Blogs
December 5, 2024

November 2024 Roundup of Copyright News

by Rachel Kim

In November, a lawmaker introduced an important bill addressing AI transparency issues related to the use of copyright-protected works. Internationally, OpenAI faced new lawsuits filed by foreign creators and copyright owners in three different countries. Here is a quick snapshot of some of copyright-related activities that occurred during the month of November as well as a few events to look forward to in December.

Copyright Alliance Activities

Copyright Alliance Blogs: The Copyright Alliance published some blog posts in November:

  • Copyright Alliance’s SVP of Legal Policy and Government Affairs, Kevin Madigan, explores in this blog post why it is essential to license copyrighted works for generative AI use.
  • Copyright Alliance’s CEO Keith Kupferschmid explores what and whom he’s most grateful for this year in his annual Copyright Alliance Thanksgiving blog.

CCB Issues Final Determination in Wareka v. Carroll, Awarding 11K in Damages: On November 15, the Copyright Claims Board (CCB) issued a final determination in Wareka v. Carroll, awarding the claimant 11K in statutory damages. This is the largest damage award granted by the CCB. Tamara Wareka brought claims against Sabrina Carroll who is the sole owner and founder of a skin care clinic called Sky Lounge LLC, over the unlicensed use of five of Wareka’s photographs in Sky Lounge advertisements. In adopting a proposed default final determination, the Board found Carroll vicariously liable for copyright infringement and awarded statutory damages of $2,200 per work.

Biden Administration Activities

USPTO Director Vidal to Step Down: On November 12, U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal announced that she is stepping down from her position, and that her last day will be during the second week of December. After Vidal’s departure, Deputy Director Derrick Brent will take over as Interim Director.

SJC IP Subcommittee Holds USCO Oversight Hearing: On November 13, the Senate Judiciary Committee’s (SJC) Subcommittee on Intellectual Property (IP) held an oversight hearing of the U.S. Copyright Office (USCO), with Register Shira Perlmutter as the sole witness. Subcommittee Chairman Chris Coons (D-DE) made opening remarks, noting that he was interested in learning more about piracy and no-fault injunctions, the U.S. Copyright Office’s AI study, Office modernization, and the Copyright Claims Board (CCB). Ranking Member Senator Thom Tillis (R-NC) stated that he would like to focus on online commercial piracy as well as the 1201 rulemaking, the MLC, the new group registration option for news websites, and AI. In her testimony, Register Perlmutter noted that the Office has been very busy working on a variety of projects, including its AI study, completing year two of the CCB, and completing the recent Ninth Triennial Rulemaking Proceeding. The Register noted that the Copyright Office continues to make progress on registration modernization efforts and will be asking for increased funding for modernization for fiscal year 2026 to expedite its registration modernization efforts. The Subcommittee members in attendance asked a variety of questions that touched on topics such as, the application of fair use in the context of AI ingestion, AI transparency, performing rights organizations, Spotify’s re-bundling of its Premium subscription plan, the CCB, registration modernization, pirate website blocking legislation, and the operation of the new group registration option for updates to news websites.

Senator Welch Introduces TRAIN Act to Address AI and Copyright Transparency Issues: On November 21, Senator Peter Welch (D-VT) introduced the Transparency and Responsibility for Artificial Intelligence Networks (TRAIN) Act, which creates a new administrative subpoena process in the Copyright Act that allows for a copyright owner to request the clerk of the U.S. district court to issue a subpoena to a generative AI developer or deployer for disclosure of copies or records “sufficient to identify with certainty” the copyrighted works they believe to have been used in AI training. Failure to comply with a subpoena creates a rebuttable presumption that the model developer made copies of the copyrighted work. In a press release, Senator Welch stated: “We need to give America’s musicians, artists, and creators a tool to find out when A.I. companies are using their work to train models without artists’ permission. As A.I. evolves and gets more embedded into our daily lives, we need to set a higher standard for transparency.”

SCOTUS Invites Solicitor General to File Brief in Sony v. Cox Case: On November 26, the U.S. Supreme Court invited the office of the Solicitor General to file a brief expressing the views of the United States on the petitions for cert in the Sony v. Cox case—in which the Court of Appeals for the Fourth Circuit held Cox liable for contributory copyright infringement, but not for vicarious copyright infringement, for Cox users’ infringements of songs owned by the record label plaintiffs. The Supreme Court’s invitation for the Solicitor General’s brief could be a precursor to the Court taking the case. The Copyright Alliance has filed an amicus brief in support of Sony in this case.

Copyright Claims Dismissed in Raw Story Media v. OpenAI: On November 7, a Southern District of New York court granted OpenAI’s motion to dismiss Section 1202(b) claims alleging that the AI company was liable for the removal of copyright management information (CMI) from articles owned by news organizations, Raw Story Media, Inc., and AlterNet Media Inc. The news organizations sued OpenAI in February 2024, alleging that the plaintiffs’ news articles were used with authorization to train the ChatGPT model. The court explained that the Second Circuit has found Section 1202(b) of the Copyright Act to incorporate a double scienter requirement, meaning that the defendant both knew “that CMI has been removed or altered without authority of the copyright owner or the law” and know “or hav[e] reasonable grounds to know that such distribution will induce, enable, facilitate, or conceal an infringement.” Finding that the plaintiffs had not met the requirement, the court held that they lacked standing to pursue the claims and granted OpenAI’s motion to dismiss in its entirety. In its conclusion, the court noted that while it was “skeptical about Plaintiffs’ ability to allege a cognizable injury,” that it was prepared to consider an amended pleading, at least as to injunctive relief.

Jetflicks Computer Programmer Convicted for Role in Piracy Operations: On November 14, a federal jury in Las Vegas convicted Yoany Vaillant of one count of conspiracy to commit criminal copyright infringement in a series of convictions for defendants involved in operating popular piracy website, Jetflicks. Vaillant worked as a computer programmer at Jetflicks, contributing to the operations of the websites.

OpenAI Destroys Evidence in NYT Lawsuit: On November 20, The New York Times and Daily News filed a supplemental letter to the judge presiding over their lawsuit against OpenAI, detailing that OpenAI engineers had erased the plaintiffs’ programs and search result data to search for plaintiffs’ copyrighted works in OpenAI’s training datasets. Plaintiffs also detailed that despite sharing information of URLs to plaintiffs’ copyrighted works and instructions on identifying portions of those works in the AI training datasets, plaintiffs have not yet received results from OpenAI or confirmation that the company has started working on them. Plaintiffs requested that OpenAI run the searches in a timely manner or that the Court order OpenAI to identify and admit which of the plaintiffs’ works were used to train each of the GPT models. 

Plaintiffs Drop DMCA Claims in Visual Artist Class Action Lawsuit Against OpenAI: On November 21, visual artist plaintiffs in their class action lawsuit against OpenAI, Andersen v. Stability AI, filed a notice of voluntary dismissal, dismissing claims related to removal of copyright management information (CMI) under the Digital Millenium Copyright Act (DMCA). The plaintiffs moved to dismiss with prejudice in order to move forward with their lawsuit in light of the court’s previous ruling in Doe v. GitHub, where it held that DMCA Section 1202(b) claims require “identicality” between original works and copies from which CMI is removed. However, the plaintiffs noted that in the event the Ninth Circuit does not require “identicality” in Section 1202(b) claims, the plaintiffs would request for reconsideration of the DMCA claims. Additionally, named plaintiffs, Kelly McKernan and H. Southworth pka Hawke Southworth withdrew from the lawsuit.

Court Rules that News Organization’s CMI Removal Claim Survives Motion to Dismiss in AI Lawsuit: On November 21, the district court for the Southern District of New York ruled that claims made by news organization, The Intercept Media (Intercept), that violated Section 1201(b)(1) of the Digital Millennium Copyright Act (DMCA) by stripping copyright management information (CMI) from Intercept’s works can move forward in the lawsuit. This is the first case where such claims have survived past a motion to dismiss. Intercept brought its lawsuit against OpenAI and Microsoft in February 2024, alleging that the defendants removed CMI from plaintiffs’ copyright-protected articles that were used without authorization to train ChatGPT. The lawsuit does not include any copyright infringement claims.

247TVStream Operators Charged with Criminal Copyright Infringement: On November 19, the U.S. Attorney’s Office for the Eastern District of New York announced the arrest and indictment of Noor Nabi Chowdhury and his brother, Mohammad Mahmudur Rahman, with conspiracy to provide to the public an illicit digital transmission service, an illicit digital transmission service, conspiracy to commit wire fraud, and aggravated identity theft. According to charges, Chowdhury and Rahman ran a pirate streaming website called 247TVStream that offered live television and sports programming. The harm to copyright owners and licensed streaming services amounted to more than $100 million. U.S. authorities worked in partnership with UK, Canadian, and Dutch police authorities on this case.

Arcom Issues Report on Rights Enforcement Tools Offered by OSPs: On October 25, French telecommunications regulator, Arcom, issued a report that evaluated various pirated content recognition tools and rights management tools offered by various Online Service Providers (OSPs). Arcom noted that several major OSPs, including X, do not have content recognition tools, nor do they implement effective measures to prevent the upload of pirated works. The report also details difficulties encountered by rightsholders when using other enforcement tools, including Facebook’s Rights Manager tools.

Philippine IP Office Grants Requests to Block Domain Names of Pirate Websites: The Intellectual Property Office of the Philippines (IPOPHL) granted requests made by the Motion Picture Association (MPA) to have local Internet Service Providers (ISPs) block six domain names of websites offering pirated movies. Launched in January 2024, website blocking measures in the Philippines stem from a voluntary memorandum of understanding that is overseen by the IPOPHL.

UK IPO Publishes Proposal on Equitable Remuneration for Foreign Sound Recording Performers: On November 5, the UK Intellectual Property Office (UK IPO) announced a proposal to amend its copyright law to permit equitable remuneration for public performances and broadcasts of sound recordings in the UK. The UK IPO proposes that such royalties may be paid out to foreign performers where “the producer of the sound recording of their performance is a national of the UK or certain other countries, including any country that is party to the Rome Convention.”

EU Publishes Draft of ‘Code of Practice’ for AI Act: On November 14, the European Commission published a first draft of a Code of Practice that provides guidance on various provisions of its AI Act. The draft Code requires signatories to develop and implement an internal policy on compliance with EU law on copyright and related rights to cover the entire lifecycle of a general-purpose AI model. Related to transparency requirements for general purpose AI providers, the draft Code states that signatories “will employ” crawlers that respect the Robot Exclusion Protocol and that signatories who also provide online search engine functions should take appropriate measures to ensure the protocol does not negatively affect the findability of content in the search engine. Further, the draft Code provides that signatories will take reasonable measures to exclude pirated sources from their crawling activities, such as by excluding websites listed in the Commission Counterfeit and Piracy Watch List. The draft Code also states that signatories will make public all information about measures adopted and implemented with respect to identifying and complying with opt-outs of copyright owners from the EU’s text and data mining exception. Such documentation, which will be published on signatories’ websites, must detail the name of all web crawlers used to develop the signatory’s AI models and their relevant robots.txt features included at the time of crawling. Signatories are also expected to keep documentation up to date regarding training, testing, and validation about the use of protected content for AI training, and provide such documentation upon the AI Office’s request.

German Collecting Society Sues OpenAI: On November 13, German music royalties collecting society, GEMA, sued OpenAI in the Regional Court of Munich over the unlicensed reproduction of song lyrics in GEMA’s repertoire by OpenAI’s large language model, ChatGPT. GEMA CEO Dr. Tobias Holzmüller said, “Our members‘ songs are not free raw material for generative AI systems providers‘ business models. Anyone who wants to use these songs must acquire a license and remunerate the authors fairly. We have developed a license model for this. We are taking and will always take legal action against unlicensed use.”

Dutch Court Grants Pirate Website Blocking Order: Dutch anti-piracy group, BREIN, announced that the Rotterdam District Court granted an injunctive order to Dutch Internet Service Provider (ISP), Odido, to block access to the pirate torrent website, TorrentGalaxy, and its proxy and mirror domains. The court stated that BREIN had taken sufficient steps by contacting the site, hosting provider, registrant, registrar, and registry of each domain to warrant the website blocking order.

Indian News Publisher Sues OpenAI: According to reports, Indian news publisher, ANI, sued OpenAI for using its news content to train ChatGPT. ANI alleges that ChatGPT can be prompted by users to generate ANI’s content verbatim.

G20 Leaders Issue Declaration Reiterating Respect and Support for IP Rights: On November 19, leaders of the G20 released the Rio de Janeiro Leaders’ Declaration, which addresses major global challenges, including those posed by digital and emerging technologies. In paragraph 29 of the Declaration, the G20 recognizes the speedy development of AI technologies and that “[t]ransparency, with appropriate safeguards, and explainability regarding data, algorithms and content moderation that respects intellectual property rights and privacy, and data protection, can be key for building healthy information ecosystems.” Paragraph 78 also states that AI technologies must “ensure fairness respect for intellectual property, data protection, privacy, and security.”

EUIPO Releases Report on Counterfeit Goods: The Directorate-General for Taxation and Customs Union (DG TAXUD) and the European Union Intellectual Property Office (EUIPO) published a report on counterfeit goods enforcement efforts and counterfeit goods consumption in the EU. The report revealed that EU authorities detained more than 152 million counterfeit goods with a total estimated retail value of approximately 3.4 billion Euros. The top five product categories in terms of detained counterfeit goods were games, followed by toys and recorded CDs and DVDs.

Spain Issues Draft Decree on Extended Collective Licensing Regime for Copyrighted Works Used for AI Training: On November 25, the Spanish government launched a consultation related to a draft royal decree that would introduce an extended, non-exclusive collective licensing regime for the use of copyrighted works to train general-purpose AI models. Extended collective licenses permit collective management organizations to grant non-exclusive licenses on behalf of rightsholders regardless of whether the rightsholder has authorized the organization to offer such a license. The Spanish government proposes that the license last up to three years. Comments are due December 10.

Canadian News Publishers Sue OpenAI: On November 28, a group of Canadian news publishers including The Canadian Press, Torstar, Globe and Mail, Postmedia, and CBC/Radio-Canada filed a lawsuit against OpenAI over the unauthorized use of its news content to train ChatGPT. The organizations gave a joint statement, saying: “News media companies welcome technological innovations. However, all participants must follow the law, and any use of intellectual property must be on fair terms. OpenAI regularly breaches copyright and online terms of use by scraping large swaths of content from Canadian media to help develop its products, such as ChatGPT. OpenAI is capitalizing and profiting from the use of this content, without getting permission or compensating content owners.”

Australian Senate Committee Notes Harms to Copyright Owners by AI; Recommends AI Transparency Obligations for AI Companies: In the end of November, Australia’s Senate Committee on Adopting Artificial Intelligence published a report on the regulation, development, and impact of AI in Australia, in which the committee recommended that the Australian government to consult with copyright owners on the “the unprecedented theft of their work by multinational tech companies operating within Australia.” The committee also recommended that the Australian Government place obligations on AI companies to ensure transparency and proper licensing of copyrighted works used to train AI models. The report also recommends the creation of a fair remuneration regime to pay “creators for commercial AI-generated outputs based on copyrighted material used to train AI systems.” The report also details the committee’s frustrations with opaque responses from various technology companies including Google, Meta, and Amazon about their AI training procedures and processes. Various rights holder organizations including the Australian Recording Industry Association (ARIA) and the Phonographic Performance Company of Australia (PPCA).

The Atlantic Releases Report About TV Shows and Movies Used to Train AI: The Atlantic released an investigative report on an AI-training dataset called OpenSubtitles used by Apple, Anthropic, Meta, Nvidia, Salesforce, Bloomberg, and other AI companies to train large language models. The OpenSubtitles dataset includes information transcribed with optical-character-recognition (OCR) software from Oscar-nominated movies, popular television shows, and live broadcasts from awards shows.

SoundExchange Strikes Reciprocal Royalties Deal with SAMPRA: On November 18, SoundExchange and the South African Music Performance Rights Association (SAMPRA) announced a deal to ensure reciprocity of royalties payable to performers for the use of sound recordings in the United States and in South Africa. “The successful execution of this agreement is directly tied to the advocacy SoundExchange demonstrates around the world on behalf of the creators we represent,” said Michael Huppe, President and CEO of SoundExchange. “I am pleased that our case for fairly paying creators for their work resonated so deeply with SAMPRA and has resulted in a significant step forward for U.S. performers.” Pfanani Lishivha, CEO of SAMPRA, noted, “The conclusion of this reciprocal agreement demonstrates SAMPRA’s commitment to properly administer neighboring rights in South Africa.”

HarperCollins Agrees to AI Licensing Deal: According to reports, major publisher HarperCollins reached an agreement with Microsoft to permit the use of select nonfiction backlist titles to train and develop AI models. Last April, HarperCollins had announced a partnership deal with AI company ElevenLabs to produce foreign language audiobooks.

Save the Date For…

CCC Webinar on Global Copyright Challenges: On December 3, the Copyright Clearance Center (CCC) will host a complimentary one-hour webinar that “explores global copyright challenges in a business environment.” This session will offer an overview of global copyright fundamentals; the complexities of global copyright in today’s business world; tips on strategies for success; and a question-and-answer session.

CCC Webinar on Copyright 101 for Academia: On December 4, CCC will host a webinar titled Copyright 101 for Academia. The session will cover copyright law and its impact on college and university faculty, staff members, and students. This instructor-led certificate course includes group discussions, question and answer sessions, and analysis of real-world scenarios to help build a foundational understanding of U.S. copyright law and best practices to manage copyright compliance in higher education.

CCC Copyright 101 Webinar: On December 10, CCC will host a webinar focusing on the basics of copyright law, including the intent of Section 107 of the Copyright Act on Fair Use; a discussion of best practices for the use of copyrighted content; an examination of the purpose of U.S. copyright law; potential acts of copyright infringement; copyright implications for the use of digital content; and more.

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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