Ten Common Copyright Myths:

From Copyright Witness:

We receive a large number of enquiries and these often highlight a number of common misconceptions and misunderstandings about copyright law. The following attempts to dispel the ‘top 10’ copyright myths.

1. Copyright can protect my ideas

Copyright applies to a recorded work, it cannot apply to something as intangible as an idea. Within certain fields, (such as inventions) it may be possible to apply for a patent.

Because copyright applies to the actual recorded work – documents, music, artwork, etc., if a competitor used your copyright work, (i.e. copied or adapted your promotional literature or stole content from your website to promote their own product), this would be an infringement and you could certainly take action, but there is little you can do to prevent someone else creating their own work based on a similar idea as long as they are not copying your work to do so.

2. I can copyright a name or title

Copyright laws are actually very restrictive, and do not apply to items such as names and titles that may be duplicated coincidentally, or that may be legitimately used in unrelated instances.

From a copyright perspective, there is no reason why two works cannot have the same title. As long as the content of works themselves are not copied or adapted, no infringement has occurred.

This does NOT mean that there is no protection on the name, as it may be covered by other legislation: If the name was a trademark, or if it could be proved that that use of the title misleads or confuses the public, (this is know as ‘passing off’), then there can be issues.

While copyright will apply from the point a work is created, ‘passing off’ is based on the public perception of what the name implies, (i.e. you have a very clear idea of what you expect to be given if you ask for a ‘Coca-Cola’).

For further reading on this subject please see our fact sheet: P-18: Names, titles and copyright

3. I can simply post a copy to myself as proof of copyright

This method (sometimes called ‘poor man’s copyright’), may help in some cases, but it is extremely poor evidence as it is very easy to fake – for example by replacing the actual materials inside at a later date.

The main problem if you send your work to yourself via courier or the postal service (including recorded/tracked and signed for services) or use any other system which requires you to store the work yourself, is that there is no verifiable evidence to say that the contents have not been swapped.

For more on this, our page dealing with poor man‘s copyright and other ‘alternatives’ may be worth a look.

Link to the rest at m Copyright Witness

Another “buy” button lawsuit over digital licenses continues

From Rebecca Tushnet’s 43(B)log:

This putative class action alleged that Amazon overcharged and “[d]eceived consumers by misrepresenting that it was selling them Digital Content when, in fact, it was really only licensing it to them[.]” Plaintiffs brought claims under California, New York, and Washington consumer protection law, and common law claims for unjust enrichment.

Plaintiffs alleged that Amazon offers cheaper “rent” options for some of its content, but more expensive “buy” options as well. When consumers “buy” digital content, it’s stored in a folder called “Video Purchases & Rentals.”

But, in fact, Amazon does not cannot pass title of any of this content to consumers. “If the licensing agreement for any of the Digital Content is terminated, Amazon has to pull the Digital Content from not only its site but from all consumers’ purchased folders, ‘which it does without prior warning, and without providing any type of refund or remuneration to consumers.’”

Amazon argued that Article III standing was absent because plaintiffs haven’t lost access to their digital content, and that their claims of overpayment also rested on the mere threat of future unavailability. The court disagreed: there’s a plausible difference in value between owning outright versus purchasing a revocable license.

“Buy” was also plausibly deceptive. Amazon argued that “buy” didn’t mean perpetual ownership, and that it sufficiently disclosed the risk of losing access. Plaintiffs pointed out that Amazon also allows real, non-repossessable purchases with the “Buy” button for tangible goods.  Again, the court agreed with plaintiffs: it was plausible that “buy” could be materially misleading. The court hypothesized a consumer who paid nearly $40 for Barbie and Oppenheimer, but whose Barbenheimer (first judicial appearance?) weekend was ruined because Amazon suddenly lost one license. “Understandably, this consumer ‘might feel a little miffed [or go nuclear] if she were told that she received exactly what she paid for.’”

Link to the rest at Rebecca Tushnet’s 43(B)log and thanks to C. for the tip.

In former days, PG had the occasion to deal with Amazon’s in-house attorneys regarding various matters relating to his clients. He found these lawyers to be intelligent, competent and reasonable (a trifecta that not all lawyers/legal departments can pull off).

PG speculates that the mess described in the OP originated with the marketing department’s decision to proceed on a path contrary to the legal department’s strong recommendations.

In most businesses with which PG has dealt, in such battles, the marketing department often wins. After all, marketing and sales are how a company makes money, and legal is always a cost item that invariably slows down the release of new products and services (often deeply resented within corporate middle management).

Intellectual property in digital form is always licensed, not sold. One of the primary reasons for this legal/practical decision is that digital property is almost always easily duplicated—bits can multiply extremely rapidly in a digital device and thereafter be sent digitally anywhere in the world at the speed of light.

Yes, physical books can be duplicated and shipped anywhere in the world, but a printing press and lots of paper is required to do so. Therefore, you own the single printed copy of a book you purchased at Barnes & Noble (or Amazon), but you license the ebook you receive from Amazon or Barnes & Noble because they are operating under the terms of a license they have received from the indie author or a publisher which has the author’s consent to print, publish, license or sell the book.

But Marketing said, “Customers will be confused if we have, ‘License now with 1-Click®‘”

End of license v. sale discourse.

‘Copyright, Not Infringement, Serves the Public Interest’

From Publishing Perspectives:

On Friday . . . four major publishers—Hachette Book Group, HarperCollins Publishers, Penguin Random House, and Wiley—filed a brief that opposes the Internet Archive‘s appeal of its loss on March 24, 2023, in the copyright case Hachette Book Group, et al, v. Internet Archive.

The original lawsuit was filed by the publishers in June 2020 and argued that the Internet Archive had digitized “millions of print books and [distributed] the resulting bootleg ebooks free of charge from its site, without the consent of the publishers and their authors or the payment of any license fee.”

In his grand of summary judgment of almost a year ago, the judge, John G. Koeltl of the United States district court in the Southern District of New York, wrote, “The publishers have established a prima facie case of copyright infringement,” and his opinion included a firm rebuke to the controversial concept of “controlled digital lending.”

Nevertheless, the Internet Archive made good on its promise to appeal, arguing that Judge Koeltl didn’t understand the facts of the case and was wrong in his decision.

. . . .

The United States’ publishers’ association has announced the filing of the new brief, highlighting these points from the new brief:

  • “Controlled digital lending is a frontal assault on the foundational copyright principle that rights holders exclusively control the terms of sale for every different format of their work—a principle that has spawned the broad diversity in formats of books, movies, television, and music that consumers enjoy today. “…
  • There is no resemblance between the Internet Archive’s conversion of millions of print books into ebooks and the historical practice of lending print books.  Nor does the Internet Archive’s distribution of ebooks without paying authors and their publishers a dime conform with the modern practices of libraries, which acquire licenses to lend ebooks to their local communities and enjoy the benefits of digital distribution lawfully.
  • The Internet Archive operates a mass-digitization enterprise in which it copies millions of complete, in-copyright print books and distributes the resulting bootleg ebooks from its site to anyone in the world free. Granting summary judgment, the district court properly held that the Internet Archive’s infringement is not saved by fair use as each of the four factors weighs against the Internet Archive under longstanding case law.
  • “In sum, the Internet Archive distributes the publishers’ copyrighted material in a market that the publishers, as the copyright owners, are exclusively entitled to exploit, and the Internet Archive looks to replace the publishers as the supplier of ebooks to its customers.  ‘This is precisely the kind of harm the fourth factor aims to prevent.’
  • “’There is nothing transformative about the Internet Archive’s controlled digital lending practices because it does nothing ‘more than repackage or republish’ the works. ‘The Internet Archive does not reproduce the works in suit to provide criticism, commentary, or information about them.’  Rather, the Internet Archive admits that controlled digital lending serves a ‘similar’ purpose to licensed library ebooks—i.e., to make books available to be read—which precludes transformativeness ‘even if the two were not perfect substitutes.’
  • “The Internet Archive’s flawed policy argument is that the law must change to ‘ensure that technological innovation allows libraries to improve access to books…’ But public libraries practicing ‘traditional library lending’ across the country have already implemented this ‘technological innovation’ via the publishers’ authorized library ebooks—which serve ‘people of diverse geographical, cultural, and socioeconomic backgrounds,’ ‘individuals with disabilities,’ and ‘residents of rural and urban areas,’ as well as facilitating research.  In other words, the publishers have realized the innovation [that] the Internet Archive belatedly champions; the Internet Archive is merely usurping it.
  • “The authorized library ebook market is thriving—readers have never had more access to free, licensed ebooks than they do today…  The number of ebooks and audiobooks checked out via OverDrive in 2020 was 430 million, a more than 500-percent increase from 2012.

Link to the rest at Publishing Perspectives

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

Save Our Books campaign

UK authors, illustrators protest mooted copyright changes

From Books+Publishing:

In the UK, over 2600 authors and illustrators have signed an open letter to protest the government’s reconsideration of copyright and trade laws, reports Publishing Perspectives.

The letter comes after publishing industry organisations launched the Save our Books campaign in June, protesting the mooted changes to copyright laws which they claim would lead to a flood of cheap copies of UK books coming back into the home market.

Signatories to the letter, which was published as an open letter to the editor in the Sunday Times, include Hilary Mantel, Kazuo Ishiguro, Philip Pullman, Maggie O’Farrell and Bernardine Evaristo.

‘The Intellectual Property Office is currently consulting on the UK’s future exhaustion regime,’ the letter reads. ‘If they decide to introduce an international exhaustion framework, authors will be unable to limit foreign editions of their books being sold into the UK—undercutting their domestic sales.’

In a statement, Publishers Association CEO Stephen Lotinga said the letter ‘is a clear and urgent call from authors to avoid an outcome that weakens our copyright laws’.

‘Britain is a world leader in publishing and currently exports more books than any other country in the world,’ said Lotinga. ‘The wrong outcome would jeopardize the whole books industry and vandalize the UK’s cultural landscape. It would mean fewer books, by fewer authors, for fewer readers.’

Prior to Brexit, the UK fell under the EU’s copyright agreement, meaning books could be sold freely in Europe but not reimported to the domestic market. The Intellectual Property Office has since launched a consultation ‘which considers a weakening of copyright rules crucial for exporting books around the world and ensuring that UK authors benefit financially from the sales’. Author royalties on export sales are much lower than in the UK market, so if authors can’t prevent their copies from around the world being sold back into the UK, export sales risk eroding domestic sales.

Link to the rest at Books+Publishing

Save Our Books campaign launches – June 2021

From the Publishers Association:

An alliance of organisations has launched the Save Our Books campaign in the face of a potentially devastating change to the UK’s copyright laws which could result in fewer books, by fewer authors, for fewer readers.

Save Our Books is a joint campaign from the Publishers Association, the Society of Authors, the Association of Authors’ Agents and the Authors’ Licensing and Collecting Society.

The government is reconsidering the UK’s approach to copyright and trade following Brexit. The Intellectual Property Office launched a consultation today (Monday 7th June 2021) which considers a weakening of copyright rules crucial for exporting books around the world and ensuring UK authors benefit financially from those sales.

Changing the way these rules, known as ‘copyright exhaustion’, work would present serious dangers for the health of the books industry, including: 

  • Significantly impacting authors’ livelihoods. Author royalties on export sales are much lower than what authors can earn from UK sales of books published for the UK market. If authors cannot prevent their copies from around the world being sold back into the UK, then an export sale risks eroding the corresponding domestic sale. Approximately two-thirds of authors’ incomes could be at risk on the sale of a book in this scenario. This would threaten the sustainability and diversity of UK authorship.
  • Destroying creative export markets. The potential loss of up to 25% of the UK publishing industry’s revenue – almost £1bn – which would harm investment and could lead to publishing job losses.
  • Damaging the already suffering British high street and further supporting online retail giants.

For the continued success of the publishing industry, the UK must ensure authors and publishers have control over the resale of their global products. The government must avoid an ‘international exhaustion framework’ and find a solution that allows UK authors and publishers to ensure different markets can access versions of a book best suited to their needs.

Link to the rest at Publishers Association

A bit more explanation in the event some visitors to TPV aren’t certain what this is all about.

  1. In the US (and many other countries), the author of a book (or creator of a painting, etc.) may, under copyright law, prevent anyone from making, printing, selling, etc., the book without the author’s permission.
  2. If the author publishes a printed book, either directly or through a publisher, and offers it for sale, the author receives some or all of the price a reader pays to purchase the book. This is the “First Sale” of the book.
  3. Under US law, after the First Sale of the physical book, the purchaser can do whatever he/she wants with that physical copy, including reselling it as a used book, to anyone else without any obligation to make any further royalty payment to the author.
  4. The term, “copyright exhaustion” is used to describe this limited right to control/be compensated for the first sale of the book. Under copyright law author has no further control over or right to receive payment from future sales of that copy of the book. This doesn’t mean that someone who purchases a physical book can make copies of the book to resell or anything like that. The author’s copyright is “exhausted” only for that particular copy of the book.
  5. Thus, when a used bookstore resells a physical book that has been sold or given to the store, neither the author or the publisher receives any additional payment for this “second sale”.

(Note: Ebooks are licensed, not sold. The license agreement could effectively control this sort of problem for ebooks without all the issues involved with printed books. Most ebook, software, etc., licenses prohibit transfer, resale, etc.)

Based upon the two articles PG has read concerning the problem described in the OP, the problem seems to be that, if proposed changes are made in British copyright law, new physical British books sold to buyers other countries (European) could then be sent back to Britain as new books and sold without the author receiving the much higher royalties he/she would normally receive from the sale of a new physical book in Britain.

As a hypothetical example, a shipload of new books could be sent across the English Channel to France to a French buyer (generating a much smaller export royalty for the author), then sent right back to Britain and sold as new books (boxes never opened, in exactly the same condition they were when they left the printer) without the author receiving the much higher royalties that would have resulted if the publisher had sold the books to British book distributors and British bookstores before the round-trip to France and back.

(PG notes that the previous paragraph definitely qualifies as a run-on sentence for which one of PG’s beloved elementary school teachers, Mrs. Lascelles, would have lowered PG’s grade.)