In March, the courts remained extremely busy with a range of copyright cases including a final conclusion to a monumental fair use case. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of March as well as a few events to look forward to in April.
Copyright Office Activities
CCB Status Update: At the end of March 2024, 803 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 330 are “smaller claims.” In at least 220 of all cases, the claimant is using legal counsel. At least 709 of the cases involve infringement claims, 137 involve Section 512(f) misrepresentation claims, and 25 involve claims for declarations of noninfringement. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (343 cases); Literary Works (129); Motion Picture and Audiovisual Works (159); Sound Recordings (76); Musical Works (53); and some cases include claims for multiple works. One-hundred and six foreign residents have filed claims. Of all the cases filed, 624 have been dismissed for the following reasons: Due to Respondent’s Opt-Out (71); Due to Failure to Amend Noncompliant Claim (305); Registration Issues (16); Due to Failure to Provide Proof of Service of Process (120); Claimant Withdrawal and Dismissal of Claims (71); Bad Faith Claimant (14); and Settlement (41) There are 43 active proceedings and 22 final determinations.
USCO Updates Congress on AI Initiatives: On March 26, the U.S. Copyright Office published a blog post highlighting its next steps in its AI initiative, as previously previewed by Register Shira Perlmutter’s letter to Congress back in late February. The Office stated its intent to release all findings and recommendations about any legislative or regulatory actions from its ongoing AI study by the end of the fiscal year. The first report is slated to be released in late spring, focusing on AI and digital replica issues. The second report, to be published in the summer, will address copyrightability of works containing AI generated material. Later reports will focus on AI training and liability issues. The Office will also publish updates to its Compendium, which will be followed by a public notice requesting comments, related to the Office’s AI registration guidance. Finally, the office noted that it had brought together a group of government and academic economists to discuss the economic implications arising from copyright and AI issues. The Office will publish the group’s proposed research agenda later in the year.
USCO and USPTO Publish Joint NFT Study: On March 12, the Copyright Office and U.S. Patent and Trademark Office (USPTO) published their joint report to Congress on Non-Fungible Tokens and Intellectual Property. The report is in response to a June 2022 request from then-Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property Patrick Leahy and Ranking Member Thom Tillis, asking the Offices to undertake a study on the intersection of emerging NFT technologies and intellectual property. The main takeaway is that the Offices agree that “existing statutory enforcement mechanisms are currently sufficient to address infringement concerns related to NFT applications and that changes to IP laws, or to the Offices’ registration and recordation practices, are not necessary or advisable at this time.”
Biden Administration Copyright Activity
USPTO Holds Public Symposium on AI and IP: On March 27, the U.S. Patent and Trademark Office (USPTO) Artificial Intelligence (AI) and Emerging Technologies (ET) Partnership held a virtual and in-person Public Symposium on Artificial Intelligence (AI) and Intellectual Property (IP) at Loyola Marymount University’s Loyola Law School in Los Angeles, CA. The event consisted of three panel discussions, beginning with Generative AI as Author or Inventor? A comparison of Copyright and Patent Analyses, which was moderated by Aaron Watson, an Attorney Advisor at the U.S. Copyright Office. The panel explored the copyrightability and patentability issues surrounding innovation and creativity aided by AI, and it included panelists Sandra Aistars, Clinical Professor at Antonin Scalia Law School, George Mason University; John Villasenor, Professor of Electrical Engineering and Law, UCLA; and Xiyin Tang, Assistant Professor of Law, UCLA. The second session, Litigation Update: Copyright and Artificial Intelligence, was moderated by Loyola Law School’s Justin Hughes, who led a discussion of current AI-related copyright infringement lawsuits. The three panelists—David Nimmer of Irell & Manella, Angela Dunning of Clearly Gottlieb, and Audrey Adu-Appiah of Oppenheim + Zebrak—debated the merits of recently filed lawsuits by the New York Times and other copyright owners against generative AI companies. The final session, AI, NIL, and the Lanham Act, was moderated by Jeffrey Martin, an Attorney Advisor at the U.S. Patent and Trademark Office, and focused on the name, image, and likeness rights issues surrounding generative AI and deep fake technologies. The panelists included Maureen Weston, Professor of Law at Caruso School of Law Pepperdine University; Duncan Crabtree-Ireland, National Executive Director of SAG-AFTRA; Russell Hollander, National Executive Director of the Directors Guild of America; and Tearra Vaughn, Associate General Counsel at Meta.
USTR Releases 2024 Trade Policy Agenda and 2023 Annual Report: On March 1, the Office of the United States Trade Representative (USTR) released President Biden’s 2024 Trade Policy Agenda and 2023 Annual Report to Congress. In terms of copyright, the report mentions that copyright piracy is a continued challenge, particularly as it threatens U.S. exports in media and other creative content. The report highlights the USTR’s work on copyright issues with several foreign partners and through various activities including the creation of the Notorious Markets List report.
DOJ and FTC File Joint Comment in USCO’s Triennial Rulemaking Process: On March 14, the Department of Justice’s (DOJ) Antitrust Division and the Federal Trade Commission (FTC) submitted joint comments to the U.S. Copyright Office in response to the ongoing triennial 1201 rulemaking, supporting a renewal and expansion of an exemption for the right to repair “functional software that facilitates the repair and monitoring of consumer and industrial products.” The comment notes that the Copyright Office intends to recommend the renewal of two computer program exemptions, Class 5-Repair and Class 7-Vehicle Operational Data, and that the two agencies also support expanding the current exemption to commercial and industrial equipment. The comment goes on to explain that Public Knowledge and iFixit proposed the expansion, that NTIA is supportive, and that the Agencies believe that “no countervailing copyright interests exist.” More information can be found in the FTC’s press release.
BEA Issues Report on the Economy and the Arts: On March 25, the U.S. Bureau of Economic Analysis (BEA) released the results of its Arts and Cultural Production Satellite Account—a report designed to promote a better understanding of certain facets of the U.S. economy. According to the new report, BEA found that “arts and cultural economic activity, adjusted for inflation, increased 4.8 percent in 2022 after increasing 10.8 percent in 2021.” Further, the broader economy (as measured by gross domestic product or GDP), increased 1.9 percent in 2022 following an increase of 5.8 percent in 2021. And arts and cultural economic activity accounted for 4.3 percent of the GDP in 2023, the equivalent of $1.10 trillion.
Congressional Copyright Activity
Living Wage for Musicians Act Introduced: On March 6, Representatives Rashida Tlaib (D-MI) and Jamaal Bowman (D-NY) introduced the Living Wage for Musicians Act. According to the press release, the bill would create a new streaming royalty, with the goal of compensating artists and musicians more fairly at a penny per stream when their music plays on streaming services. Representative Tlaib noted that, “It’s only right that the people who create the music we love get their fair share so that they can thrive, not just survive.” This bill follows Representative Tlaib’s resolution from August 2022, calling on Congress to establish a new royalty program for performers whose music or audio content is listened to on streaming services.
House Small Business Committee Report Outlines Impact of AI on Small Creators: On March 19, the House Committee on Small Business’ Democratic staff released a report titled Bots Over Brushes: The Looming Competition Between Generative AI and Small Content Creators, exploring the impact of generative AI on America’s small businesses and independent creators. The report examines a number of policy recommendations to protect small creators such as (1) requiring generative AI firms to disclose unlicensed content of their training datasets; (2) creating licensing and opt-out schemes for the use of online content in AI training; (3) government-made training datasets; and (4) watermarking AI outputs. More information is available in a press release from the Committee.
Copyright in the Courts
Publishers File Response Brief in Lawsuit Against Internet Archive: On March 15, a group of publishers filed their response brief to Internet Archive’s (IA) appeal to the Second Circuit Court of Appeals in the Hachette v. Internet Archive case. IA is appealing a lower court’s judgment and permanent injunction against it for its widespread copyright infringement from scanning and digital lending of books owned by the publishers. The plaintiffs argue that the appeals court should affirm the lower court’s decision as IA’s activities constituted copyright infringement and did not at all qualify for the fair use exception. On March 22, the Copyright Alliance filed an amicus brief in support of the publishers, supporting the district court’s fair use and first sale analysis, while also warning of the harm to copyright owners and the creative industries that would occur if the decision is overturned, and if IA’s manufactured “Controlled Digital Lending” theory is legitimized. The brief also explains that the limitations on liability found in section 108 of the Copyright Act do not apply to IA’s wholesale copying and digital distribution, and that only Congress has the authority to expand copyright’s limitations. Many others also filed amicus briefs in support of the publishers, including Recording Industry Association of America, Motion Picture Association, News/Media Alliance, and National Music Publishers’ Association; Authors Guild, American Photographic Artists, American Society for Collective Rights Licensing, and American Society of Media Photographers; a group of IP professors and scholars, including members of the Copyright Alliance Academic Advisory Board; twenty-four former government officials, judges, and current IP scholars; and various international and foreign publisher associations.
Andy Warhol Foundation and Lynn Goldsmith Conclude Case: On March 16, the Andy Warhol Foundation and photographer Lynn Goldsmith submitted a joint motion for entry of final judgment, asking the court to conclude the copyright infringement case involving a photograph of renowned musician, Prince, that resulted in a monumental fair use Supreme Court decision last May. In the judgment, the parties agreed that: (1) Goldsmith is entitled to $10,250 in damages from the infringement; (2) AWF’s claim for declaratory relief regarding infringement claims of the original creation of the Prince series is withdrawn; and (3) Goldsmith is entitled to additional taxable costs, but that the parties will be responsible for all other costs on their own including attorneys’ fees.
Fourth Circuit Denies Petitions for En Banc Hearings in ‘Sony v. Cox’ Case: On March 20, the Fourth Circuit Court of Appeals denied requests for en banc hearings filed by Internet Service Provider (ISP) Cox and a group of plaintiff record labels in the Sony Music Entertainment v. Cox case. On February 20, the Court of Appeals for the Fourth Circuit overturned parts of a $1 billion jury verdict, in which the jury found Cox liable for its subscribers’ infringement of 10,017 songs owned by the plaintiffs. Importantly, the court affirmed the jury’s finding of willful contributory infringement. However, it reversed the vicarious liability verdict and remanded for a new trial on damages, finding that the continued payment by Cox subscribers of monthly fees for internet services was not a financial benefit flowing directly to Cox from the copyright infringement itself. The Copyright Alliance filed an amicus brief in support of Sony Music.
Publishers Move for Default Judgment Against Libgen: On March 1, a group of plaintiff book publishers filed a memorandum in support of a motion for entry of a default judgment, permanent injunction, and post-judgment relief order against pirate eBook repository, Library Genesis or Libgen for short. The plaintiffs filed a lawsuit against Libgen last year for providing users illegal copies of plaintiffs’ educational textbooks. In its request for a permanent injunction, the plaintiffs ask that the court order the transfer of Libgen website domain names to the plaintiff.
Microsoft Files Partial Motion to Dismiss NYT AI Lawsuit; NYT Responds to OpenAI’s Motion to Dismiss: On March 4, Microsoft filed a motion seeking to dismiss parts of the copyright infringement lawsuit brought by the New York Times (NYT) against OpenAI and Microsoft in the Southern District of New York. The motion argues that large language models, like OpenAI’s ChatGPT, don’t supplant the market for news articles or other materials they are trained on. On March 11, The New York Times (NYT) filed a memorandum in opposition to OpenAI’s partial motion to dismiss the publisher’s copyright infringement lawsuit. The opposition argues that OpenAI’s claim that NYT hacked its products “is as irrelevant as it is false,” as it merely “elicited examples of memorization by prompting GPT-4 with the first few words or sentences of Times articles.” In response to OpenAI’s statute-of-limitations argument for claims based on models developed before December 2020, NYT argues that OpenAI asks the court to make a factual finding that the makeup of the datasets used to train those models was “common knowledge” in 2020—even though the GPT-3.5 and 4 were not released until 2022 and 2023, respectively. Regardless, NYT argues that OpenAI’s statute-of-limitations fails because of the discovery rule. Addressing OpenAI’s attempt to dismiss the contributory infringement claim, NYT explains that OpenAI applies a heightened standard of knowledge and, further, the issue turns on disputed facts about user behavior. In response to OpenAI’s attempt to dismiss the DMCA claims related to the removal or alteration of copyright management information, NYT argues that the issue turns on disputed fact issues concerning the design of OpenAI’s model-training process, which cannot be resolved before discovery into that design. Finally, in addition to responding to OpenAI’s attempt to dismiss the unfair competition claim, NYT points out that “[d]espite seeking to justify this conduct however it can, OpenAI does not move to dismiss the lead claim that it infringed the Times’ copyrights to train and operate its latest models.”
Court Partially Grants and Denies X Corp.’s Motion to Dismiss Music Publishers’ Lawsuit: On March 5, the district court for the Middle District of Tennessee issued a memorandum granting in part and denying in part X Corp.’s motion to dismiss claims brought against it by a group of music publishers in Concord Music Group, Inc. v. X Corp., over the unauthorized use of musical works in X/Twitter users’ posts. The court dismissed the direct copyright infringement and vicarious infringement claims but did not dismiss the contributory infringement claims to the extent those claims regarded X Corp.’s practices on (1) providing more lenient copyright enforcement to “verified” users; (2) failing to act on takedown notices in a timely manner; and (3) failing to take reasonable steps in response to severe serial infringers.
ASCAP Sues Venues for Unlicensed Use of Music: On March 5, the American Society of Composers, Authors, and Publishers (ASCAP) announced that it had filed 13 separate copyright infringement lawsuits against venues nationwide over the unauthorized public performance of ASCAP members’ copyrighted musical works. “Businesses use music because it helps to create an ambiance that brings customers back and makes them stay longer,” commented ASCAP Executive Vice President and Head of Licensing Stephanie Ruyle. “Hundreds of thousands of well-run businesses across the nation recognize this and understand that compensating the songwriters who created [the music] is the lawful and right thing to do. However, each of the establishments sued today has decided to use music without paying its creators. By filing these actions, ASCAP is standing up for songwriters whose music is essential to those businesses and their customers.”
USCO Files Reply Brief in Appeal of AI Authorship Case: On March 6, the U.S. Copyright Office filed a reply brief in response to an appeal by Dr. Stephen Thaler to the U.S. Court of Appeals for the District of Columbia regarding a district court’s grant of summary judgment in favor of the Office’s denial of a registration application for lack of human authorship. The Office argues that the district court’s decision should be affirmed, given that over a century of case law, longstanding Copyright Office views, and the Copyright Act’s plain text and structure establish a human-authorship requirement.
Authors File Class Action AI Lawsuits Against Databricks and Nvidia: On March 8, a group of authors, including Abdi Nazemian, Stewart O’Nan, and Brian Keene, filed class action lawsuits against Nvidia and Databricks, Inc. for the unauthorized use of their literary works to train the companies’ AI large language models. The complaints allege that Nvidia’s NeMo Megatron–GPT and Databricks’ MosaicML model were both trained on curated datasets that include the Books3 dataset, which consists of copyrighted works scraped from illegal online “shadow libraries.” Both complaints include counts of direct infringement for unauthorized reproduction of the plaintiffs’ works, as well as violations of their rights to “make derivative works, publicly display copies (or derivative works), or distribute copies (or derivative works).” The complaint against Databricks (but not that against Nvidia) also includes a count of vicarious infringement related to Databricks’ right and ability to control the direct infringements allegedly committed by MosaicML.
DC District Court Affirms USCO Denial of 3D Work Registration: On March 18, the U.S. District Court for the District of Columbia issued an opinion affirming the U.S. Copyright Office’s denial of a registration application filed by artist Bruce Munro for a 3D sculptural work that consisted of a globe, tube, and lighted curved filament among other elements. The court found that the Office appropriately addressed the copyrightability of the entire sculpture and that the Office’s refusal was not an abuse of discretion when it deemed the more simplistic arrangement of Munro’s sculpture as insufficiently creative to meet the threshold of originality under current case law. The court also held that the Office did not abuse its discretion in refusing the registration by referencing other works as comparisons to Munro’s work to explain its conclusion that the sculpture was not copyrightable.
Bloomberg Moves to Dismiss Authors’ Claims in Class Action AI Lawsuit: On March 22, Bloomberg filed a motion to dismiss claims filed against it by a group of authors in the lawsuit Huckabee v. Meta over allegations that the plaintiffs’ books had been used to train Bloomberg’s AI model, BloombergGPT. Responding to the plaintiffs’ surviving claim of direct copyright infringement, Bloomberg argues that plaintiffs’ allegations do not specify how BloombergGPT infringes plaintiffs’ copyrights and which works were infringed. Additionally, Bloomberg argues that the fair use exception applies, noting that under a first fair use factor analysis, BloombergGPT was a product of internal research that had not been commercially or publicly released, and that the use was transformative and did not merely repackage or republish the plaintiffs’ works. On the fourth fair use factor, Bloomberg argued that the plaintiffs failed to show adequate market harm arising from the company’s use of plaintiffs’ works.
Appellate Court Cites Warhol in Remanding Tiger King Fair Use Case: On March 27, the U.S. Court of Appeals for the Tenth Circuit reversed and remanded a district court decision that the unauthorized use of a video clip in the Netflix Tiger King documentary qualified as fair use. The case was brought in 2020 and involves Netflix’s and Royal Goode Production’s use of eight video clips that were filmed by plaintiff Timothy Sepi, some when Sepi was employed as a videographer by Joe Exotic TV. In 2022, a district court in the Western District of Oklahoma granted defendants’ motion for summary judgment, finding that seven of the videos were works made for hire and the use of the remaining video qualified as fair use. The Tenth Circuit affirmed the district court’s judgment as to the first seven videos, but reversed and remanded the fair use determination, finding that the first factor “strongly weighs in Plaintiffs’ favor in light of the Supreme Court’s recent guidance in Warhol.” Specifically, the opinion explains that defendant’s use of the video was not transformative, and it did not comment on or “target” plaintiff’s work—instead, it commented on the subject of the documentary, Joe Exotic. Importantly, the court found that defendants had no “sufficiently compelling justification” for the use and, again citing Warhol, that the commercial nature of the use weighed heavily against fair use under the first factor. While the opinion finds that the second and third factors weigh in favor of fair use, the court notes that there was an inadequate factual record as to the fourth factor and remands to the district court “to fill the evidentiary hole and to then reweigh the results of all four factors.”
Copyright in Other Countries
EU Commission Issues Toolbox and Report on IP Enforcement: On March 19, the European Commission adopted a Recommendation to Combat Counterfeiting, which provides a toolbox to combat counterfeiting. The toolbox includes suggested priority actions, a list of best practices, and the use of modern tools and technologies to combat counterfeiting and strengthen the enforcement of IP rights. More information is available in the Commission’s press release.
French Anti-Piracy Report Shows Shrinking Pirate Streaming Audience: French anti-piracy organization, the Association Against Audiovisual Piracy (ALPA), released a study that reported a decrease in average monthly visitors to France-focused pirate websites from 11.8 million visitors in 2019 to 6.3 million in December 2023.
EU Parliament Endorses AI Act: On March 13, the European Union Parliament endorsed the EU AI Act with 523 votes in favor, 46 against, and 49 abstentions. The AI Act is expected to officially become law in May or June of this year. In support of this new development, the European Publishers Council issued a statement highlighting the Act’s provisions, which require providers of general purpose AI models to make available a sufficiently detailed summary of works used to train their models.
Dutch Court Issues Website Blocking Orders Against Anna’s Archive and LibGen: In mid-March, the Rotterdam District Court issued a dynamic injunctive order to the country’s Internet Service Providers to block access to two piracy websites, Library Genesis (LibGen) and Anna’s Archive, and their mirror websites. The injunctive relief was requested by Dutch anti-piracy organization, BREIN, which issued a statement applauding and welcoming the order.
Ecuador’s La Liga Granted Website Blocking Order: Ecuador’s soccer league, La Liga, announced that it had been granted a dynamic website blocking order that orders online service providers to immediately block 22 websites used to illegally broadcast La Liga games.
Copyright Criminals Convicted in China: According to reports, Japan-based anti-piracy group, Content Overseas Distribution Association (CODA) announced that a Chinese court handed down sentences towards the end of 2023 to three individuals involved in a criminal copyright operation that pirated anime. The sentences resulted in a combined prison term of more than four years and fines totaling over $250,000.
Brazilian Court Sentences Illicit Website Operator to Five Years in Prison: On March 25, Brazilian anti-piracy organization, ALIANZA Against Digital Piracy, announced that a Brazilian court had sentenced the operator of the pirate website, Flash IPTV, to five years and four months of prison time for criminal copyright activities. ALIANZA welcomed the court’s ruling, which it claimed as a successful outcome of its larger anti-piracy campaign, Operation 404.
UN Issues Resolution on AI Safety: On March 21, the member countries of the United Nations (UN) adopted a U.S.-led resolution on ensuring safe, secure, and trustworthy AI systems for sustainable development. The resolution mentions copyright, encouraging member states to implement distinct national regulatory and governance approaches, as well as frameworks that “Encourag[e], where appropriate and relevant, the implementation of…safeguards to respect intellectual property rights, including copyright protected content, while promoting innovation.”
South Korea Announces Rules Related to Copyright and AI: According to reports, South Korea’s Ministry of Culture, Sports, and Tourism announced that it will soon release an AI copyright guidebook. In the guidebook, the Ministry announced that it will not grant copyright registrations for AI-generated outputs that do not contain creative human interventions. Additionally, the guidebook specifies that AI companies need to provide fair compensation to copyright owners to use works for AI use and advises copyright owners to implement technical measures or “express their intentions” to prevent use of their works for AI purposes.
Other Activities
National High School Policy Debate Picks Protection of IP Rights as Debate Topic: Earlier this year, the National Federation of State High School Associations (NFHS) announced its selection of “Intellectual Property Rights” as the National High School Policy Debate Topic for the 2024-25 academic year. With a focus on IP rights in the United States, the debate resolution is: “The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights, patents, and/or trademarks.”
Save the Date For…
WIPO Standing Committee Meeting on Copyright and Related Rights: From April 15 to 19, the World Intellectual Property Organization (WIPO) will host the 45th Standing Committee Meeting on Copyright and Related Rights. More information is available on the registration page.
USCO Public Hearings on Ninth Triennial Rulemaking: On April 15-19, the U.S. Copyright Office will hold its public hearings for the Ninth Triennial Rulemaking Proceeding under the Digital Millennium Copyright Act (DMCA) concerning proposed exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. Details about the hearings, including times, will be made available on the Office’s Rulemaking website.
World IP Day Event; Sustaining and Empowering the Creative Community Through Copyright: On April 23 at 2 p.m. ET/11 a.m. PT, the Copyright Alliance, along with our Community Partners and Organizations, will host a panel via Zoom, titled Sustaining and Empowering the Creative Community Through Copyright. Our panel is in keeping with the World Intellectual Property Organization’s (WIPO) 2024 theme, IP and the SDGs: Building Our Common Future with Innovation and Creativity. During the panel our speakers will discuss how creators can meet their goals today while helping to ensure that tomorrow’s creative community is sustained through job growth, a strong creative economy, and continued growth of the arts, all of which are perpetuated through copyright protections. The event will be free and open to the public. More information is on the registration page.
CCC Webinar on Global Copyright Challenges: On April 30, the Copyright Clearance Center (CCC) will host a free one-hour webinar to explore global copyright challenges in a business environment. The session will include an overview of global copyright fundamentals, a focus on the complexities of global copyright in today’s business world, tips on strategies for success, and a question-and-answer session. More information is available on the registration page.
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