Blogs
September 3, 2024

August 2024 Roundup of Copyright News

by Rachel Kim

In August, Congress was in recess, but major copyright cases were being heard and decided by the courts, including those related to AI and secondary copyright liability. Here is a quick snapshot of some of copyright-related activities that occurred during the month of August as well as a few events to look forward to in September.

Copyright Alliance Activities

Copyright Alliance Blogs: The Copyright Alliance published a blog post examining the takeaways from a order issued by a court in the visual artist class-action lawsuit, Andersen v. Stability AI.

CCB Final Determinations Update: At the end of August 2024, the Copyright Claims Board (CCB) issued 29 final determinations. Claimants prevailed about 66% of the time and the average damage amount awarded by the CCB across all final determinations is $3,199. Twenty percent of the final determinations issued by the CCB were issued in cases brought through the “smaller claims” process. The average time it took for the CCB to issue a final determination from the time a claim was first filed was about 15 months. The average time it took for the CCB to issue a final determination from the time a case was first filed through a standard CCB proceeding was about 15 months, while for a case filed through the “smaller claims” process, the average time is about 12 months.

CRB Receives Notice of Intent to Audit Certain Royalties: On August 22, the Copyright Royalty Board announced that it received a notice of intent to audit from SoundExchange of the statements of account from 2021-2023 submitted by commercial webcaster licensee Salem Media Group.

Appeals Court Rejects Constitutional Challenges to Prohibitions of Technological Protection Measures Under the Copyright Act: On August 2, the U.S. Court of Appeals for the D.C. Circuit issued an opinion in Green v. DOJ rejecting the plaintiffs’ facial challenge to the constitutionality of the Copyright Act’s prohibitions on the circumvention of technological protection measures. The case was brought as a pre-enforcement action in 2016 by the Electronic Frontier Foundation (EFF) on behalf of various putative plaintiffs, and it argued that section 1201 of the DMCA is overly broad and unconstitutional because it restricts lawful uses of technology under the First Amendment. In 2019, the district court for the District Court of Columbia dismissed all but the as-applied First Amendment challenges, finding that the government failed to meet its burden to show that section 1201(a) does not encumber substantially more of plaintiffs’ speech than necessary to further its interest. The plaintiffs then appealed the district court’s earlier order dismissing the facial First Amendment challenges. Rejecting those challenges, Judge Pillard explained that the plaintiff’s facial challenge “is especially disfavored because section 1201(a) expressly regulates conduct—the circumvention of technological locks, and trafficking in means of circumvention—rather than speech.” The opinion goes on to say that the “heartland” conduct the anticircumvention and antitrafficking provisions criminalize is piracy of digital property, which is “a modern form of theft.” Addressing the claim that the triennial rulemaking process itself is an unconstitutional burden on its beneficiaries’ speech, the court found it unpersuasive and notes “an irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself.”

Music Groups and Publishers File Joint Amicus Brief In Support of a Preliminary Injunction Against Anthropic: On August 5, the Recording Industry Association of America (RIAA), National Music Publishers’ Association (NMPA), The Association of American Publishers (AAP), News/Media Alliance, Songwriters of Norht America, Music Artists Coalition, Artist Rights Alliance, American Association of Independent Music, and the Black Music Action Coalition filed an amicus brief in support of a group of music publishers plaintiffs and their motion for preliminary injunction in the case Concord v. Anthropic, over the unauthorized copying and distribution of plaintiffs’ musical works to develop Anthropic’s generative AI chatbot, Claude. Amici in their brief argue against Anthropic’s claim that licensing copyrighted works is too difficult, pointing out the multitude of successful existing licensing deals for copyrighted works. The brief also explains that contrary to Anthropic arguments, copyright is not a barrier to innovation but rather “incentive[es] creative expression to society’s great benefit . . .” 

Authors File Class Action Lawsuit Against Anthropic: On August 19, a group of authors of literary works, including Andrea Bartz, Charles Graeber and Kirk Wallace Johnson, filed a proposed class action lawsuit in the Northern District of California against the AI company Anthropic. The complaint alleges that Anthropic “has built a multibillion-dollar business by stealing hundreds of thousands of copyrighted books” in the development of its flagship Claude a large language model (LLM). Similar to other lawsuits brought by authors of literary works against LLM developers, the complaint alleges that Anthropic downloaded and copied hundreds of thousands of copyrighted books—including Plaintiffs’—that were made available through pirate websites and incorporated into “The Pile” training dataset. The Plaintiffs claim that Anthropic has usurped existing licensing markets and “seeks to profit from strip-mining the human expression and ingenuity behind each one of those works.” The complaint consists of one count of direct, willful copyright infringement.

Court Rules That Visual Artists’ Copyright Infringement Claims Should Survive in AI Class Action Lawsuit: On August 12, the district court for the Northern District of California granted in part and denied in part motions to dismiss claims made by a group of visual artist plaintiffs in Andersen v. Stability AI, over the unauthorized use of the plaintiffs’ works in training data sets for the AI image-generating platforms Stable Diffusion, the Midjourney Product, DreamStudio, and DreamUp. The court denied motions to dismiss the direct and secondary liability copyright infringement claims, Lanham Act claims. The court dismissed the copyright management information removal claims, breach of contract claims, and breach of the implied covenant of good faith and fair dealing claims. Finally, the court dismissed the unjust enrichment claims, but gave plaintiffs one final attempt to amend these claims.

Record Labels and Altice Settle Lawsuit: On August 14, BMG Rights Management, Universal Music Group, Capitol Records, and Concord Music Group filed a joint submission which confirmed that the parties had dismissed its lawsuit against Internet Service Provider, Altice, over copyright infringement committed by Altice’s users. The record labels’ complaint listed over 7,000 allegedly infringed songs, meaning that the total statutory damages could have exceeded $1 billion.

Parties File Separate Cert Petitions in Sony v. Cox Case: On August 15, Cox, filed a cert petition, appealing a Fourth Circuit ruling in the Sony v. Cox case, in which the court held the ISP liable for contributory copyright infringement, but not for vicarious copyright infringement, for its users’ infringements of songs owned by plaintiff record labels. The petition presents two questions: (1) “Did the Fourth Circuit err in holding that a service provider can be held liable for “materially contributing” to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it?” (2) “Did the Fourth Circuit err in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17. U.S.C. 504(c)?” The record labels filed their own cert petition, asking the Court to reconsider the vicarious copyright infringement ruling. The question presented in the petition is: Whether the profit requirements of vicarious copyright infringement permits liability where the defendant expects commercial fain from the enterprise in which infringement occurs, or whether the profit requirement of vicarious copyright infringement permits liability only where the defendant expects commercial gain from the act of infringement itself?

Court Rules that Kimmel’s Use of Videos Featuring George Santos is Fair Use: On August 19, the district court for the Southern District of New York held that the use of videos made by former Congressman George Santos on the Jimmy Kimmel Live! television show constituted fair use. The suit was filed over the commercial use of personalized videos through the service, Cameo Videos, which Santos created and Kimmel solicited under aliases and paid for subject to Cameo Video’s personal license. Citing to the Supreme Court’s decision in AWF v. Goldsmith, the court found that on the first fair use factor, the use of Santos’ videos on Kimmel’s show was used for purposes of political commentary and criticism, that did not supersede the “objects” of the original videos and that the use of the original videos was justified to “conjure” up the original during the commentary.

Court Overturns Copyright Jury Verdict in Favor of Disney: On August 26, the district court for the Northern District of California overturned a jury finding which had found Disney liable for vicarious copyright infringement of motion-capture software, MOVA, owner by the company, Rearden. MOVA was used by Disney’s contractor in the live-action remake of Beauty and the Beast. The court stated that there was insufficient evidence to prove that Disney had the practical ability to identify infringing conduct through its contractor’s infringing use of the software motion-capture contractor.

Trial Postponed in Thomson Reuters v. Ross Case: On August 22, days before the trial was scheduled to begin on August 26 in Thomson Reuters v. Ross Intelligence, a hearing was held during which Judge Bibas found as a matter of law that defendant, Ross Intelligence, had committed acts of infringement. However, that oral order was rescinded and the trial was postponed while the parties bring new summary judgment motions on copyrightability, validity, infringement and fair use. In 2020, Thomson Reuters had sued Ross Intelligence, a competitor legal research service, for copyright infringement, alleging that Ross, via an AI bot, systematically mined, collected, and downloaded copyrighted legal content from the Westlaw database.

Court Affirms $4 Million Award for Circumvention of TPMs for Video Game Company: On August 26, the Ninth Circuit Court of Appeals affirmed a $4 million arbitration award in favor of video game company, Bungie, for the violation of provisions under the Digital Millennium Copyright Act (DMCA) in circumventing copyright protection measures by video game cheat code developer, Phoenix Digital (Phoenix). In 2021, Bungie sued Phoenix, which owns and operates the AimJunkies website, for hacking into Bungie’s video game Destiny 2 and copying the game’s software code to make and sell cheat software on AimJunkies. On May 24, a jury in the U.S. District Court of the Western District of Washington found that Phoenix was liable for copyright infringement, awarding plaintiff video game company, Bungie, $63,210 in damages. Bungie’s DMCA allegations had been in arbitration, where Bungie was awarded $4 million in damages.

Voice Actors Bring Lawsuit Against AI Company: On August 29, a group of professional voice actors filed a complaint against AI company, ElevenLabs, alleging that the plaintiffs’ voices and likenesses were misappropriated by the creation of voice clones of ElevenLab’s AI products, “Bella” and “Adam.” The plaintiffs also allege that ElevenLabs is liable for violations under the Digital Millenium Copyright Act (DMCA) by circumventing technological protection measures protecting the plaintiffs’ copyright-protected audiobook narrations and removing or altering copyright management information to train the AI company’s AI system without authorization.

Large Dutch-Language Model Dataset Taken Down: On August 13, Dutch anti-piracy group, BREIN, announced that it completed a successful take-down of a large Dutch-language model dataset used to train AI models. The dataset reportedly included illegal copies of tends of thousands of books, and subtitles of numerous films and TV series from pirate websites.

Creative Content Australia Publishes Report on Piracy Behaviors: In mid-August, Creative Content Australia published a report on piracy behaviors of Australian adults titled 2023 Australian Piracy Behaviours and Attitudes. The report was launched with a three-month campaign to inform consumers about privacy, identity theft, fraud, and hacking risks stemming from cybercrime and online piracy.

French Court Denies Uptobox’s Appeal of Website Blocking Order: According to reports, a Paris court denied an appeal made by file-storage service, Uptobox, of an injunction that had ordered Internet Service Providers to block access to the Uptobox website. The court found that there was sufficient evidence that the Uptobox service was predominately used for copyright infringement activities and that Uptoboc did not take any proactive measures to prevent infringement or combat against the re-uploading of infringing works.

Taiwanese Authorities Dismantle Pirate IPTV Operations: According to reports, Taiwan’s Criminal Investigation Bureau (CIB) executed a successful operation against a pirate IPTV provider, Qingtian TV/Sunny TV, arresting two suspects and seizing 279 items including set-top boxes, video encoders, and other equipment.

ACE Announces Successful Shutdown of Illegal IPTV Services: On August 14, The Alliance for Creativity and Entertainment (ACE) announced settlements with three U.S.-based illegal IPTV operators, resulting in over $2 million in financial compensation to ACE. The IPTV services covered by the settlement agreement include Anytime TV, Cobra Servers, Elite Servers, and Lost Highway Media. Additionally, domain names associated with these services were also transferred to ACE.

ACE Announces Successful Shutdown of Piracy Operations Behind Notorious Piracy Websites Including Fmovies: On August 29, The Alliance for Creativity and Entertainment (ACE) announced that in collaboration with the Hanoi Police, one of the largest pirate streaming operation in the world was shut down, resulting in the shuttering of numerous notorious piracy websites including Fmovies, bflixz, flixtorz, movies7, myflixer, and aniwave.

N/MA Reports Successful Takedown of Illegal Tools Used to Circumvent TPMs: On August 21, the News/Media Alliance (N/MA) announced that it was successful in its efforts to remove several online code repositories of illegal web browser add-on software offerings. These illegal tools were deisnged to allow users to circumvent technical measures that N/MA news publisher members use to protect access to their content. N/MA President and CEO, Danielle Coffey stated, “The Alliance applauds these platforms for swiftly removing these bypass tools, which are unlawful circumvention technologies prohibited by the Digital Millennium Copyright Act (DMCA) and which one platform expressly confirmed also violates that platform’s terms of service.”

Condé Nast and OpenAI Strike Licensing Deal: On August 20, Condé Nast CEO Roger Lynch, wrote a memo to employees about a multiyear partnership that the media company struck with OpenAI. Lynch wrote: “This partnership recognizes that the exceptional content produced by Condé Nast and our many titles cannot be replaced, and is a step toward making sure our technology-enabled future is one that is created responsibly.” More information is available here.

Universal Music Group and Meta Expands Licensing Agreement: On August 12, Universal Music Group (UMG) announced that it renewed its licensing agreement with Meta so that UMG songs can use used across Meta’s major platforms including Facebook, Instagram, Messenger, and WhatsApp.

ProRata.ai Strikes Licensing Deals with Rights Holders Including Universal Music and Major Publications: According to reports, ProRata.ai, a generative AI startup company, struck licensing deals with Universal Music Group, Time, Financial Times, Axel Springer, The Atlantic, and Fortune and with authors including Tony Robbins, Neal Postman, and Scott Galloway. The AI company revealed that it would like to pursue agreements with high-profile YouTubers and other digital individual creators. ProRata.ai plans to arrange revenue-sharing deals so that rights holders get paid when the AI company uses their work. The company recently raised $25 million through various investors and is planning to launch its own subscription chatbot-style search engine in October.

Save the Date For…

CCC Webinar on Updating Your Company’s Copyright Policy for the AI Era: On September 4 from 9-9:30 a.m. ET, the Copyright Clearance Center (CCC) will host a brief webinar on Updating Your Company’s Copyright Policy for the AI Era. The 30-minute session will provide the foundation needed to uphold copyright best practices. Webinar attendees will learn guidelines for drafting and implementing a copyright compliance policy, receive a sample policy that can be tailored to each organization’s needs, and garner additional guidance around the shifting landscape of AI and copyright.

CCC Webinar on Copyright at Work: On September 10 at 1 p.m. ET, the Copyright Clearance Center (CCC) will host a webinar titled Copyright at Work to help attendees understand the basics of copyright law, including what is and what isn’t copyright protected, how fair use works, when copyright permission is needed for both electronic and paper copies, how to obtain copyright permission, and more.

CCC Copyright 101 Course: On September 12 from 1:30-3:30 p.m. ET, the Copyright Clearance Center (CCC) will host a webinar titled Copyright 101, a course designed for those who need a basic overview of U.S. copyright law to assist with their day-to-day work responsibilities.

VLANY Oktoberfest Fundraiser: On September 15 from 12:30-3:30 pm. ET, Volunteer Lawyers for the Arts New York (VLANY) will host a community fundraiser called VLA Oktoberfest. Proceeds from the event will go toward funding VLANY’s support of New York creators. More information is available on the event page.

WALA Webinar on Copyright and Trademark for Creative Entrepreneurs: On September 13 from 11 a.m.-1 p.m. ET, the Washington Area Lawyers for the Arts (WALA) is hosting a Creative Entrepreneur session dedicated to understanding copyright and trademark through a presentation and a question and answer session with WALA Board President and attorney John D. Mason. Attendees will learn more about copyright registration, fair use, works made for hire, creative commons, licensing, trademark, rights management, and more. More information is available on the registration page.

California Lawyers for the Arts Webinar on Navigating the Music Industry: On September 19 from 12-1 p.m. ET, the California Lawyers for the Arts will host a webinar for aspiring musicians, songwriters, and producers who are looking to break into the music industry. The session is designed for creatives at the start of their musical journeys. Speakers will share helpful insights, practical tips, and expert advice to help navigate the competitive and complex music industry. They will also discuss how creators can protect their works. More information is available on the registration page.

Annual IP Watchdog LIVE Conference: From September 29 to October 1, IP Watchdog will host its fourth annual meeting to bring together the intellectual property community, including business executives, attorneys, inventors, and IP protection representatives. The event will focus on learning and networking opportunities. More information is available on the event 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!

get blog updates