see a resolution for eight to ten years, maybe more.

Link to the rest at Kristine Kathryn Rusch

Along with Kris, PG recommends The Copyright Handbook, published by Nolo Press as a good acquisition for an author’s library. It’s written with laypersons in mind. Much of the book is not difficult for a non-lawyer to read and digest.

One of the benefits of The Copyright Handbook for an author is issue-spotting. The book may help the author to suspect that she/he/they are on slippery ground or that they’re getting into an area that might end up being slippery.

That said, The Copyright Handbook is not a substitute for a competent attorney for anything but the simplest copyright questions/issues. (PG thinks he’s still competent on most days, but he’s no longer a practicing attorney.)

Authors are losing their patience with AI, part 349235

From TechCrunch:

On Monday morning, numerous writers woke up to learn that their books had been uploaded and scanned into a massive dataset without their consent. A project of cloud word processor Shaxpir, Prosecraft compiled over 27,000 books, comparing, ranking and analyzing them based on the “vividness” of their language. Many authors — including Young Adult powerhouse Maureen Johnson and “Little Fires Everywhere” author Celeste Ng — spoke out against Prosecraft for training a model on their books without consent. Even books published less than a month ago had already been uploaded.

After a day full of righteous online backlash, Prosecraft creator Benji Smith took down the website, which had existed since 2017.

“I’ve spent thousands of hours working on this project, cleaning up and annotating text, organizing and tweaking things,” Smith wrote. “But in the meantime, ‘AI’ became a thing. And the arrival of AI on the scene has been tainted by early use-cases that allow anyone to create zero-effort impersonations of artists, cutting those creators out of their own creative process.”

. . . .

Smith’s Prosecraft was not a generative AI tool, but authors worried it could become one, since he had amassed a dataset of a quarter billion words from published books, which he found by crawling the internet.

Prosecraft would show two paragraphs from a book, one that was “most passive” and one that was “most vivid.” It then placed the books into percentile rankings based on how vivid, how long or how passive it was.

. . . .

“If you’re a writer as a career it’s maddening, in part because style is not the same as writing a ****** whitepaper for a business that needs to be in active voice or whatever,” author Ilana Masad said. “Style is style!”

. . . .

“Since I was only publishing summary statistics, and small snippets from the text of those books, I believed I was honoring the spirit of the Fair Use doctrine, which doesn’t require the consent of the original author,” Smith wrote. Some authors noted that the excerpts of their books on Prosecraft included major spoilers, causing further frustration.

Though Smith apologized, authors remain exasperated. For artists and writers, the recent proliferation of AI tools has created a deeply frustrating game of whack-a-mole. As soon as they opt out of one database, they find that their work has been used to train another AI model, and so on.

“It’s pretty much the norm, from what I can tell, for these sites and projects to do whatever they’re doing first and then hope that no one notices and then disappear or get defensive when they inevitably do,” Masad said.

Generative AI and the technology behind self-publishing have created a perfect storm for scammy activities. Amazon has been flooded with low-quality, AI-generated travel guides, and even AI-generated children’s books. But tools like ChatGPT are basically trained on the sum total of the internet, so this means that real travel writers or children’s books authors could be getting inadvertently plagiarized.

Author Jane Friedman wrote in a recent blog post — titled “I’d Rather See My Books Get Pirated Than This” — that she is being impersonated on Amazon, where someone is selling books under her name that appear to be written with an AI.

Though Friedman was successful in getting these fake books removed from her Goodreads page, but Amazon initially told her it wouldn’t remove the books for sale unless she had a trademark for her name.

After Friedman’s post went viral, Amazon removed the misleading books.

Amazon spokesperson Ashley Vanicek told TechCrunch: “We have clear content guidelines governing which books can be listed for sale and promptly investigate any book when a concern is raised. We welcome author feedback and work directly with authors to address any issues they raise and where we have made an error, we correct it. We invest heavily to provide a trustworthy shopping experience and protect customers and authors from misuse of our service.”

Though both Prosecraft and Amazon ended up capitulating to writers’ requests, there are many other cases in which writers’ concerns aren’t heard — disputes over the use of AI are one reason why Hollywood writers are currently striking, for example.

Link to the rest at TechCrunch

PG notes that the OP was published on August 7, 2023.

In the intervening time period of almost two months, AI has moved so quickly that the complaints and responses seem somewhat out of date.

PG posits that there will still be a great many human writers using their brains AKA Wetware to create interesting and commercially successful books.

He also posits that there will certainly be litigation regarding the way creators of AI programs use books, magazines, anything with words in it, to provide grist for the AI’s mill.

PG predicts there will be some very good and insightful court decisions and some unusual and strange court decisions. 90% of the judges sitting on the bench in federal and state court systems are pretty weak when it comes to complex technology, and few technologies are more complex than AI.

PG predicts that AI is just getting warmed up, and the capabilities and complexity of future AI programs will make many current AI systems look pretty elementary and crude by comparison.

PG doesn’t do litigation anymore, but if he was still litigating, and if he were representing someone in an AI intellectual property lawsuit, he would think long and hard about a variety of striking analogies that apply to AI.

His reason for doing so is that a compelling (and accurate) analogy or group of analogies will be quite important in laying out the facts and arguments of the case in the judge’s mind.

If he persuaded the judge that his analogies were accurate, then applying relevant laws and prior court opinions become much easier and more persuasive.

Spinning off the top of his head, PG might ask himself whether an AI program is more like a giant library or more like a very intelligent individual who has read all the books in the library and is using that information as a foundation for generating new and previously unconsidered or undiscovered ideas and expressions of ideas.

PG suggests that “inspired by” is an easily understood and well-established way that new creations have been made for centuries.

Here are the first two stanzas of the poem titled, The Truly Great, by Stephen Spender:

I think continually of those who were truly great.
Who, from the womb, remembered the soul’s history
Through corridors of light, where the hours are suns,
Endless and singing. Whose lovely ambition
Was that their lips, still touched with fire,
Should tell of the Spirit, clothed from head to foot in song.
And who hoarded from the Spring branches
The desires falling across their bodies like blossoms.

What is precious, is never to forget
The essential delight of the blood drawn from ageless springs
Breaking through rocks in worlds before our earth.
Never to deny its pleasure in the morning simple light
Nor its grave evening demand for love.
Never to allow gradually the traffic to smother
With noise and fog, the flowering of the spirit.

Here’s an excerpt from another poem that illustrates the “inspired by” meme, Ode on a Grecian Urn, by John Keats. The narrator (or perhaps Keats) is carefully examining a beautiful ancient Greek artwork – an urn on display somewhere, perhaps in a museum. The poem is a record of some of the thoughts and feelings that come to the observer’s mind and heart during this examination.

Thou still unravish’d bride of quietness,
Thou foster-child of silence and slow time,
Sylvan historian, who canst thus express
A flowery tale more sweetly than our rhyme:
What leaf-fring’d legend haunts about thy shape
Of deities or mortals, or of both,
In Tempe or the dales of Arcady?
What men or gods are these? What maidens loth?
What mad pursuit? What struggle to escape?
What pipes and timbrels? What wild ecstasy?

Heard melodies are sweet, but those unheard
Are sweeter; therefore, ye soft pipes, play on;
Not to the sensual ear, but, more endear’d,
Pipe to the spirit ditties of no tone:
Fair youth, beneath the trees, thou canst not leave
Thy song, nor ever can those trees be bare;
Bold Lover, never, never canst thou kiss,
Though winning near the goal yet, do not grieve;
She cannot fade, though thou hast not thy bliss,
For ever wilt thou love, and she be fair!

Ah, happy, happy boughs! that cannot shed
Your leaves, nor ever bid the Spring adieu;
And, happy melodist, unwearied,
For ever piping songs for ever new;
More happy love! more happy, happy love!
For ever warm and still to be enjoy’d,
For ever panting, and for ever young;
All breathing human passion far above,
That leaves a heart high-sorrowful and cloy’d,
A burning forehead, and a parching tongue.

Getty Images Launches Commercially Safe Generative AI Offering

From Getty Images:

Trained on Getty Images’ world‑class creative content, Generative AI by Getty Images allows customers to explore the power of generative AI with full protection and usage rights

New York – September 25, 2023: Getty Images (NYSE: GETY), a preeminent global visual content creator and marketplace, today announced the launch of Generative AI by Getty Images, a new tool that pairs the company’s best‑in‑class creative content with the latest AI technology for a commercially safe generative AI tool.

Generative AI by Getty Images is trained on the state‑of‑the‑art Edify model architecture, which is part of NVIDIA Picasso, a foundry for generative AI models for visual design. The tool is trained solely from Getty Images’ vast creative library, including exclusive premium content, with full indemnification for commercial use. Sitting alongside the company’s broader, industry‑leading services, Generative AI by Getty Images works seamlessly with the company’s expansive library of authentic and compelling visuals and Custom Content solutions, allowing customers to elevate their entire end‑to‑end creative process to find the right visual content for any need.

. . . .

Customers creating and downloading visuals through the tool will receive Getty Images’ standard royalty‑free license, which includes representations and warranties, uncapped indemnification, and the right to perpetual, worldwide, nonexclusive use in all media. Content generated through the tool will not be added into existing Getty Images and iStock content libraries for others to license. Further, contributors will be compensated for any inclusion of their content in the training set.

“We’ve listened to customers about the swift growth of generative AI – and have heard both excitement and hesitation – and tried to be intentional around how we developed our own tool,” said Grant Farhall, Chief Product Officer at Getty Images. “We’ve created a service that allows brands and marketers to safely embrace AI and stretch their creative possibilities, while compensating creators for inclusion of their visuals in the underlying training sets.”

. . . .

Customers will soon be able to customize Generative AI by Getty Images with proprietary data to produce images with their unique brand style and language. 

Link to the rest at Getty Images

PG has previously suggested that the owners of images used to train an AI are likely not going to be able to pursue a claim for copyright infringement effectively.

That said, large business organizations and their legal departments will be able to use Getty’s AI system without concerns about claims of copyright infringement by the owners of the images used provide grist for Getty’s AI mill.

Generative AI vs. Copyright

From Publishers Weekly:

The balance between copyright and free speech is being challenged by generative AI (GAI), a powerful and enigmatic tool that mimics human responses to prompts entered into an internet search box. The purpose of copyright law, according to the U.S. Constitution, is “to promote the Progress of Science and useful Arts, by securing to Authors and Inventors the exclusive Right to their exclusive writings.” The problem is that GAI’s ability to incentivize progress and innovation threatens the entertainment industry’s dependence on copyright to protect creative works.

Copyright law strikes a balance between those who create content and the public’s interest in having wide access to that content. It does this via granting authors a limited monopoly over the dissemination of original works by giving them the exclusive right to reproduce, distribute, and create derivative works based on copyrighted material. However, the concept of exclusive rights doesn’t really apply to artificially intelligent robots and computers scraping ideas and facts from public websites.

Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement. To prove copyright infringement, one must prove that the defendant had access to the copyrighted work and that the defendant’s work is substantially similar to protected aspects of the first work.

For AI output to infringe upon a book, it must have taken a substantial amount of copyrightable expression from the author’s work. When it comes to text, GAI is an artful plagiarist. It knows how to dance around copyright. The predictive model emulates, it doesn’t copy. Insofar as text generated in response to a prompt is not substantially similar—a legal term of art—to the data it is scraping, it is not an infringement. In other words, don’t overestimate the value of litigation.

The fair-use doctrine is another limitation on the exclusive rights of authors. Its purpose is to avoid the rigid application of copyright law in ways that might otherwise stifle the growth of art and science. Fair use is highly fact specific. Which is another way of saying it’s a murky and contentious area of the law.

Several cases decided before the advent of GAI suggest fair use encompasses the ingestion and processing of books by GAI. For example, in 2015, in Authors Guild v. Google, the court ruled that Google’s digitizing of books without consent to create a full-text searchable database that displayed snippets from those titles was a transformative use that served a different purpose and expression than the original books.

Fair use favors transformative uses. However, over time, the concept evolved from using a protected work as a springboard for new insights or critiquing the original to taking someone else’s photographs or other images and including them in a painting and declaring it a fair use.

In 2023, in Andy Warhol Foundation for the Visual Arts v. Goldsmith, the U.S. Supreme Court held that the claim to fairness is severely undermined “where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it.” AI-generated works can devalue human-created content, but is that the kind of economic harm contemplated in the Supreme Court’s decision?

To sum up, on a case-by-case basis, courts must determine if substantial similarity exists and then engage in line drawing—balancing free expression and the rights of creators.

. . . .

In an age of disinformation, an author’s brand, a publisher’s imprint, and the goodwill associated with them are valuable assets. I believe the industry is less vulnerable than many think. But, to quote Nick Lowe, “Where it’s goin’ no one knows.”

Link to the rest at Publishers Weekly

PG notes that the author of the OP is an attorney, so he will cut and paste his disclaimer from the post he just published so no one who reads only this TPV post will not be misled.

PG notes that nothing you read on TPV constitutes legal advice. If you want legal advice, you need to hire a lawyer, not read a blog post.

PG will also note that the OP includes some other suggestions by the author, who is an attorney, which you may want to consider, but hire your own lawyer because, just like PG, the author of the OP is not your attorney and isn’t giving legal advice by writing an article for Publishers Weekly.

Using Generative AI? Consider These 7 Tips From a Legal Expert

From Learn2G2:

As G2’s General Counsel, it’s my job to help build and protect the company, so it’s likely no surprise that generative AI is top of mind for me (and lawyers everywhere!).

While AI presents an opportunity for organizations, it also poses risks. And these risks raise concerns for all business leaders, not only legal departments.

With so much information out there, I recognize these waters can be difficult to navigate. So, to help get to the crux of these concerns and boil them down into a helpful guide for all business leaders, I recently sat down with some of the top minds in the AI space for a round-table discussion in San Francisco.

There, we discussed the changing landscape of generative AI, the laws affecting it, and what this all means for how our businesses operate.

We came to the agreement that, yes, generative AI tools are revolutionizing the way we live and work. However, we also agreed that there are several legal factors businesses should consider as they embark on their generative AI journeys.

Based on that discussion, here are seven things to consider when integrating AI into your company.

Understand the lay of the land

Your first task is to identify whether you’re working with an artificial intelligence company or a company that uses AI. An AI company creates, develops, and sells AI technologies, with AI as its core business offering. Think OpenAI or DeepMind.

On the other hand, a company that uses AI integrates AI into its operations or products but doesn’t create the AI technology itself. Netflix’s recommendation system is a good example of this. Knowing the difference is pivotal, as it determines the complexity of the legal terrain you need to navigate and deciphers which laws apply to you.

G2 lays out the key AI software in this developing field. When you have a bird’s-eye view of the possible tools, you can make better decisions on which is right for your business.

Keep an eye out on the latest developments in the law, as generative AI regulations are on the horizon. Legislation is rapidly developing in the US, UK, and Europe. Likewise, litigation involving AI is actively being decided. Keep in touch with your attorneys for the latest developments.

Choose the right partner, keeping terms of use in mind

You can tell a lot about a company by its terms of use. What does a company value? How do they handle the relationship with their users or customers? The terms of use can serve as a litmus test.

OpenAI, for instance, explicitly states in its usage policies that its technology shouldn’t be used for harmful, deceptive, or otherwise unethical applications. Bing Chat requires users to comply with laws prohibiting offensive content or behavior. Google Bard, meanwhile, focuses on data security and privacy in its terms – highlighting Google’s commitment to protecting user data. Evaluating these terms is essential to ensuring your business aligns with the AI partner’s principles and legal requirements.

We compared the terms of use and privacy policies of several key generative AI players to help us determine which AI tools would work best for our company’s risk profile and recommend you do the same.

Between your company and the AI company, who owns the input? Who owns the output? Will your company data be used to train the AI model? How does the AI tool process, and to whom does it send personally identifiable information? How long will the input or output be retained by the AI tool?

Answers to these questions inform the extent to which your company will want to interact with the AI tool.

Navigate the labyrinth of ownership rights

When using generative AI tools, it’s paramount to understand the extent of your ownership right to the data that you put into the AI and the data that is derived from the AI.

From a contractual perspective, the answers depend on the agreement you have with the AI company. Always ensure that the terms of use or service agreements detail the ownership rights clearly.

For example, OpenAI takes the position that between the user and OpenAI, the user owns all inputs and outputs. Google Bard, Microsoft’s Bing Chat, Jasper Chat, and Anthropic’s Claude similarly each grant full ownership of input and output data to the user but simultaneously reserve for themselves a broad license to use AI-generated content in a multitude of ways.

Anthropic’s Claude grants ownership of input data to the user but only “authorizes users to use the output data.” Anthropic also grants itself a license for AI content, but only “to use all feedback, ideas, or suggested improvements users provide.” The contractual terms you enter into are highly variable across AI companies.

Strike the right balance between copyright and IP

AI’s ability to generate unique outputs creates questions about who has intellectual property (IP) protections over those outputs. Can AI create copyrightable work? If so, who is the holder of the copyright?

The law is not entirely clear on these questions, which is why it’s crucial to have a proactive IP strategy when dealing with AI. Consider whether it is important for your business to enforce IP ownership of the AI output.

Presently, jurisdictions are divided about their views on copyright ownership for AI-generated works. On one hand, the U.S. Copyright Office takes the position that AI-generated works, absent any human involvement, cannot be copyrighted because they are not authored by a human.

Link to the rest at Learn2G2

The article goes on to discuss several other interesting legal and intellectual property points.

PG notes that nothing you read on TPV constitutes legal advice. If you want legal advice, you need to hire a lawyer, not read a blog post.

PG will also note that the OP includes some other suggestions by the author, who is an attorney, which you may want to consider, but hire your own lawyer because, just like PG, the author of the OP is not your attorney and isn’t giving legal advice by writing an online article.

Willingham Sends Fables Into the Public Domain

From These Foolish Games:

Fables Press Release

Subject: Fables Enters the Public Domain

15 September 2023

By Bill Willingham

For Immediate Release

The Lede

As of now, 15 September 2023, the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain. What was once wholly owned by Bill Willingham is now owned by everyone, for all time. It’s done, and as most experts will tell you, once done it cannot be undone. Take-backs are neither contemplated nor possible.

Q: Why Did You Do This?

A number of reasons. I’ve thought this over for some time. In no particular order they are:

1) Practicality: When I first signed my creator-owned publishing contract with DC Comics, the company was run by honest men and women of integrity, who (for the most part) interpreted the details of that agreement fairly and above-board. When problems inevitably came up we worked it out, like reasonable men and women. Since then, over the span of twenty years or so, those people have left or been fired, to be replaced by a revolving door of strangers, of no measurable integrity, who now choose to interpret every facet of our contract in ways that only benefit DC Comics and its owner companies. At one time the Fables properties were in good hands, and now, by virtue of attrition and employee replacement, the Fables properties have fallen into bad hands.

            Since I can’t afford to sue DC, to force them to live up to the letter and the spirit of our long-time agreements; since even winning such a suit would take ridiculous amounts of money out of my pocket and years out of my life (I’m 67 years old, and don’t have the years to spare), I’ve decided to take a different approach, and fight them in a different arena, inspired by the principles of asymmetric warfare. The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.

            I chose to give it away to everyone. If I couldn’t prevent Fables from falling into bad hands, at least this is a way I can arrange that it also falls into many good hands. Since I truly believe there are still more good people in the world than bad ones, I count it as a form of victory.

2) Philosophy: In the past decade or so, my thoughts on how to reform the trademark and copyright laws in this country (and others, I suppose) have undergone something of a radical transformation. The current laws are a mishmash of unethical backroom deals to keep trademarks and copyrights in the hands of large corporations, who can largely afford to buy the outcomes they want.

In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.

Of course, if I’m going to believe such radical ideas, what kind of hypocrite would I be if I didn’t practice them? Fables has been my baby for about twenty years now. It’s time to let it go. This is my first test of this process. If it works, and I see no legal reason why it won’t, look for other properties to follow in the future. Since DC, or any other corporate entity, doesn’t actually own the property, they don’t get a say in this decision.

Q: What Exactly Has DC Comics Done to Provoke This?

Too many things to list exhaustively, but here are some highlights: Throughout the years of my business relationship with DC, with Fables and with other intellectual properties, DC has always been in violation of their agreements with me. Usually it’s in smaller matters, like forgetting to seek my opinion on artists for new stories, or for covers, or formats of new collections and such. In those times, when called on it, they automatically said, “Sorry, we overlooked you again. It just fell through the cracks.” They use the “fell through the cracks” line so often, and so reflexively, that I eventually had to bar them from using it ever again. They are often late reporting royalties, and often under-report said royalties, forcing me to go after them to pay the rest of what’s owed.

            Lately though their practices have grown beyond these mere annoyances, prompting some sort of showdown. First they tried to strong arm the ownership of Fables from me. When Mark Doyle and Dan Didio first approached me with the idea of bringing Fables back for its 20th anniversary (both gentlemen since fired from DC), during the contract negotiations for the new issues, their legal negotiators tried to make it a condition of the deal that the work be done as work for hire, effectively throwing the property irrevocably into the hands of DC. When that didn’t work their excuse was, “Sorry, we didn’t read your contract going into these negotiations. We thought we owned it.”

            More recently, during talks to try to work out our many differences, DC officers admitted that their interpretation of our publishing agreement, and the following media rights agreement, is that they could do whatever they wanted with the property. They could change stories or characters in any way they wanted. They had no obligation whatsoever to protect the integrity and value of the IP, either from themselves, or from third parties (Telltale Games, for instance) who want to radically alter the characters, settings, history and premises of the story (I’ve seen the script they tried to hide from me for a couple of years). Nor did they owe me any money for licensing the Fables rights to third parties, since such a license wasn’t anticipated in our original publishing agreement.

            When they capitulated on some of the points in a later conference call, promising on the phone to pay me back monies owed for licensing Fables to Telltale Games, for example, in the execution of the new agreement, they reneged on their word and offered the promised amount instead as a “consulting fee,” which avoided the precedent of admitting this was money owed, and included a non-disclosure agreement that would prevent me from saying anything but nice things about Telltale or the license.

            And so on. There’s so much more, but these, as I said, are some of the highlights. At that point, since I disagreed on all of their new interpretations of our longstanding agreements, we were in conflict. They practically dared me to sue them to enforce my rights, knowing it would be a long and debilitating process. Instead I began to consider other ways to go.

Q: Are You Concerned at What DC Will Do Now?

No. I gave them years to do the right thing. I tried to reason with them, but you can’t reason with the unreasonable. They used these years to make soothing promises, tell lies about how dedicated they were towards working this out, and keep dragging things out as long as possible. I gave them an opportunity to renegotiate the contracts from the ground up, putting everything in unambiguous language, and they ignored that offer. I gave them the opportunity, twice, to simply tear up our contracts, and we each go our separate ways, and they ignored those offers. I tried to go over their heads, to deal directly with their new corporate masters, and maybe find someone willing to deal in good faith, and they blocked all attempts to do so. (Try getting any officer of DC Comics to identify who they report to up the company ladder. I dare you.) In any case, without giving them details, I warned them months in advance that this moment was coming. I told them what I was about to do would be “both legal and ethical.” Now it’s happened.

            Note that my contracts with DC Comics are still in force. I did nothing to break them, and cannot unilaterally end them. I still can’t publish Fables comics through anyone but them. I still can’t authorize a Fables movie through anyone but them. Nor can I license Fables toys nor lunchboxes, nor anything else. And they still have to pay me for the books they publish. And I’m not giving up on the other money they owe. One way or another, I intend to get my 50% of the money they’ve owed me for years for the Telltale Game and other things.

However, you, the new 100% owner of Fables never signed such agreements. For better or worse, DC and I are still locked together in this unhappy marriage, perhaps for all time.

But you aren’t.

If I understand the law correctly (and be advised that copyright law is a mess; purposely vague and murky, and no two lawyers – not even those specializing in copyright and trademark law – agree on anything), you have the rights to make your Fables movies, and cartoons, and publish your Fables books, and manufacture your Fables toys, and do anything you want with your property, because it’s your property.

Mark Buckingham is free to do his version of Fables (and I dearly hope he does). Steve Leialoha is free to do his version of Fables (which I’d love to see). And so on. You don’t have to get my permission (but you might get my blessing, depending on your plans). You don’t have to get DC’s permission, or the permission of anyone else. You never signed the same agreements I did with DC Comics.

Link to the rest at These Foolish Games and thanks to B. for the tip

PG notes that, absent a provision that specifically prohibits them from being sold, assigned or transferred, most publishing agreements can be assigned/sold to someone the author doesn’t know.

The promises made by employees of publishers regarding ambiguous language in publishing contracts that “we don’t believe that provision means what you think it might mean” or “we would never use this provision in the way you’re suggesting because that wouldn’t be fair to our authors and that’s something we won’t ever do,” while having been accepted by a huge number of traditionally-published authors, are no protection for the author.

As described in the OP, new management or new owners will look to the contract language and, often, give no effect to understandings between the publisher and the author that are not spelled out clearly in the written contracts.

There is an argument to be made that, by the publisher’s earlier voluntary actions, the previous bunch effectively modified the written words of the contract and the former publisher’s purchasers/assignees should be bound by the acts of the previous publisher. However, speaking generally, that’s a desperate legal tactic that may or may not fly, depending on how a judge is feeling on the day she/he hears the case.

That said, most judges on most days will default to looking to the language of the written contract to determine whether the author granted the publisher the right to do what the latest owners of the publisher want to do.

The actions taken by Mr. Willingham, the author of the OP and the creator of the intellectual property under new and unfriendly management, while emotionally understandable, end up trashing the value of Mr. Willingham’s creations.

PG has mentioned the following suggestions far more than once on TPV:

  1. Read every word of the contract. If you don’t understand any portion of the contract, you need to contact a competent attorney who has spent enough time with copyright licenses to know what she/he is doing. (PG used to fall into that category, but he has permanently taken down his shingle and doesn’t practice law any more.)
  2. If you or your attorney objects to any portion of the contract language and the counter-party says something like, “We would never do that” or “We don’t think that provision means what you think it means,” your unfailing response should be some variation of “I’m so pleased to know that. Let’s change the contract language to state the actual ways we’re going to do business with each other to avoid any possible future misunderstandings and keep our business relationship on an amicable basis.”

There are more than a few other things to consider/fix, but the two paragraphs above are the bones of making certain an author signs a fair contract and doesn’t have any nasty surprises with the publisher or whoever manages or buys the publisher in the future.

Why This Award-Winning Piece of AI Art Can’t Be Copyrighted

From Wired:

AN AWARD-WINNING PIECE of AI art cannot be copyrighted, the US Copyright Office has ruled. The artwork, Théâtre D’opéra Spatial, was created by Matthew Allen and came first in last year’s Colorado State Fair. Since then, the piece has been embroiled in a precedent-affirming copyright dispute. Now, the government agency has issued its third and final decision: Allen’s work is not eligible for copyright.

Now, Allen plans to file a lawsuit against the US federal government. “I’m going to fight this like hell,” he says.

The problem? Allen used the generative AI program Midjourney to create his entry, and copyright protections are not extended to artificial intelligence—not even the kind that wows art judges. “It’s in line with previous decisions that require human authors,” says Rebecca Tushnet, a Harvard Law School professor and leading copyright scholar.

It’s a precedent that goes back to 2018 when a photo taken by a macaque was declared public domain because monkeys can’t hold copyright. PETA may beg to differ, but under the law, monkeys and machines have about the same claim on copyright protections right now. (And this isn’t just in the US. In nearly every country, copyright is pegged to human authorship.)

Allen was dogged in his attempt to register his work. He sent a written explanation to the Copyright Office detailing how much he’d done to manipulate what Midjourney conjured, as well as how much he fiddled with the raw image, using Adobe Photoshop to fix flaws and Gigapixel AI to increase the size and resolution. He specified that creating the painting had required at least 624 text prompts and input revisions.

The Copyright Office agreed that the parts of the painting that Allen had altered with Adobe constituted original work. However, it maintained that other parts generated by AI could not be copyrighted. In other words: Allen could copyright parts of the painting, but not the whole thing. This July, Allen appealed once more, arguing that the office had ignored “the essential element of human creativity” needed to use Midjourney. He attempted to use the fair use doctrine to argue that his work should be registered, because it amounts to a transformative use of copyrighted material.

“The underlying AI generated work merely constitutes raw material which Mr. Allen has transformed through his artistic contributions,” Allen wrote.

The Copyright Office didn’t buy it. “The work cannot be registered,” it wrote in its final ruling on September 5.

Allen’s dashed efforts highlight a solidifying legal consensus. This August, a US federal judge dismissed a case brought by Missouri-based AI researcher Stephen Thalus, who has been on a mission to prove that the AI system he invented deserves copyright protections. “Plaintiff can point to no case in which a court has recognized copyright in a work originating with a nonhuman,” wrote Judge Beryl Howell of the US District Court for the District of Columbia in her decision.

Thalus is currently appealing the verdict. Ryan Abbot, his attorney, does not believe that the Copyright Office’s decision on Allen will have an impact on his client’s appeal. But he does see it as having a chilling effect on the wider world of AI-assisted art. “I think it will be a major disincentive to people developing and using AI to make art,” Abbot says.

On this point, Allen (as one might predict) agrees wholeheartedly. “This is the definition of stifling innovation and creativity, the very thing the copyright office claims to protect,” he says.

The Allen ruling may certainly nudge artists to increase the amount of work they put into art produced using AI tools. “Tweaks by a human, if they actually have an aesthetic impact, will likely add enough human authorship to get a copyright on the work as a whole,” Tushnet says.

Allen’s rejected bid demonstrates that it’s entirely unclear how many tweaks constitute human authorship. We know 624 adjustments did not make the work copyrightable—so what about 625? 626?

Link to the rest at Wired

US appeals court curbs Copyright Office’s mandatory deposit policy

From Reuters:

The U.S. Constitution bars the U.S. Copyright Office from demanding that a publisher deposit physical copies of its books with the office or pay a fine, a Washington, D.C., federal appeals court said on Tuesday.

In a ruling for Richmond, Virginia-based Valancourt Books, the U.S. Court of Appeals for the District of Columbia Circuit said the Copyright Office’s demand amounted to an unconstitutional government taking of Valancourt’s property.

The Copyright Office said in a statement that it was reviewing the decision.

Valancourt’s co-owner and co-counsel James Jenkins said the publisher was “thrilled” with the decision. Valancourt attorney Robert McNamara of the Institute of Justice said the ruling was a “victory for property rights, free speech and anyone who loves either one.”

The Copyright Office requires a physical copy of any work published in the United States to be deposited with it. The office has said the requirement ensures that the Library of Congress “has an opportunity to obtain copies of every copyrightable work published in the United States”

It demanded copies of 341 books from Valancourt, which publishes rare and out-of-print fiction, and threatened the publisher with fines of up to $250 per book plus $2,500 more if it failed to comply.

Valancourt sued the Copyright Office in 2018 in Washington, D.C., federal court, arguing the demands were illegal based on the U.S. Constitution’s protections against government seizures of private property without fair compensation.

The district court ruled in 2021 that the office’s demands were constitutional as part of a voluntary exchange for federal copyright protection. But the D.C. Circuit said on Tuesday that copyright owners do not receive any benefits from depositing the copies.

The appeals court said that a work receives copyright protection automatically when it is created. It also noted that the mandatory-deposit requirement is separate from the requirement for deposit copies in order to register copyrights, which does grant government benefits.

Link to the rest at Reuters and thanks to K. and others for pointing out this court decision.

PG says the mandatory deposit requirement is greatly outdated when virtually all books are created electronically and some are never published in hard copy.

Supreme Court Rules Against Andy Warhol in Copyright Case

From The New York Times:

The Supreme Court ruled on Thursday that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for an image of the musician that his estate licensed to a magazine, limiting the scope of the fair-use defense to copyright infringement in the realm of visual art.

The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”

She focused on the fact that Warhol and Lynn Goldsmith, the photographer whose work he altered, were both engaged in the commercial enterprise of licensing images of Prince to magazines.

“To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals,” Justice Sotomayor wrote. “As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use.”

In dissent, Justice Elena Kagan, joined by Chief Justice John G. Roberts Jr., wrote that the decision “will stifle creativity of every sort.”

“It will impede new art and music and literature,” she wrote. “It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”

The dueling opinions, from two liberal justices who are often allies, had an unusually sharp tone.

Justice Kagan’s opinion, Justice Sotomayor wrote, was made up of “a series of misstatements and exaggerations, from the dissent’s very first sentence to its very last.”

Justice Kagan responded that Justice Sotomayor wholly failed to appreciate Warhol’s art.

“The majority does not see it,” Justice Kagan wrote. “And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning.”

The decision was also unusual for including more than a dozen reproductions of artworks by Warhol and others, most of them in color.

The portrait of Prince at issue in the case was taken in 1981 by Lynn Goldsmith, a successful rock photographer on assignment for Newsweek.

In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create a work to accompany an article titled “Purple Fame.” The magazine paid Ms. Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and to use it only in connection with a single issue.

In a series of 16 images, Warhol altered the photograph in various ways, notably by cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, mask-like appearance.” Vanity Fair ran one of them.

Warhol died in 1987, and the Andy Warhol Foundation for the Visual Arts assumed ownership of his work. When Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a special issue celebrating his life. It paid the foundation $10,250 to use a different image from the series for the cover. Ms. Goldsmith received no money or credit.

The majority’s analysis, Justice Kagan wrote, was simplistic and wooden.

“All of Warhol’s artistry and social commentary,” she wrote, “is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion.”

The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869, concerned the limits of the fair-use defense, which allows copying that would otherwise be unlawful if it involves activities like criticism and news reporting.

Lower courts differed about whether Warhol’s alterations of the photograph transformed it into something different. Judge John G. Koeltl of the Federal District Court in Manhattan ruled that Warhol had created something new by imbuing the photograph with fresh meaning.

But a three-judge panel of the U.S. Court of Appeals for the Second Circuit said that judges should compare how similar the two works are and leave the interpretation of their meaning to others.

“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue,” Judge Gerard E. Lynch wrote for the panel. “That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”

Justice Sotomayor wrote that a crucial factor in the fair-use analysis — “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” — weighed in Ms. Goldsmith’s favor.

“Warhol himself paid to license photographs for some of his artistic renditions,” Justice Sotomayor wrote. “Such licenses, for photographs or derivatives of them, are how photographers like Goldsmith make a living. They provide an economic incentive to create original works, which is the goal of copyright.”

Other Warhol works, like Warhol’s images of Campbell’s soup cans, were a different matter, she wrote.

“The purpose of Campbell’s logo is to advertise soup. Warhol’s canvases do not share that purpose,” Justice Sotomayor wrote. “Rather, the soup cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism.”

Link to the rest at The New York Times and thanks to K. and others for the tip

PG has previously showed the original photo beside the Warhol print. Here it is again:

These are the two images that were considered by the Supreme Court in today’s decisions. The photographer, Lynn Goldsmith, who created the photo on the left, won her case against Andy Warhol (his foundation to be specific), the artist who created the painting on the right.

PG suggest that many appellate courts have problems with copyright cases involving visual images. Quite often he has the impression that the judges/justices begin with an approach that boils down to “I’ll know it when I see it,” and move on from there with references to various prior copyright cases that support their visual conclusions.

Copyright infringement cases involving written works tend to be slightly more predictable and involve multiple paragraphs from one book compared to multiple paragraphs from another. That said, decisions tend to go down to the judicial golden gut.

One of the other characteristics of the Supreme Court opinions on copyright infringement is that, most of the time, the Supremes tend not to accept such appeals, allowing the decisions of the U.S. Circuit Courts of Appeal to stand.

The problem with the Supremes not feeling particularly comfortable with copyright is that various Circuit Courts do not always agree on how copyright infringement should be assessed, so, excluding slam-dunk copyright violations, appealing a close federal trial court’s decision may result in a win for one party which would have likely gone another way had the appeal been heard in a different Circuit Court of appeal due to the differences between the Circuits.

That said, 90% of copyright lawsuits are slam dunks for one side or the other, which explains why only a small number of Federal District court cases end up going to trial because the party likely to lose is invented to reach an agreement to settle the case prior to a trial to save a lot of expensive legal fees.

Here’s the entire opinion so you can review all 87 pages, including pictures and giant traditional and historic margins!

Judgment Entered in Publishers, Internet Archive Copyright Case

From Publishers Weekly:

More than four months after a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books, the parties have delivered a negotiated agreement for a judgment to be entered in the case. But a final resolution in the case could still be many months, if not years, away, as Internet Archive officials have vowed to appeal.

The jointly proposed agreement includes a declaration that cements the key finding from Judge John G. Koeltl’s March 24 summary judgment decision: that the IA’s unauthorized scanning and lending of the 127 in-suit copyrighted books under a novel protocol known as “controlled digital lending” constitutes copyright infringement, including in the IA’s controversial “National Emergency Library” (under which the IA temporarily allowed for simultaneous access to its collections of scans in the the early days of the pandemic, when schools and libraries were shuttered).

Most importantly, the proposed agreement includes a permanent injunction that would, among its provisions, bar the IA’s lending of unauthorized scans of in-copyright, commercially available books, as well as bar the IA from “profiting from” or “inducing” any other party’s “infringing reproduction, public distribution, public display and/or public performance” of books “in any digital or electronic form” once notified by the copyright holder. Under the agreement, the injunction will not be stayed while the case is on appeal—essentially meaning that once Koeltl signs off, the IA will have to take stop making unauthorized scans of copyrighted works available to be borrowed within two weeks of notification.

The parties left one final dispute for Koeltl to clean up, however: what books will be “covered” by the proposed injunction?

In a letter to the court, IA attorneys argue that “Covered Books” should be limited to books that are both “commercially available” and available in digital format. “This case involved only works that the Publishers make available as e-books and so the scope of any injunction should be limited accordingly,” IA attorneys argue. “Because the parties did not have the opportunity in this case to litigate the degree to which the unavailability of digital library licensing would affect the fair use analysis, it is inappropriate for an injunction in this case, by its breadth, to effectively prejudge the outcome of that question.”

Lawyers for the plaintiff publishers counter that the injunction should cover all unauthorized scans of commercially available books, whether the copyright holder has licensed a digital edition or not. “The law is clear that the right to decide whether or not to publish a book in electronic format belongs to its authors and publishers, not IA,” the publishers’ letter argues. Furthermore, IA’s unauthorized digital editions create “clear potential market harm to the print book market,” the publisher letter claims, because a “straight, verbatim digital copy of the entire work is an obvious competing substitute for the original.”

It is expected Koeltl will simply rule on the dispute based on what’s already been filed, and move forward with the proposed judgment.

In his emphatic March 24 summary judgment ruling, Koeltl easily found the IA’s program to be infringement, eviscerating the IA’s fair use defense in the process. “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”

Link to the rest at Publishers Weekly

PG was more than a little surprised that the publisher who won the case spent so much time in negotiations with The Internet Archive.

IA was patently wrong in doing what they were doing. The organization’s rationale was the frothiest legal argument PG has seen for a long time. This decision and opinion was one of the easiest to make that the trial judge has had in several years.

Judgment Phase of Internet Archive Copyright Case Appears Imminent

From Publishers Weekly:

It’s now been more than four months since a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books. But after a court order late last week, the parties finally appear headed toward the judgment phase of the litigation.

Since the verdict, the parties have (per the court’s order) been conferring over the contours an “appropriate procedure to determine the judgment to be entered in the case.” And after numerous extensions through the spring and summer, judge John G. Koeltl appears to have run out of patience. In a July 28 order, Koeltl gave the parties until August 11 to deliver their recommendations, adding “no more extensions.”

. . . .

In his emphatic March 24 opinion, Koeltl found the Internet Archive infringed the copyrights of four plaintiff publishers by scanning and lending their books under a legally contested practice known as CDL (controlled digital lending). “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”

In court filings, the publishers have asked for damages and injunctive relief, including the destruction of potentially infringing scans. Lawyers for the Internet Archive have argued that statutory damages should be remitted per section 504 of the Copyright Act, which offers some relief where the infringer is a “nonprofit educational institution, library, or archives,” and the infringers “believed and had reasonable grounds for believing” that its use of the work was fair use.

Link to the rest at Publishers Weekly

Canada’s Crisis Triggers Downsizing at Access Copyright

From Publishing Perspectives:

Today, we include in our rights edition an urgent story that’s not focused on translation- and publication-rights deals but on a crippling copyright fiasco that has damaged a major publishing market for more than a decade. The news, arriving today (July 14), is not good. And copyright, after all, is precisely at the heart of every rights meeting, offer, and deal made across trading-center tables and borders the world over.

As Publishing Perspectives readers know, the story of Canada’s ironically named Copyright Modernization Act of 2012 has entered its 11th year. The act—like those parties taking advantage of it to utilize copyrighted material without payment—has crippled English-language Canadian publishers and authors, causing a loss of as much as US$151.3 million in lost licensing revenues.

The board of directors at Access Copyright—the collective management organization duly established by creators and publishers for English-language Canada—made the organization’s most alarming announcement yet, saying that it is initiating “a significant downsizing and restructuring of the organization because of the federal government’s decade-long inaction in fixing Canada’s publishing marketplace.”

The board’s statement confirms that “Canadian writers, visual artists, and publishers—an indispensable part of Canada’s culture—have been deprived of more than CA$200 million in unpaid royalties under tariffs certified by the Copyright Board of Canada.

“This staggering figure,” the board’s statement says, “is among the many impacts, including job losses and several educational publishers stepping away from the K-12 or post-secondary markets, that have hit Canadian creators and publishers since amendments to Canada’s Copyright Act were enacted in 2012.”

. . . .

What the board of directors describes as “mass, systemic, free copying of creators’ works by Canada’s education sector outside of Quebec since 2012” has led to Access Copyright’s “total distributions to rightsholders dropping by 79 percent.”

Despite the fact that Access Copyright, more than 30 years old, is “a key piece of Canada’s cultural infrastructure that Canadian creators and publishers rely on to be fairly compensated for the use of their work,” the government in Ottawa has not gotten around to addressing this fast-deteriorating situation, even after the national budget in April 2022 specifically promised relief for unpaid copyright holders.

The pertinent language in the federal budget pledges “to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.”

This, the Access Copyright board members point out, “was a direct acknowledgment of the harm that the 2012 changes to the Copyright Act have caused and the need for legislative action to repair it.” And yet no action has materialized. “Creators nationally continue to wait for the government to make good on its commitment, and the marketplace for a viable Canadian educational publishing industry continues to dry up.”

. . . .

Much of the world publishing industry has looked on in disbelief as the education system itself sued Access Copyright at one point, and as court rulings went in the agency’s and publishers’ favor and then against it—leaving a legislative remedy the only hope. By late 2021, Copyright Clearance Center‘s Michael Healy, one of the most influential voices in world copyright issues, told Publishing Perspectives in his annual year-end interview with us on copyright issues, “It’s clearly the end of the judicial road” in Canada.

Critics say that as much as Canadian Heritage—the cultural division of Canada’s federal framework—has been admired in many parts of the world in the past, the Canadian government appears not to care that its own botched legislative action has cratered its once-prized Canadian educational publishing industry.

. . . .

Speaking for the Writers’ Union of Canada, its CEO, John Degen, is quoted, saying, “The abandonment of Canadian creators and publishers is a blight on our country, and an international embarrassment.

“When the Copyright Act was amended to include a fair-dealing exception for education, the Liberals in opposition then expressed deep concern that it was likely to be exploited at the expense of creators. They were right; that’s exactly what happened.

“The government has promised to fix the gaps in the act many times, but we are still waiting for meaningful change. In the meantime, a key market has disappeared and, with it, countless Canadian stories.”

. . . .

The news that Access Copyright is downsizing is devastating to Canadian literary publishers, especially as there are solutions at the ready that would meaningfully address the current ambiguity in fair dealing and add clarity to fair compensation for the use of creators’ works.

“The federal government must stand up for Canadian creators and publishers. We are out of time.”

Link to the rest at Publishing Perspectives

European Publishers See Audiobooks, AI as Inevitabilities

From Publisher’s Weekly:

The Readmagine publishing conference ran from June 7-9 in Madrid, featuring an A-list of publishing pros.

. . . .

The boom in audiobook sales, which continues to transform the landscape across Europe, was a point of conversation. Enrico Turrin, deputy director of the Federation of European Publishers, told the audience that when all the data from FEP’s members is in, audiobooks are likely to account for as much as 4-5% of sales. This shift follows that in the U.S., where Michele Cobb, executive director of the Audiobook Publishers Association, noted that the U.S. has seen 11 years of double-digit growth. “Now, 53% of the U.S. population has listened to an audiobook,” Cobb said.

Cobb noted that there was a potential shift in prevailing business models, moving from a credits-based system to the all-you-can-consume model. “There is growth in both areas,” she said. Discovery too is changing as new consumers are increasingly finding books on TikTok – “you might call it AudioTok,” Cobb said. People are building online communities around listening to audiobooks, but like with print, “the biggest challenge is marketing” and many publishers are “using influencers to do their marketing.”

Kurt Thielen, CEO at audiobook publisher Zebralution, said that he was seeing the market shift in Germany, where the company is based. “We’re seeing people do an audiobook with everything, from books to magazines to personal brand content. It’s a fundamental change in the marketing approach.” Thielen said that short, 30-minute episodic serialization is becoming more prevalent.

Growth for audiobooks has been strong across most demographics, but the born-digital Gen Z – those 18-28 years old—are showing a preference for audiobooks over digital reading, said Shauna Moran, trends manager for Global Web Index, an U.K. based consultancy. “68% of European Gen Zers say they prefer audio books to e-books,” and “28% regularly listen to podcasts.” Moran noted that the content Gen Z preferred was “engaging and goal oriented” – meaning self-help and publishers of DIY content might have an opportunity with short form audio. As far as discovery goes, there was no surprise when she referenced the power of TikTok to persuade readers. “People want to be told what to [read],” she said.

Matt Locke, director of Storythings, a media consultancy from the U.K., concurred. He went on to say that future innovation in publishing would require some tangential thinking, insofar as the past patterns of consumption are evolving into a situation where people want “everything, everywhere all at once,” which has helped fuel the shift from “visual to listening.”

When it comes to innovation from inside the established publishing industry, HarperCollins’s Restivo-Alessi, was part of a panel that tried to peer into the future. The panelists made several observations. They saw the possibility of famous authors, following in the footsteps of Swiss bestseller Joel Dicker and fantasy novelist Brandon Sanderson, going the self-publishing route; and authors merging genres, such as romance and fantasy becoming “romantacy,” which was already a big trend as of Frankfurt 2022.

Unsurprisingly, AI was a main point of discussion, with the panel referencing a variety of ways the industry has already been impacted, from the launch of Reedz, an AI-powered translation company based in Sweden; Bookwire’s incorporation of ChatGPT into its platform; and the launch of Sudowrite, AI-powered writing software. Restivo-Alessi quoted HC CEO Brian Murray’s speech at the London Book Fair earlier this year, noting that “AI is both an opportunity and a risk.” It offers publishers a chance to streamline some editorial and marketing tasks, such as the production of metadata and production of social media posts, but also threatens the integrity of “human-centric storytelling.”

Link to the rest at Publisher’s Weekly

As PG has said before, he sees AI voices replacing humans very quickly, but takes no pleasure in the disruption of the lives and businesses of human voice actors.

That said, AI for ebooks will provide a great many benefits to publishers and self-publishers. AI will do the job much faster, enabling indie authors to publish ebooks, hard copy and audiobooks at the same time or stage the entry of each of those versions of the book if that appears to be a better way of maximizing revenue and profits.

PG expects to see creators of AI voices wanting to monetize their investments in building and perfecting text to speech, but he predicts that there will be a whole lot of competitors in text to speech showing up in a hurry and, at least some systems designers, perhaps academics, who will make an text to speech AI widely available at no charge or much lower charges than commercial versions of that service.

One interesting issue PG predicts will surface relatively quickly with AI narrators vs. human narrators will be a squeezing out of humans in this process for both cost and time-to-market benefits.

Supreme Court Rejects Genius’ Preposterously Stupid Lawsuit Against Google

From Above the Law:

Look, we were not kind when Genius first accused Google of copying lyrics from its site. The only interesting bit was the cleverness with which Genius figured out Google had copied the lyrics from its site, by sneakily adding in curved or non-curved apostrophes to see if the same ones showed up in Google’s version of the lyrics.

But, as we noted at the time, even if Google copied the lyrics from Genius, that was not a legal matter. After all, Genius did not hold any rights in the lyrics, and its method of “getting” the lyrics was basically having people copy down what they heard (one of the stupid things about copyright and lyrics is that there are no official lyrics most of the time, and every lyric site, even those that “license” lyrics, still have to figure out what those lyrics are, which is just kinda crazy when you think about it). And, more importantly, we had a lawsuit almost exactly on this point years ago, where a phone book company inserted fake entries to capture those who “copied” their phone book, and the court said that you can’t copyright facts, and allowed it to stand.

We were even less kind when Genius stupidly sued Google anyway. And we were not at all surprised when a judge rejected the many, many, many ways in which the company tried to turn this into a legal claim. And so, it’s no surprise that this case ends with a complete whimper as the Supreme Court rejected Genius’ cert petition with no comment.

Link to the rest at Above the Law

An AI Cease-and-Desist Letter

PG decided to ask ChatGPT to write a cease-and-desist letter to someone who is stealing PG’s writing and selling it as his own, a fanciful thought if ever there was one.

PG’s prompt: Write a multi-paragraph cease-and-desist letter to John Smith, an author who is stealing my writing and selling it as his own.

The result:

[Your Name]
[Your Address]
[City, State, ZIP Code]
[Email Address]
[Phone Number]
[Date]

John Smith
[Address]
[City, State, ZIP Code]

Subject: Cease and Desist Copyright Infringement

Dear Mr. Smith,

I hope this letter finds you well. However, it has come to my attention that you have been engaged in a serious act of intellectual property infringement. It has been brought to my notice that you have been unlawfully reproducing, distributing, and selling written material that I have authored, thereby infringing upon my exclusive rights as the copyright holder. This unauthorized use of my work is a clear violation of applicable copyright laws.

I am the sole owner and creator of the written content in question, which includes [specific titles or descriptions of the work(s)]. These works are protected by copyright law under the [Copyright Registration Number, if applicable] and are subject to the provisions outlined in the United States Copyright Act [Title 17 of the United States Code].

Upon careful examination, I have gathered substantial evidence demonstrating that you have blatantly copied and utilized my original work without seeking my permission or obtaining the necessary licenses. This constitutes copyright infringement and undermines the rights and financial interests that are rightfully mine as the lawful copyright holder.

I demand that you immediately cease and desist from any further use, distribution, sale, or display of my copyrighted material. Additionally, I insist that you promptly remove all unauthorized copies of my work from any websites, platforms, or other mediums under your control or influence. Failure to comply with these demands will leave me with no choice but to pursue all available legal remedies to protect my intellectual property rights.

In order to resolve this matter swiftly and amicably, I request that you respond to this letter within [reasonable time frame, e.g., 10 business days] from the date of receipt. Your response should confirm your compliance with my demands and provide a detailed account of the actions taken to rectify the copyright infringement. Furthermore, I expect you to provide a written assurance that you will refrain from any future unauthorized use of my copyrighted material.

Please be advised that this letter is not intended to be a complete or exhaustive statement of my rights, legal or otherwise, in connection with the infringement. I expressly reserve all rights and remedies available to me under the law, including the right to seek injunctive relief, damages, and attorney fees.

I strongly urge you to reconsider your actions and rectify this situation promptly. By doing so, we can potentially avoid costly and protracted legal proceedings. I hope we can resolve this matter amicably and without further escalation.

Thank you for your immediate attention to this serious matter. I trust that you will comply with my demands and respect the rights of copyright holders going forward.

Sincerely,

[Your Name]

PG says this is better than some cease-and-desist letters written by other attorneys that he has reviewed.