Blogs
October 1, 2024

September 2024 Roundup of Copyright News

by Rachel Kim

In September, courts remained busy with copyright cases, with a major decision handed down in a crucial case for publishers. Here is a quick snapshot of some of copyright-related activities that occurred during the month of September as well as a few events to look forward to in October.

Copyright Alliance Activities

Copyright Alliance Blogs: The Copyright Alliance published several blog posts in September:

  • Copyright Alliance’s Kevin Madigan, SVP of Legal Policy and Government Affairs wrote this blog post on the Second Circuit Court of Appeal’s decision in resoundingly rejecting Internet Archive’s fair use arguments in the case brought by publishers.
  • In a blog post on copyright and AI transparency issues, Copyright Alliance’s CEO, Keith Kupferschmid, explores why requiring AI transparency would not destroy trade secrets of AI companies.
  • Copyright Alliance’s COO, Eileen Bramlet, wrote a blog post about her experience as a high school debater and the importance of strong copyright laws. Regan Smith, General Counsel of the News/Media Alliance wrote a blog post about her experience as a high school debater and how strong copyright laws promotes journalism.  

USCO Publishes Report on Geographical Distribution of Copyright Registrations: On September 11, the U.S. Copyright Office (USCO) published a report titled The Geography of Copyright Registrations, which focuses on the geographic distribution of copyright registrations within the United States based on data collected from copyright claims registered between 2009-2022. The report reveals that 40 percent of all copyright registrations originate from five large metropolitan areas: New York, Los Angeles, Philadelphia, Washington, DC, and Chicago. The report also reveals that registration for specific types of creative works are concentrated in certain geographical areas. The Copyright Office stated that a forthcoming report will focus on the demographics of copyright registrations in the United States.

LOC Announces New CPMC Members: On September 24, the Library of Congress announced the new members of the Copyright Public Modernization Committee (CPMC), which has been renewed for a second three-year term. The members include: Sara Benson, University of Illinois; Todd Carpenter, National Information Standards Organization; Terrica Carrington, Motion Picture Association (MPA); Susan Chertkof, Recording Industry Association of America (RIAA); Shanna Hollich, Creative Commons; Becca Jones, Anthem Entertainment Group; Roy Kaufman, Copyright Clearance Center (CCC); Keith Kupferschmid, Copyright Alliance; Melissa Levine, University of Michigan Library; Joe Naylor, Image Rights International, Inc.; Trevor Owens, American Institute of Physics; Jeff Sedlik, Picture Licensing Universal System (PLUS) Coalition; and Regan Smith, News/Media Alliance.

House Judiciary Committee Requests USCO Examination of Royalty Administration by PROs: On September 11, Scott Fitzgerald (R-WI), joined by Representatives Jim Jordan (R-OH) and Darrell Issa (R-CA), sent a letter to the USCO requesting that the Office examine the “proliferation” of new Performing Rights Organizations (PROs) and transparency practices surrounding the collection and distribution of public performance royalties.

Senators Send Letter to DOJ and FTC Urging Investigation of Generative AI Products for Potential Antitrust Violations: On September 10, Senators Amy Klobuchar (D-MN), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Dick Durbin (D-IL), Sheldon Whitehouse (D-RI), Tammy Duckworth (D-WI), Elizabeth Warren (D-MA), and Tina Smith (D-MN) sent a letter to the Department of Justice (DOJ) and Federal Trade Commission (FTC) urging the agencies to investigate whether generative AI features violate antitrust law and pose a threat to content creators, including journalists, through the misappropriation of their works without compensation.

House Ways and Means Committee Holds Digital Trade Hearing: On September 20, the House Committee on Ways and Means held a hearing titled Establishing and Enforcing Strong Digital Trade Rules, focusing on the challenges and strategies for U.S. leadership in global digital trade. Witnesses included Robert D. Atkinson, President, Information Technology and Innovation Foundation (ITIF); Olivia Walch, Chief Executive Officer, Arcascope; Evangelos Razis, Senior Manager, Workday; Adrian Shahbaz, Vice President of Research and Analysis, Freedom House; and Eric Gottwald, Policy Specialist on Trade & Economic Globalization, AFL-CIO. During the hearing, Representative Linda Sánchez (D-CA) asked how digital trade policy can better ensure that workers in the creative industries receive appropriate compensation and recognition. Gottwald responded by saying that a worker-centered digital trade policy should address the unlicensed use of copyrighted content on digital platforms and the dangers of AI, including image-based sexual abuse, commercial misappropriation, and deepfake videos. Representative Sánchez also expressed concern about measures proposed by trade partners such as Australia and Canada that could discriminate against U.S. creative industries, and asked for insight into how these mandates conflict with their Free Trade Agreement (FTA) obligations to the U.S. Gottwald suggested that these rules could lead to less investment in U.S. creators and emphasized the need for a U.S. Trade Representative willing to negotiate and potentially bring a case under USMCA arbitration or the U.S.-Australia agreement. He also agreed with the need to protect creators and allow site blocking in trade agreements.

Biden Administration Activities

Ivan Arvelo Appointed as New Director of the IPR Center: On September 4, Homeland Security Investigation (HIS) announced that Ivan J. Arvelo has been appointed as the new Director of the National Intellectual Property Rights Coordination Center (IPR Center).

Appeals Court Affirms That Internet Archive’s Mass Digitization and Distribution of eBooks is Not Fair Use: On September 4, the Court of Appeals for the Second Circuit affirmed the district court’s ruling in the case of Hachette v. Internet Archive, holding that Internet Archive’s (IA) mass digitization of plaintiff-publishers’ copyright protected books and the distribution of those digital copies under its “Controlled Digital Lending” theory did not qualify for the fair use exception. Weighing all four fair use factors in favor of the plaintiff-publishers, the court concluded that if IA’s “large scale copying and distribution of copyrighted books without permission from or payment to the publishers or authors…” were to be considered fair use, “such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works… [which is] not an approach that the Copyright Act permits.”

Music Publishers Respond to Anthropic’s Motion to Dismiss: On September 5, a group of plaintiff-music publishers filed an opposition to a motion to dismiss made by AI company, Anthropic, to dismiss the lawsuit brought by the plaintiffs over the unauthorized use of their musical works to train Anthropic’s AI model, Claude. The plaintiffs argue that it provided sufficient evidence of infringement and Anthropic’s knowledge of infringements, noting that it is reasonable to infer that the ability of Claude to generate plaintiffs’ lyrics could act as a draw for users. Additionally, on the removal of the copyright management information (CMI) claim, plaintiff noted that is has sufficiently stated its claims, also noting that it is reasonable to infer from Claude’s output omitting CMI that Anthropic intentionally removed that CMI during training.

BMI Sues SiriusXM for Underpaying Songwriters: On September 12, Broadcast Music, Inc. (BMI) sued satellite radio company, SiriusXM, alleging that SiriusXM is attempting to lower its payments to BMI songwriters, composers, and publishers, ignoring BMI’s preeminent market share, changes in the marketplace, SiriusXM’s product evolution towards a digital service, and the company’s strong revenue growth.

Thaler v. Perlmutter Oral Arguments Heard: On September 19, the DC Court of Appeals heard oral arguments in the case of Thaler v. Perlmutter in which the DC District Court affirmed that the U.S. Copyright Office’s refusal to register an AI-generated image where the author of the work was listed as an AI machine. Counsel for Dr. Thaler argued that the Copyright Act does not require human authorship, but that in the alternative, Thaler could be considered as an originator or indirect author of the AI-generated work because he built and owns the AI machine. The panel of judges asked procedural questions as to the scope of the question presented and whether Thaler had adequately challenged the district court’s opinion by explicitly arguing the indirect authorship point. The judges also asked several questions regarding what level of human involvement is needed vis-à-vis a machine in order for an AI generated work to be protected by copyright law and which branch of the government would be responsible in examining AI authorship issues.

Film Companies Appeal Lower Court Decision to Reject DMCA Subpoena Request: On September 10, a group of film production company plaintiffs filed an appeal to the Ninth Circuit in In Re: Subpoena of Internet Subscribers of Cox Communications, LLC and CoxCom LLC, in which the district court for the District of Hawaii had granted a motion to strike made by Internet Service Provider (ISP) Cox, reaffirming the court’s prior holding that the subpoena process under the Digital Millennium Copyright Act (DMCA), whereby an ISP can be compelled to provide information about potentially infringing users, did not apply to Cox because it merely supplied IP addresses to its users who were allegedly engaged in illegal peer-to-peer filesharing. In their appeal, the film companies present two questions: “(1) Whether the District Court erred in ruling that a valid 17 U.S.C. §512(c)(3)(A) notification cannot be issued to a §512(a) service provider despite §512(e) explicitly conditioning that a §512(a) service provider not receive more than two §512(c)(3)(A) notifications within three years to avoid being attributed with its faculty members’ infringing activities?; and (2) Whether the District Court erred in ruling without an evidentiary hearing that a valid §512(c)(3)(A) notification cannot be issued to Cox (as a §512(a) service provider) because Cox cannot disable access to the infringing material despite Cox admitting in multiple public filings that its anti-piracy measures for stopping its subscribers for sharing pirated content without terminating their accounts are successful?”

Trump Campaign Liable for Unlicensed Use of Song: On September 13, the district court for the Southern District of New York held that the Trump campaign’s unlicensed use of singer-songwriter Edmond Grant’s song, “Electric Avenue,” in an animated video created by a third party for the campaign and posted on the campaign’s X account, did not qualify for the fair use exception. The court reiterated its prior statements in rejecting the fair use arguments at the motion to dismiss stage, largely noting that under the first fair use factor the Trump campaign’s use of the song was not transformative enough. The court noted that the political commentary context of the campaign video itself was not enough to render the use of the song as transformative enough to tip the first fair use factor in favor of the Trump campaign—especially where an established music licensing market existed. The court also weighed the other three fair use factors in favor of plaintiff.

Mark Zuckerberg to Be Deposed in AI Class Action Lawsuit: On September 24, Judge Thomas Hixson of the district court for the Northern District of California rejected Meta’s attempt to bar the deposition of Mark Zuckerberg in Kadrey v. Meta, a class action lawsuit filed by a group of authors over the unauthorized use of plaintiffs’ books to train Meta’s proprietary large language model, LLaMA. The court noted that there was sufficient evidence in the record that Zuckerberg had been involved enough in policy-setting and decision-making for Meta’s AI products and that the authors had “made a solid case that this deposition is worth taking.”

MLC Responds to Spotify’s Motion to Dismiss: On September 17, The Mechanical Licensing Collective (The MLC) filed an opposition to Spotify’s motion to dismiss the lawsuit brought over the platform’s decision to bundle music and audiobooks together in its paid premium subscription plan, which re-categorizes music works’ royalties payable to publishers and songwriters to a lower rate. The MLC argues that because Spotify did not raise prices when it bundled audiobook content and music in its Premium service, it demonstrated that audiobooks did not have “more than token value” to justify the lower royalty rate for publishers and songwriters. The MLC also argued that the financial implications of Spotify’s actions would have a $150 million impact on music publishers and songwriters.

Fifth Circuit Rules Use of Art in Educational Art Kits Is Fair Use: On September 18, the Court of Appeals for the Fifth Circuit held in Keck v. Mix Creative Learning Center, L.L.C., that the reproduction of artwork as part of “art kits” for an online course qualified for the fair use exception. Mix Creative Learning Center (“Mix Creative”), an art studio in Houston, Texas, sold online art kits for at-home learning, which included printed-out PowerPoint slides featuring an artist’s biography and artwork along with lesson plans and supplies for students to make art in the artist’s style. Mix Creative sold art kits including copies of multi-media artist, Michel Keck’s, artwork from her “Dog Art” series, which the proprietor of Mix Creative found online after searching for Google images for “paintings of dogs.” The court found that under the first fair use factor, Mix Creative’s use was transformative as the art kits had a distinct, different educational purpose and its use was not to “dr[aw] on Plaintiff’s art nor for its inherent expressive value, but for what…[it] could teach students.” Under the fourth fair use factor, the court found that the widespread use of Keck’s works for educational lessons would not harm Keck’s markets, and that the transformative nature of the use was so different in purpose and character that it was not likely that the market for the original work or its derivatives were usurped.

Publishers Win Default Judgment Against LibGen: On September 24, the district court for the Southern District of New York granted a default judgment in favor of a group of education publishers in their lawsuit against pirate eBook website, LibGen, over the piracy of the publishers’ publications. The judgment ordered defendants to pay maximum statutory damages, resulting in a $30 million damage award for the publishers. The order also includes an injunction requiring Online Service Providers (OSPs) to block access to the LibGen website and to disable or suspend LibGen domain names or transfer them to the publishers.

Artist Sues U.S. Copyright Office Over Refusal to Register Image With AI-Generated Elements: On September 26, artist, Jason Allen, filed a complaint against the U.S. Copyright Office (USCO) in the district court for the District of Colorado for rejecting his claims to register an image containing AI-generated elements, titled Théâtre D’opéra Spatial. On September 5, 2023, the USCO had rejected Allen’s second request for reconsideration for refusal to register the image because it determined that the image contained more than a de minimis amount of AI-generated work that Allen declined to disclaim on the registration application. In the complaint, Allen argues that the USCO’s refusal was arbitrary and capricious, stating that the image displays a large degree of creativity, and that Allen had actively directed the creation process and directly influenced the final output.

German Economic Research Group Releases Study Results of Electronic Lending on the Book Market: The German Institute for Economic Research (DIW Berlin) published the results of a study on the economic impact of electronic lending in public libraries on the consumer book market. The study, commissioned in 2021, highlights the importance of maintaining a balance between commercial and library markets to protect the digital book ecosystem. A key finding shows that “windowing” boosts sales, with a 9.9% increase in e-book revenue and a 3.5% increase in print book revenue. The study also warns that removing windowing could lead to losses for authors, publishers, and booksellers.

New European Study Concludes ‘AI Training Is Copyright Infringement’: On September 4, a European study titled Copyright & Training of Generative AI—Technological and Legal Foundations—led by Dr. Tim W. Dornis (University of Hannover) and Dr. Sebastian Stober (University of Magdeburg)—was released. According to Dr. Dornis, “As a closer look at the technology of generative AI models reveals, the training of such models is not a case of text and data mining. It is a case of copyright infringement…[because] parts of the training data can be memorized in whole or in part by current generative models…and can therefore be generated again with suitable prompts by end users and thus reproduced.”

UN AI Advisory Board Releases Recommendations on AI Governance: On September 19, the United Nations (UN) AI Advisory Board released a report titled Governing AI for Humanity, which outlines seven recommendations to facilitate global AI governance. In the report’s discussion of recommendation five (5), under which the AI Advisory Board recommends the creation of a global fund for AI development, it mentions that the UN is uniquely situated to support global principles and practical arrangements for AI training data governance and use in line with international commitments on Intellectual Property (IP). The report also acknowledges that the World Intellectual Property Organization (WIPO) is examining “important issues of content, copyright and protection of indigenous knowledge and cultural expression…” Lastly, the report states that 54% of AI experts surveyed were very concerned or concerned about the risks posed by AI, arising from the violation of IP rights.

G7 Releases Ministerial Declaration on Culture Affirming Human Creativity and Importance of Copyright: On September 20, the G7 released a Ministerial Declaration titled Ministerial Declaration on Culture, Common Good of Humanity, and Common Responsibility, which contains language that recognizes the importance and value of human creativity and the need to “implement appropriate safeguards, to respect rights related to privacy and intellectual property, including copyright-protected content, and to take appropriate measures to manage data quality, which could include transparency.”

Brazil Police Authorities Execute Seventh Phase of Major Anti-Piracy Operation: On September 20, Brazil’s Ministry of Justice and Public Security reported on its latest operations in its ongoing Operation 404 anti-piracy campaign in conjunction with foreign police operations and private anti-piracy organizations. The Ministry reported that the seventh phase of Operation 404 resulted in thirty search and seizure warrants and five arrest warrants being served with related materials seized under the authority of a court.

French Court Orders ISPs to Block Domain Names Used by Pirate eBook Website Z-Library: According to reports, a court in Paris issued a website blocking order based on a request initiated by the French Publishers Union (SNE), ordering French Internet Service Providers (ISPs) to block 98 domain names used by the pirate e-Book website, Z-Library.

German Court Holds LAION’s TDM Activities Qualify Under Copyright Exception: On September 27, the District Court of Hamburg handed down a ruling in the case Kneschke v. LAION, holding that LAION’s downloading copyrighted images and pairing with text descriptions as part of creating an AI training dataset qualified under the TDM exception for scientific research purposes under German copyright law. The court noted that the exception would not extend to research organizations collaborating with a private entity, where the private entity could exert influence on the research and have “preferential access” to findings resulting from the research.

ACE Reports Shutdown of Largest Piracy Website in MENA Region: On September 11, the Alliance for Creativity and Entertainment (ACE) announced that in collaboration with Egyptian authorities, the largest piracy website in the Middle East North Africa (MENA) region, Laroza, was successfully shut down. The antipiracy operations resulted in the arrest of two operators. Laroza provided illegal access to approximately 29,000 movies and television series and logged more than 52 million monthly visits in the past six months.

IP House Publishes Report on International Video Piracy: On September 19, IP House published a report titled Overseas and Out of Reach: International Video Piracy and U.S. Options to Combat It, which was commissioned by the Digital Citizens Alliance (DCA). The report examines how international content piracy works, various piracy statistics, major international piracy operators, and the effectiveness and scope of international site blocking measures.

SoundExchange to Launch Global AI Sound Recording Registry: On September 20, SoundExchange announced that the company is developing a global AI registry for sound recording creators and rights owners. The registry will feature creators and rights owners who are asserting their rights against training by AI algorithms. The registry is expected to launch during the first quarter of 2025.

CCC Co-Authors New Article on Copyright, AI Training, and LLMs: In a new article, titled “The Heart of the Matter: Copyright, AI Training, and LLMs,” the four authors of the piece—Daniel Gervais of Vanderbilt University Law School, Babis Marmanis of Copyright Clearance Center (CCC), Catherine Zaller Rowland of Copyright Clearance Center (CCC), and Noam Shemtov of Queen Mary University of London, Centre for Commercial Law Studies—“address several key areas of the relationship between copyright and generative AI, focusing on how copies are made and used in LLMs, the significant copyright liability issues that can arise from these uses, and the challenging international landscape…”

Save the Date For…

USPTO China IP Legislation and Case Law Update: On October 3 from 2-3 p.m. ET, the U.S. Patent and Trademark Office (USPTO) will host a webinar titled China IP Legislation and Case Law Update, which will be led by senior USPTO attorneys. The program “will provide an opportunity for IP attorneys, businesses, inventors, brand owners, and other stakeholders to access a unique and concise source of information about recently implemented IP-related measures and legal cases” related to China.

MDVLA Art Law Clinic: On October 5 from 1-4 p.m. ET, the Maryland Volunteer Lawyers for the Arts (MDVLA) invites Maryland creators who have legal questions or concerns about their works and “short form legal issues,” to make a 30-minute appointment with one of the organization’s volunteer attorneys during its Art Law Clinic. Interested Maryland creators may register for an appointment for a non-refundable fee of $5.00 on the registration page.

LOC Hosts First Meeting of New CPMC Membership: On October 10 from 1-2:30 p.m. ET, the Library of Congress will hold its public meeting of the new Copyright Public Modernization Committee (CPMC) meeting. More information is available on the registration page.

MdVLA Webinar on Contract Basics for Creative Entrepreneurs: On October 10 from 1-2 p.m. ET, the Maryland Volunteer Lawyers for the Arts (MDVLA) is hosting a webinar for creators who have agreed to collaborate with fellow artists, or sell or license their work to a patron, and need to understand the basics of creating a contract that outlines all of the details (including who owns the copyright and other key information). The webinar will cover contract terms, rights granted, advances, and more. More information is available on the registration page.

C-IP2 Annual Fall Conference: From October 17-18, the Center for Intellectual Property x Innovation Policy (C-IP2) at George Mason University Antonin Scalia Law School will host its 2024 Annual Fall Conference, bringing together academics, policy makers, innovators, and creators to discuss key issues in IP. This year’s conference theme is The Importance of Exclusive Rights in the Patent and Copyright Communities. The theme will offer discussions about the historical basis for those rights, and what happens to innovators and creators if the rights are not protected. More information is available on the conference webpage.

VLANY Webinar on Contract Basics for Artists: On October 23 from 5-6 p.m. ET, the Volunteer Lawyers for the Arts New York (VLANY) will host a webinar on contract basics for artists and creators of all genres, assisting them in understanding how to protect their rights and interests related to their arts, including through copyright. The class will review ten important items to look out for when entering an agreement so that attendees can ensure both the creator and her creative works are adequately protected. Topics that will be covered include contract formalities, negotiating payment and credit terms, termination, protections, and boilerplate language. The instructor is Emma Frean, VLANY Associate Director of Legal Services. More information is available on the registration page.

CCC Advanced Copyright for Business Course: On October 24 from 1:30-3:30 p.m. ET, the Copyright Clearance Center (CCC) will offer its Advanced Copyright for Business course which comprises of a comprehensive six-module session with an in-depth review of the history and purpose of U.S. copyright law, along with tips to assist with better management of their company’s copyright compliance. Those who successfully complete the course will receive an eLearning certificate. More information is available on the registration page.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

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