Blogs
November 5, 2024

October 2024 Roundup of Copyright News

by Rachel Kim

In October, the U.S. Copyright Office (USCO) concluded the Ninth Triennial Rulemaking which established exemptions to the Digital Millennium Copyright Act’s (DMCA) prohibition on circumvention of technological protection measures controlling access to copyrighted works. Meanwhile around the globe, over 32,000 creators and copyright owners signed on to a statement on generative AI and other rightsholder organizations continued to urge lawmakers and policymakers to ensure that copyrighted works continue to be protected in the age of AI. Here is a quick snapshot of some of copyright-related activities that occurred during the month of October as well as a few events to look forward to in November.

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

  • The Copyright Alliance’s blog series responding to the National High School Debate Topic continued with a blog post by CreativeFuture’s CEO, Ruth Vitale, a blog post by Copyright Alliance’s VP of Legal Policy and Copyright Counsel, Rachel Kim, and a blog post by the International Intellectual Property Alliance (IIPA)’s International Copyright Policy Counsel, Sydney Blitman.   
  • In celebration of National Hispanic Heritage Month, we explored in this blog post the pioneering impact of Latinx comic book creators and characters. 
  • In celebration of National Book Month, Mary Jo Courchesne of the International Book Publishers’ Association offered perspectives in this blog post on the importance of copyright law from the independent book publishing industry’s point of view.
  • In the spirit of Halloween, we explored the scope of copyright protections for gravestones in this blog post.

CCB Publishes Statistical Summary of Claims and Final Determinations Since Its Inception: The Copyright Claims Board (CCB) published a CCB Statistics Summary that analyzes data gathered from claims and final determinations issued by the CCB from June 2022 (when it was launched) to September 2024. In total, 989 total claims have been filed, with 46% of those claims being filed through the streamlined, “smaller claims” process. In addition, 21% of claimants are represented by outside legal counsel. The CCB also reported that 839 claimants resided in the U.S. while 150 claimants resided outside of the country. Most domestic claimants were from California (168), followed by New York (95), Texas (74), and Pennsylvania (71).

USCO Spanish Language Program ‘Broadens Access to Copyright Information’: On October 3, the Copyright Office announced that it expanded its Spanish Language Program to provide broader access to copyright information for the Spanish-speaking community. Check out the many resources available for Spanish speakers through the Office’s Copyright in Spanish home page.

USCO Publishes Final Rule Adjusting Fees and Process of CCB Final Determination Certifications: On October 4, the Copyright Office published a final rule adjusting the process and fee to obtain a certified official record of a final determination from the Copyright Claims Board (CCB). The Office noted that the prior process of requesting a certified official record of a CCB final determination could result in combined fees that amount to more than the cost of initiating a CCB proceeding. In the final rule, the Office makes the CCB itself responsible for handling these requests, clarifies that only the final determination or amended final determination itself must be certified (and not the entire record), and sets the certification fee to $15.

USCO Demos Pilot Version of New Registration System During First Meeting of 2024-27 CMPC: On October 10, the Library of Congress (LOC) and the Copyright Office held the first meeting of the 2024-27 Copyright Public Modernization Committee (CPMC), featuring 13 members—six members who served on the previous CPMC and seven new members. Register of Copyrights, Shira Perlmutter, gave opening remarks, noting that the Enterprise Copyright System (ECS) development teams are continuing to add capabilities to the recordation and public records components of ECS, while prioritizing the registration component. Register Perlmutter shared that a pilot of the registration component will begin in December 2024. Associate Register, Rob Kasunic, also gave a demonstration of the new ECS registration system pilot, which displayed modernized user interfaces, the ability to view previews of uploads, faster and better upload capabilities, and capabilities to easily populate titles of multiple works using their file names. Kasunic also announced that the Office will be looking to move from physical copyright registration certificates to digital registration certificates. Moderated testing of the new registration system is scheduled to occur between January and February 2025, with a full integration of the various components slated to occur in late 2025. At the conclusion of the meeting, it was announced that the next meeting of the CPMC is likely to occur in early 2025 so the ECS development teams can report on the initial results of the pilot program. A recording of the webinar will likely be posted on the Copyright Office’s IT modernization webpage.

USCO Publishes Exemptions to Prohibition of Anticircumvention of Technical Protection Measures from Ninth Triennial Rulemaking: On October 28, the Copyright Office and Library of Congress published a final rule adopting exemptions to the provision of the Digital Millennium Copyright Act (DMCA) that prohibits circumvention of Technological Protection Measures (TPMs) that control access to copyrighted works. The Librarian of Congress adopted all of the Register of Copyrights’ recommendations regarding new or expanded exemptions. Existing exemptions for which renewal petitions were filed were all renewed as-is. The Librarian also rejected several petitions for new exemptions based on the Register’s recommendations, including a proposal to exempt the circumvention of TPMs on computer programs for generative AI research.

USCO Sends Letter Responding to Congressional Request for Updates on AI Study: On October 30, Register of Copyrights Shira Perlmutter sent a letter to members of the House of Representatives’ Committee on House Administration in response to the members’ letter asking the Office for an update on the ongoing AI study. The Copyright Office noted that it had published Part 1 of the study on digital replicas in July, and that due to competing statutory and judicial deadlines, timelines for the rest of the report have shifted, but that the current goal is to complete two remaining parts of the study by the end of 2024. The Office also noted that in early 2025, it plans to update its March 2023 registration guidance for works with AI-generated elements and will initiate a request for public comments to revise parts of the Office’s Compendium.

Biden Administration Activities

MPA, ESA, AAP, and RIAA File Comments for USTR Notorious Markets Report: On October 2, the Office of the U.S. Trade Representative (USTR) received 35 comments from stakeholders for its 2024 Special 301 Out-of-Cycle Review of Notorious Markets, including comments from the Motion Picture Association (MPA), Association of American Publishers (AAP), the Recording Industry Association of America (RIAA), and the Entertainment Software Association (ESA).

GAO Publishes Report on GAI Training, Development, and Deployment: On October 22, the U.S. Government Accountability Office (GAO) published a report titled Artificial Intelligence: Generative AI Training, Development, and Deployment Considerations. The report provides an overview of commercial generative AI company practices, including the AI training processes of commercial developers. In the report, GAO explores the impact of training data on the trustworthiness and safety of AI models, noting that foundation models are susceptible to poisoning attacks when training data is scraped from public sources. In a section about the use of publicly available information to train AI models, the report identified the important point that information that is made publicly available may be protected by copyright law. The report also touches on transparency of AI training data, noting that the transparency of this data has worsened over time, that AI “developers have not disclosed the extent to which their training data includes copyrighted information,” and that the legal status of copyright protections in the context of training is unclear.

USPTO Announces Nancy Kamei as Chief Public Engagement Officer: On October 21, the U.S. Patent and Trademark Office (USPTO) announced the appointment of Nancy Kamei as Chief Public Engagement Officer and Director of the Office of Public Engagement (OPE), effective immediately. Kamei will report to USPTO Director, Kathi Vidal, and oversee the strategy, promotion, and implementation of outreach, education, customer experience, and customer engagement activities for the Office.

Author Files New AI Class Action Lawsuit Against Meta: On October 1, author Christopher Farnsworth filed a class action lawsuit in the U.S. District Court for the Northern District of California against Meta Platforms over the unauthorized use of plaintiff’s books to train Meta’s large language model, Llama. Farnsworth claims that his works were a part of the pirated books’ dataset, The Pile, which Meta used to train its AI model.

Fifth Circuit Affirms that Grande is Liable for Contributory Infringement; Remands on Statutory Damages: On October 9, the Court of Appeals for the Fifth Circuit issued an opinion in Universal Music Group v. Grande, affirming the lower court’s decision that Internet Service Provider, Grande, was contributorily liable for the direct infringement of plaintiffs’ music by Grande subscribers but vacating and remanding on statutory damages based on the number of works at issue. Splitting with the majority of other circuit courts, the court held that albums consisting of multiple sound recordings are single compilation works and remanded the case to recalculate the original jury award of $46,766,200 in statutory damages. The Copyright Alliance filed an amicus brief in support of Universal Music Group.

Parties File Opposition Briefs Responding to Cert Petitions in Sony v. Cox: On October 16, Sony Music Entertainment filed an opposition brief in response to Cox Communication’s cert petition appealing a Fourth Circuit ruling in the Sony v. Cox case—in which the court held Cox liable for contributory copyright infringement, but not for vicarious copyright infringement, for Cox users’ infringements of songs owned by the record labels. Cox’s petition asked the Court to weigh in on whether the Fourth Circuit had applied the correct knowledge standards under the doctrines of contributory liability and willful infringement. Sony’s opposition brief argues that the Fourth Circuit’s analysis is consistent with Supreme Court precedent and presented no circuit split issue, and that Cox’s questions presented are not outcome-determinative as resolution under Cox’s proffered standards would still amount to a finding that Cox is liable for willful contributory copyright infringement. On October 21, Cox filed an opposition brief in response to Sony’s cert petition. Sony’s petition asked the Court to weigh in on whether the Fourth Circuit had applied the correct profit standards under doctrine of vicarious liability. Cox’s opposition brief argues that there is no circuit split on the profit standards as applied by the Fourth Circuit in its vicarious liability analysis. The Copyright Alliance filed an amicus brief in support of Sony.

Dow Jones and New York Post Sue AI Company, Perplexity: On October 21, news media companies, Dow Jones & Co. and the New York Post filed a complaint against AI company, Perplexity, over the unauthorized scraping and use of plaintiffs’ copyrighted works, including from the news companies’ websites, to train Perplexity’s large language AI model (LLM). The complaint alleges that the plaintiffs’ copyrighted works are accessed and copied as part of Perplexity’s “retrieval-augmented generation” (RAG) database, which is then used to train Perplexity’s LLM to repackage the original copyrighted works into summaries and responses to users’ prompts. The complaint further alleges that the AI company has marketed their model to encourage customers to “Skip the Links” to the original content. Plaintiffs also allege that their protected news, analysis, and opinion articles have been partially or wholly verbatim reproduced in Perplexity’s AI model output, the frequency of verbatim output increasing with the use of Perplexity’s premium service, Perplexity Pro. The complaint further states that some of the AI generated output falsely attributes certain content to the plaintiffs. Lastly, the plaintiffs point out that they, and other publishers, have established AI licensing markets, and that such licensing deals are “expected to yield significant revenue…” The plaintiffs noted that they sent a letter to Perplexity in July 2024, offering to discuss potential licensing deals, but that Perplexity did not respond.

YouTube Creators Add Copyright Claims in Class Action Lawsuit Against OpenAI: On October 18, Plaintiff-YouTube creators, in their class-action lawsuit against OpenAI, added named plaintiff, Ruslana Petryazhna, and copyright claims, alleging that copyright-protected videos were transcribed and then used without authorization to train OpenAI’s large language models.

Audiovisual Works Rightsholders Call on EU Lawmakers to Strengthen Anti-Piracy Measures: On October 1, the Audiovisual Anti-Piracy Alliance (AAPA) published its first manifesto, which calls on EU lawmakers to strengthen anti-piracy enforcement measures including proposing legislation by November 2025 to immediately take down pirated live content, clarifying take down timelines in the notice-and-take down process under the Digital Services Act, and avoiding creating “safe havens for AI developers to use rights holder content with impunity.”

EU Court of Justice Rules That Variable Data Is Not Protected By Copyright: On October 16, the Court of Justice of the European Union ruled that the EU Copyright Directive does not protect variable data produced by copyright-protected software code and held in Random Access Memory (RAM). Video game company Sony had sued Datel, a company that produces video game cheat software and devices, Action Replay PSP and Tilt FX, arguing that the video game cheat developer was liable for copyright infringement because the cheat products’ variable data generated by the video game’s underlying source and object code, were held in the RAM of the Playstation console during gameplay. The Court of Justice found that variable data does not fall within the protections contemplated by the EU Copyright Directive under Articles 1(1) to (3) because the provisions only protect a computer program’s source code and object code.

EU Court of Justice Rules That Art Designs Originating Outside of EU Can Be Protected by EU Copyright Law: On October 24, the Court of Justice of the European Union ruled that EU law can protect applied art designs originating from outside the EU bloc. The case involved Kwantum, a furniture retail chain in the Netherlands and Belgium, allegedly infringing chair designs originating from the United States, with the copyright owned by Vitra, a Swiss designer furniture company. The case had raised the issue of whether, under EU law and the territorial treatment of copyright protections for applied art under Berne Convention’s provisions, EU copyright protections for applied art would apply when the work originated from outside of the EU. The Court of Justice stated that all EU member states must protect works of art “irrespective of the country of origin of those works or the nationality of their author,” reasoning that Article 1(1) of the Copyright Directive 2001/29 did not contain territorial or geographic requirements as to the country of origin of the work or the nationality of its author.

WIPO Announces WIPD 2025 Theme: On October 17, the World Intellectual Property Organization (WIPO) announced the theme for World Intellectual Property Day (WIPD) via an email to stakeholders. The theme for World IP Day 2025, which will be celebrated on April 26 of next year, is IP and Music: Feel the Beat of IP. In a statement regarding the newly announced theme, WIPO noted that, “For World Intellectual Property Day 2025, let’s celebrate the contributions of those who craft music that brings people together, inspires action, evokes powerful emotions, and drives the change we want to see in the world.”

EU Creators and Rightsholders Call on Lawmakers to Effectively Implement Copyright-Related AI Act Provisions: On October 29, various European based creators and rightsholder organizations, including the European Composer and Songwriter Alliance, European Federation of Journalists, European Publisher’s Council, and the International Video Federation, issued a joint letter calling on European Union (EU) lawmakers to effectively implement the EU AI Act, particularly the provisions obligating providers of general purpose AI models to make publicly available a sufficiently detailed summary of the content used to train their AI models.

Penguin Random House Amends Imprint Pages Addressing AI Scraping and Ingestion: According to reports, global publisher Penguin Random House amended its imprint pages in its books across its markets to include a copyright statement, confirming that “No part of this book may be used or reproduced in any manner for the purpose of training artificial intelligence technologies or systems.” The statement also reserves rights from the text-and-data mining exception in accordance with European Union law.

Adobe Launches AI Opt-Out Watermarking Tool for Creators: On October 8, Adobe announced the Q1 2025 planned launch of the Adobe Content Authenticity web app, which is a free tool that creators can use to apply Content Credentials to their work. The tool includes features such as the ability for creators to sign digital works and mark works with a preference indicating that the creator does not want the work used for generative AI training.

ACE Announces Shutdown of Notorious Sports Piracy Network: On October 29, the Alliance for Creativity and Entertainment (ACE) announced that in a collaboration with Egypt’s Ministry of Justice, it shut down a notorious sports piracy network, called Livehd7. The piracy network had operated since 2020 and had at least 85 associated domains that offered users access to matches from various soccer leagues around the globe. Traffic to Livehd7 networks was logged at more than 17 million monthly visits and more than 257 million visits in the past year.

Over 32,000 Signatories Support Generative AI Statement: A statement (referred to as an open letter) organized by former AI executive, music composer, and CEO of Fairly Trained, Ed Newton-Rex was officially launched on October 22. The statement, which calls for generative AI companies to license the creative works they use to train their systems, reads as follows: The unlicensed use of creative works for training generative AI is a major, unjust threat to the livelihoods of the people behind those works and must not be permitted. At the end of October, the statement had been signed by more than 32,000 creative professionals, executives, and creative community supporters.

OpenAI Researcher Leaves Company Over Copyright Concerns; Argues Mass Ingestion of Copyrighted Works Is Not Fair Use: According to an article from the New York Times, Suchir Balaji, a former artificial intelligence researcher at OpenAI, gave an interview explaining that he left the company because of the way copyrighted works were used to create AI technologies. Balaji shared that ChatGPT and other AI chatbot products are destroying the commercial viability of the creative economy, and opined that “[t]his is not a sustainable model for the internet ecosystem as a whole.” Balaji disagreed with AI companies’ characterizations that the mass ingestion of copyright protected works qualify for the fair use exception, noting that during AI training, a complete copy of the work is made and that, while “outputs aren’t exact copies of the inputs, they are also not fundamentally novel.” Balaji gives a more detailed fair use analysis from a developer’s perspective in a post on his personal website. 

Save the Date For…

WIPO Webinar on AI Output Issues: On November 5 and 6 from 8 a.m. to 5 p.m. ET, the World Intellectual Property Organization (WIPO) will hold a webinar titled Conversation 10: AI Output: To Protect or Not to Protect – That Is the IP Question. The IP queries that will be discussed during this session include: Should AI-generated outputs benefit from copyright protection?; Do AI-generated outputs infringe copyright in works contained in the input training data?; How should IP respond to AI-generated deepfakes and digital replicas? More information is available on the registration page.

CCC Course on Advanced Copyright for Publishing: On November 19 from 1:30-3 p.m. ET, the Copyright Clearance Center (CCC) will host a course consisting of three 90-minute sessions, titled Advanced Copyright for Publishing. The course will cover U.S. copyright law and when permission to use copyrighted materials may be required for content creation and use. Specific course topics include the purpose of U.S. copyright law and some common misconceptions; a discussion of international copyright considerations; a review of the provisions described in sections 106, 107 and 109 of the Copyright Act; best practices for the use of copyrighted content; and the copyright implications of using digital content.

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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