November 2022 Roundup of Copyright News
Artificial Intelligence (AI) issues heated up quickly in November, with a major visual arts community and an AI developer making changes to their policies on AI use of copyrighted works and with a lawsuit filed over the use of software for AI training. But copyright-related AI issues were not the only ones to keep creators and copyright owners busy this past November. Here is a quick snapshot of these and many other copyright-related activities that occurred during the month of November as well as a few events to look forward to for the month of December.
Copyright Alliance Activities
Copyright Alliance Launches New CCB Video: On November 15, the Copyright Alliance launched our latest Copyright Claims Board video to provide answers to questions that respondents involved in a CCB case may have regarding whether to participate in or opt out of a CCB claim. For additional CCB resources, visit our CCB Explained webpage.
Copyright Alliance Publishes AI Position Paper: On November 21, the Copyright Alliance published its position paper on copyright-related Artificial Intelligence (AI) issues. In the paper, we highlight the importance of preserving and protecting copyright works and the creators who make them when considering AI issues and policies and lay out general principles including that: (1) when formulating new AI laws and policies, it is essential that the rights of creators and copyright owners be respected; (2) long standing copyright laws and policies must not be cast aside in favor of new laws or policies obligating creators to essentially subsidize AI technologies; and (3) education is paramount in the AI space.
Copyright Alliance Submits Comments to UK Parliament on AI Governance: On November 23, the Copyright Alliance filed a submission responding to the United Kingdom Parliament’s Science and Technology Committee’s Call for Evidence on Artificial Intelligence (AI) Governance. The comments describe the relationship between AI and copyright law, explain that the protection of creative works is foundational to AI innovation, and urges the UK government to respect and preserve copyright law when examining and formulating AI policies.
Copyright Alliance Blogs: The Copyright Alliance posted some new blogs during the month of November.
- In his annual Thanksgiving blog our CEO, Keith Kupferschmid, highlighted his appreciation for certain members of the copyright community who helped the Copyright Alliance continue advocating for strong copyright laws and protections for the creative community in 2022.
- The Copyright Alliance celebrated Native American Heritage Month by dedicating a webpage sharing educational and anti-racism resources and by exploring in this blog the protections for indigenous artists against infringement and appropriation.
Copyright Office Activities
CCB Status Update: At the end of November, 250 total cases were filed with the Copyright Claims Board (CCB), an increase of 25 from the previous month. Ninety-four of the cases are “smaller claims.” In at least 82 of the cases, the claimant is using legal counsel. At least 210 of the cases involve infringement claims, 41 involve Section 512(f) misrepresentation claims, and four involve non-infringement claims. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (130 cases); Literary Works (37); Motion Picture and Audiovisual Works (40); Sound Recordings (19); Musical Works (14); and some cases include claims for multiple works. 33 foreign resident(s) have filed claims. 18 claimants have filed multiple cases. 98 cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (10); Due to Failure to Amend Noncompliant Claim (77); and Claimant Withdrawal and Dismissal of Claims (11). There are five active proceedings.
USCO and USPTO Announce NFT Study and Roundtables: On November 23, the U.S. Copyright Office and the U.S. Patent and Trademark Office published a notice of inquiry announcing a joint study regarding issues of intellectual property (IP) law and policy associated with non-fungible tokens (NFTs). Comments are due by January 9, 2023. Roundtable 3, which is titled Copyright and NFTs, will be held on January 18, 2023. Requests to participate as a panelist must be received by December 21. Additional information is available on the Copyright Office’s NFT Study webpage.
USCO Receives Comments on “Smaller Claims” Procedures: On November 14, the Copyright Office received two comments in response to its request for comments regarding the Copyright Claims Board (CCB) procedures for “smaller claims.” The Copyright Alliance submitted comments suggesting that the Office clarify various parts of the rule including that claimants may change their choice of proceeding between a smaller claims process and the standard process, and when in the CCB process a claimant would be permitted to make such a change.
CRB Proposes Royalty Rates for Making and Distributing Phonorecords of Nondramatic Musical Works: On November 7, the Copyright Royalty Board (CRB) published its proposed rates applicable from January 1, 2023, to December 31, 2027, for the section 115 statutory license for making and distributing phonorecords of nondramatic musical works. Comments or objections on the proposed rates are due by December 7.
USCO to Hold Monthly Recordation System Webinars: The Copyright Office will hold monthly webinars to keep the public updated on the Office’s optimized Recordation System. Separate from the Office’s registration application, the new recordation system allows users to electronically transfer their copyrights to someone else. The upcoming webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live question-and-answer session.” The first webinar will be held on December 1, 2022, at 1 p.m. ET, featuring a walkthrough of the application dashboard and submission wizard.
Congressional Copyright Related Activities
Performing Artists Urge Legislators to Support AMFA: On November 1, more than 60 music artists, including Gloria Estefan, Cyndi Lauper, and Jackson Browne, sent a joint letter to the Senate Judiciary Committee through the musicFIRST organization, urging lawmakers to pass the American Music Fairness Act, which would ensure payments for performing artists when songs are broadcasted over the air.
Hakeem Jeffries Selected to Lead House Democrats: On November 30, Representative Hakeem Jeffries (D-NY), became the first black lawmaker to lead a Congressional party as House Democrats elected him to succeed Representative Nancy Pelosi (D-CA). Representatives Katherine Clark (D-MA) and Peter Aguilar (D-CA) were also elected to join the party’s top leadership. Representative Jeffries is a big supporter of the creative community, supporting key pieces of copyright legislation including introducing the Copyright Alternative in Small-Claims Enforcement (CASE) Act and co-sponsoring the Music Modernization Act (MMA).
Copyright in the Courts
Jury Awards Record Labels $46.7 Million In Lawsuit: On November 3, a jury in the district court for the Western District of Texas awarded a group of record labels, including Universal Music Group, Sony Music Entertainment, and Warner Records, $46.7 million in statutory damages for the 1,403 songs pirated by the users of the internet service provider, Grande Communications.
U.S. Authorities Seize Website of Popular Pirate E-Book Provider, Z-Library; SiteOperators Charged with Criminal Copyright Infringement: Since November 4, the popular pirate e-book site, Z-Library, has been seized by the Federal Bureau of Investigation (FBI) and the U.S. Attorney’s Office for the Eastern District of New York. On November 16, the U.S. Department of Justice announced that the district court for the Eastern District of New York unsealed an indictment against Anton Napolsky and Valeriia Ermakova, the operators of the popular e-Book pirate site Z-Library. Napolsky and Ermakova are charged with criminal copyright infringement, wire fraud, and money laundering for operating Z-Library, and were arrested in Argentina.
Movie Studios Awarded $51.6 Million in Infringement Case: On November 18, the district court for the Central District of California awarded $51.6 million in damages for group of movie studio plaintiffs including Columbia Pictures, Disney Enterprises, Paramount Pictures, Warner Bros. Entertainment, and Universal against the operators of the illicit site, Nitro. The court additionally made a preliminary injunction into a permanent injunction against the defendants and third-party companies which hosted Nitro, ordering the parties from further infringing activities and from modifying, selling, or deleting the Nitro domains until they are transferred to the plaintiffs.
Ninth Circuit Upholds Unicolors’ Registration in SCOTUS Remand: On November 10, the Ninth Circuit Court of Appeals held that Unicolors, a textile and garment company, had a valid copyright registration to a group of fabric designs because the company lacked the requisite knowledge of the inaccuracy of the publication of the fabric designs in the registration application. The case was remanded to the court after the U.S. Supreme Court, earlier this year, held that mistakes of law or fact on copyright registration applications will not invalidate the registration.
Software Coders File Class Action Lawsuit Against Microsoft for Training AI Tool with Open Source Code: On November 3, a group of GitHub programmers filed a class action lawsuit against Microsoft and Open AI for allegedly violating their open source licenses and scraping their code to train Microsoft’s AI tool, GitHub Copilot.
Court Awards Broadcasters $15.7 Million and Permanent Injunction Against Pirate IPTV Providers: On November 4, the district court for the Eastern District of Michigan awarded plaintiffs, DISH Network and the International Broadcaster Coalition Against Piracy, a default judgment resulting in a $15.7 million award and permanent injunction against Iraq-based pirate IPTV provider, iStar. The court declined to extend the injunction against third party service providers unless the plaintiffs specifically named the services and provided evidence of how these services allow for the defendants to conduct their infringing activities.
Copyright in Other Countries
Indian Court Orders Country Regulators to Take Action Against U.S. Registrars: On November 9, the High Court of Delhi issued an order directing India’s Department of Communications and Department of Electronics and Information Technology (DeiTY) to take action against several domain name registrars (DNRs) for failing to comply with a dynamic website blocking order. The court also requested that DeiTY investigate whether the DNRs “ought to be permitted to continue to offer their goods and services in India…” Indian sports broadcasters, Star India and Novi Digital Entertainment, were awarded the injunction from the court, but several DNRs failed to comply. One of the domain name registrars, NameCheap, indicated that it requires a U.S. state or federal court order to comply with any website blocking injunctions.
Canadian Court Grants Blocking Order Against Pirate Streaming Websites of Live NHL Games: On November 21, the Federal Court of Appeal in Canada granted a new injunction for a group of plaintiff Canadian broadcast companies. The injunction directs Canadian Internet Service Providers to block or attempt to block access to websites livestreaming National Hockey League (NHL) games for the 2022-23 season. Previously, the broadcasters were granted a similar pirate website blocking order for NHL’s 2021-2022 season.
Japanese Court Orders “Fast Movie” Uploaders to Pay $3.56 Million: According to reports, the Tokyo District Court ordered two individuals to pay $3.56 million to a group of media company plaintiffs for uploading truncated popular mainstream movies to Youtube, known as “Fast Movies.” In 2021, the defendants also received criminal punishment for the activities via prison sentences and fines.
Artist Behind AI Generated Work Sends Appeal Letter to USCO: On November 21, visual artist, Kristina Kashtanova, sent a letter to the U.S. Copyright Office, appealing the Office’s decision to retract its grant of a copyright registration for the graphic novel work, Zarya of the Dawn, which was generated by the AI machine, Midjourney. In late October, the Office sent notice that it would cancel Kashtanova’s registration because it deemed that the work did not have human authorship. The appeal letter details Kashtanova’s creative process to argue that the artist was the author of the visual work, that the work can be distinguished from autonomously generated AI works, and that Midjourney was merely a tool used by the artist to create the work.
Stable Diffusion Update Makes It More Difficult to Emulate Artist’s Styles: According to reports, updates to Stable Diffusion, the AI machine which generates images, have made it more difficult for its users to generate images in the styles of specific artists, nude or pornographic images, and realistic images of celebrities.
DeviantArt Enables Artists to Prevent AI Scraping: On November 11, artist community website, DeviantArt, announced that they rolled out an option on their website that enables artists to prevent third parties from scraping artwork for AI use from the platform without the artist’s authorization. Artists who select to opt out of unauthorized scraping would enable their artwork to be appended with an HTML tag that prevents robots from scraping the artwork.
New DCC Report Reaffirms ‘Creativity Is an Engine for Economic Change’: On November 1, the Digital Creators Coalition (DCC) released a new report that reaffirms “Creativity is an engine for economic growth in the United States, and copyright protection is its fuel, particularly in the digital age.” The report offers insights on how the arts and creative industries—including music, film, television, books, photography, news media, sports, and more—not only drive culture, but also help to perpetuate “a thriving society [for] millions of American creators and [contributes] trillions of dollars to the U.S. economy.”According to astatement about the DCC report by the Recording Industry of America (RIAA), “Across all fields and occupations, the music industry supported directly or indirectly, 2.47 million American jobs. Citing economic activity from the nonprofit arts industry, Americans for the Arts recognizes ‘an additional $102.5 billion in event-related expenditures by their audiences.’”
Look Forward To And Save the Date For…
USCO Recordation System Webinar: On December 1 at 1 p.m. ET, the U.S. Copyright Office will hold its first of its monthly webinar series to keep the public updated on the Office’s optimized Recordation System. Separate from the Office’s registration application, the new recordation module allows users to transfer their copyrights to someone else electronically. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” The December 1 webinar will feature a walkthrough of the application dashboard and submission wizard. Anyone interested in attending (including members of the public) may join the session. More information can be found on the registration page.
RightsClick Copyright Café Q&A: On December 1 at 1 p.m. ET, RightsClick co-founders David Newhoff and Steven Tepp will host a weekly “Copyright Q&A” session on Facebook Live to offer creators a resource for getting answers to their copyright questions. The free session is open to the public and creators across all disciplines are welcome to attend. More information is available on the event page.
ASCAP Song Accelerator Workshop: On December 3 from 12 p.m. to 3 p.m. ET, ASCAP will be hosting a virtual Song Accelerator Workshop on Zoom for songwriters who want to fast track the completion of their works. Attendees are invited to bring their best songs to receive feedback in “a vigorous yet supportive environment.” The workshop is limited to twelve participants. Attendance is free to ASCAP members and $20 for non-members. Workshop leaders are Alex Forbes and Valerie Ghent. More information is available on the registration page.
Deadline to Submit Comments on 2023-2027 Proposed Regulations by Copyright Royalty Board: December 7 is the deadline for comments to the Copyright Royalty Board in response to its proposed regulations for rates and terms for January 1, 2023, through December 31, 2027, for section 115 statutory license for making and distributing phonorecords of nondramatic musical works.
IPO Education Foundation Annual Awards: On December 7 from 6 p.m. to 10 p.m. ET, he IPO Education Foundation will host its Annual Awards and Celebration in Washington, DC. This event is attended by more than 500 members of the IP community to “celebrate modern-day heroes for their accomplishments in the fields of innovation, creativity, and IP rights.” This year, Copyright Alliance VP of Policy and Copyright Counsel Terrica Carrington will be the first to accept the all-new 2022 Inspiration Award. More information is available on the event page.
The Donald C. Brace Memorial Lecture: On December 13 from 6 p.m. to 8 p.m. ET, the Copyright Society will host its 52nd Annual Donald C. Brace Memorial Lecture at Fordham University Law School. The lecture will be presented by Maria Pallante, the President and CEO of the Association of American Publishers, who will present the topic of “The Art of Innovation of Exclusive Rights.” More information is available on the event page.
USCO Ringer Honors Program Application Deadline: December 31 is the deadline to submit applications for the U.S. Copyright Office’s Barbara A. Ringer Copyright Honors Program. The program was created for attorneys in the initial stages of their careers who demonstrate exceptional ability and interest in copyright law. Those selected will serve as full-time federal employees for the term of their fellowships and are eligible for salary and benefits as permitted under federal law. Additional details about the program, including the application process, can be found on the Barbara A. Ringer Copyright Honors Program website.
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