Tag: News Roundup

In January, there was big copyright news coming out from the courts, including two final judgments entered by a court involving concessions of willful copyright infringement and forfeiture of the fair use defense by the appropriation artist Richard Prince. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of January as well as a few events to look forward to in February.

Copyright Alliance Activities

Copyright Alliance and Music Law Pro Host ‘Music Royalties 101’ Webinar: On January 24, the Copyright Alliance and Legal Advisory Board (LAB) member Music Law Pro’s (MLP) Jesse E. Morris and Alexandra Mayo hosted a free webinar titled Music Royalties 101. The session, which drew 240 attendees and included opening comments by Copyright Alliance Copyright Counsel Rachel Kim, was intended to help music creators successfully navigate the music industry, especially in terms of understanding the various revenue streams to ensure proper collection of royalties. A video of the event will be shared in the near future.

Copyright Alliance Blogs: At the top of the month, we published several year-in-review blogs on U.S. Copyright Office’s Activities, Copyright Cases, AI and Copyright In the Courts, and Federal Government Activities related to AI.

Copyright Office Activities

CCB Status Update: At the end of January 2024, 729 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 296 are “smaller claims.” In at least 200 of all cases, the claimant is using legal counsel. At least 644 of the cases involve infringement claims, 124 involve Section 512(f) misrepresentation claims, and 23 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 (320 cases); Literary Works (110); Motion Picture and Audiovisual Works (140); Sound Recordings (73); Musical Works (51); and some cases include claims for multiple works. Ninety-nine foreign residents have filed claims. Of all the cases filed, 579 have been dismissed for the following reasons: Due to Respondent’s Opt Out (69); Due to Failure to Amend Noncompliant Claim (280); Registration Issues (14); Due to Failure to Provide Proof of Service of Process (112); Claimant Withdrawal and Dismissal of Claims (55); Bad Faith Claimant (13); and Settlement (36). There are 42 active proceedings and 18 final determinations.

USCO Publishes NOI to Initiate Review Process of Existing DLC and MLC Designations: On January 30, the U.S. Copyright Office published a notification of inquiry required by the Music Modernization Act (MMA), regarding whether the existing designations of the mechanical licensing collecting (MLC) and digital licensee coordinator (DLC) should be continued. This is the first of the review processes that the Copyright Office is statutorily required to conduct every five years. Initial submissions by the currently designated MLC and DLC must be received by April 1. Written initial public comments must be received by May 29 and reply comments from the public must be received by June 28. Reply comments by the currently designated MLC and DLC must be received by July 29.

USCO Publishes NPRM for Group Registration Option for News Websites: On January 3, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) setting forth regulations to create a new group registration option to register updates to news websites. The proposed rule would permit news publishers to register groups of updates to news websites published within the same calendar month as a collective work for a fee of $95. The proposed rule also directs applicants to file deposit copies consisting of PDF files that each contain a complete copy of the home page of the website. Comments on the NPRM are due to the Copyright Office by February 20.

USCO Publishes Final Rule on CCB ‘Smaller Claims’ Proceedings: On January 16, the U.S. Copyright Office published a final rule clarifying certain procedures and rules for “smaller claims” proceedings before the Copyright Claims Board (CCB). This final rule will become effective on February 15. The final rule, among other things, clarifies that (i) a CCB claimant may change its election for a “standard” CCB proceeding to a “small claims” proceeding before service of the claims and (ii) a CCB Officer can address and impose remedies to address both the failure to submit evidence in accordance with the CCB’s request and/or the submission of evidence that was not served on the other party or provided by the other side. The final rule also states that CCB Officers can hold a conference to explore the possibility of consolidating separate CCB proceedings and claims that arise out of the same facts and circumstances that involve the same or substantially the same parties.

USCO Launches New Webpage for MMA Audit Notices: On January 24, the U.S. Copyright Office announced the launch of a new webpage dedicated to notices submitted under the Music Modernization Act (MMA) of audits of the Mechanical Licensing Collective (MLC) by copyright owners and audits of Digital Music Service Providers (DMPs) of the MLC. The webpage provides instructions on submitting MMA audit notices to the U.S. Copyright Office. To commence an audit, a notice of intent must be filed with the Copyright Office’s General Counsel’s Office and delivered to the parties being audited. The Office must then publish a notice in the Federal Register within 45 days.

CRB Issues Final Rule for Certain Sound Recording Royalty Rates for Business Establishments: On January 3, the0 Copyright Royalty Board (CRB) published a final rule setting forth the royalty rates for the making of ephemeral copies of sound recordings to business establishments for the period of January 1, 2024, through December 31, 2028.

CRB Issues Corrections to Final Rules on Various Royalty Rates: On December 21, the Copyright Royalty Board (CRB) issued a correction to its final rule governing certain sound recording royalty rates for commercial and noncommercial noninteractive webcasters. On the same day, the CRB also issued a correction to its final rule governing musical works royalty rates for making and distributing phonorecords.

Congressional Copyright Activity

SJC PTL Subcommittee Holds Hearing on AI and Journalism: On January 10, the Senate Judiciary Committee’s (SJC) Subcommittee on Privacy, Technology, and the Law (PTL) held a hearing titled Oversight of AI: The Future of Journalism. Hearing witnesses included Danielle Coffey, President and CEO of the News/Media Alliance; Curtis LeGeyt, President and CEO of the National Association of Broadcasters (NAB); Roger Lynch, CEO of Condé Nast; and Jeff Jarvis, Leonard Tow Professor of Journalism Innovation at the City University of New York’s Craig Newmark Graduate School of Journalism. During the hearing, Subcommittee members generally agreed that AI companies should pay media outlets to use articles and other published works for AI training and development. Both Senators and witnesses expressed interest in licensing structures and pointed to other content fields, such as music and television, to demonstrate that a successful licensing regime is possible.

Senate Rules Committee Holds Hearing on Use of AI at LOC, GPO, and Smithsonian: On January 24, the Senate Rules & Administration Committee held a hearing titled The Use of Artificial Intelligence at the Library of Congress, Government Publishing Office, and Smithsonian Institution. Hearing witnesses included Dr. Carla Hayden, Librarian of Congress, Library of Congress; Hugh Nathanial Halpern, Director, U.S. Government Publishing Office; and Meroë Park, Deputy Secretary and Chief Operating Officer, Smithsonian Institution. Senators used the hearing as an opportunity to learn more about AI usage and priorities at the three organizations. Toward the end of the hearing, Senator Hagerty (R-TN) expressed concern over the impact of AI on recording artists and songwriters, and asked Dr. Hayden how the U.S. Copyright Office planned to protect copyrighted works and unauthorized uses of performing artists’ voices at the federal level, what the Office is doing to ensure appropriate licensing from AI companies to use copyrighted materials or other materials implicating a person’s right of publicity or privacy, and whether the Office is considering transparency measures like auditing and record-keeping. Dr. Hayden replied that the Copyright Office is examining these and other related issues, pointing to the Office’s previous public webinars on AI topics and the ongoing AI study.

House Administration Committee Holds Hearing on AI Innovations Within the Legislative Branch: On January 30, the House Administration Committee held a hearing titled Artificial Intelligence (AI): Innovations within the Legislative Branch. The hearing focused on the potential risks and rewards of AI in legislative branch operations. Chair Bryan Steil (R-WI) and Ranking Member Joe Morelle (D-NY) emphasized the need for AI governance plans and transparency. Witnesses included Taka Ariga, Chief Data Scientist and Director of the Innovation Lab, Science, Technology Assessment, and Analytics, Government Accountability Office (GAO); John Clocker, Deputy Chief Administrative Officer, U.S. House of Representatives; Judith Conklin, Chief Information Officer, Library of Congress; and Hugh Halpern, Director, U.S. Government Publishing Office. Chair Steil asked Conklin to explain how AI could be used in relation to Copyright Office records. Conklin replied that the Library of Congress is currently experimenting with the Copyright Office’s historical data to make it more discoverable and searchable to make it beneficial for researchers. Representative Sewell (D-AL) asked Conklin about the Library’s stance on copyright and ethics concerns in relation to AI generated content. Conklin replied that the Library has been considering bias and ethics concerns in their research and collaborations and that the Library remains committed to providing trustworthy and authoritative data. Top takeaways from the hearing is available on the Committee’s webpage.

Rep. Leger Fernandez Reintroduces Creative Workforce Investment Act: On January 10, Representative Teresa Leger Fernandez (D-NM) reintroduced the Creative Workforce Investment Act (formerly known as the Creative Economy Revitalization Act), H.R. 6935, which would create a $300 million Department of Labor and National Endowment for the Arts Grant Program to fund workers in the creative sector to create public art projects and initiatives. In addition to the change in the bill title, the new bill ensures that arts educators can benefit from the grant program.

Deborah Robinson’s IPEC Confirmation Heads to Senate Floor Following SJC Vote: Following Deborah Robinson’s renomination to become the Intellectual Property Enforcement Coordinator (IPEC) by President Biden on January 9th, the Senate Judiciary Committee (SJC) held a hearing on January 18th. Robinson was voted favorably out of the committee, 13-8, meaning her nomination will head to the Senate floor for the second time. The Copyright Alliance issued a statement in support of Robinson’ re-nomination and recirculated a prior industry letter in support of her nomination.

Go Pack Go Act Introduced: On January 11, Representative Mike Gallagher (R-WI) introduced the Go Pack Go Act. The bill would amend the Communications Act and Copyright Act to require cable, satellite, and other video providers to grant their Wisconsin subscribers access to programming from broadcast television stations in a Wisconsin media market. According to the office’s press release, 13 Wisconsin counties are assigned to an out-of-state local TV market in either Minnesota or Michigan. This bill would ensure that every Wisconsin cable or satellite subscriber who lives in these 13 counties has the choice of receiving an in-state broadcast for every major network, so they would always have access to Wisconsin-based news, information, and sports. Senator Baldwin (D-WI) previously introduced companion legislation in the Senate, S. 2857.

Biden Administration Activities

USTR Releases 2023 Notorious Markets Report: On January 30, the Office of the U.S. Trade Representative (USTR) released its 2023 Review of Notorious Markets for Counterfeiting and Piracy, which highlights online and physical markets that engage in or facilitate substantial trademark counterfeiting or copyright piracy. This year’s report identifies 39 online markets and 33 physical markets reported to engage in or facilitate intellectual property theft, including 2embed, The Pirate Bay, LibGen, Sci-Hub, Fmovies, and Aniwatch. “The trade in counterfeit and pirated goods harms workers, consumers, and small businesses, and ultimately hurts the U.S. economy,” stated Ambassador Katherine Tai.  “This year’s Notorious Markets List is significant because it underscores the potential dangers of counterfeit goods and why robust enforcement to combat trade in these goods is important to growing our economy from the middle out and the bottom up.” More information is available in USTR’s press release.

Copyright in the Courts

Final Judgments Issued Against Appropriation Artist, Richard Prince, in Two Copyright Infringement Cases: On January 25, the district court for the Southern District of New York issued final judgments in two copyright infringement lawsuits brought by photographers against appropriation artist, Richard Prince. InGraham v. Prince, photographer, Donald Graham, sued Prince in 2015 over the unauthorized use by Prince of Graham’s photograph, Rastafarian Smoking a Joint, in a portrait that was featured in a catalog, compilation work, and billboard. Graham was represented by Copyright Alliance Legal Advisory Board member Cravath, Swaine and Moore LLP. In McNatt v. Prince, photographer, Eric McNatt, sued Prince in 2016 over the unauthorized use by Prince of McNatt’s photograph in a portrait that was featured in an exhibition and a book. The district court held in favor of the photographers in both cases in May 2023, denying Prince’s and co-defendant art galleries’ motions for summary judgment in the two cases and finding that the fair use exception did not excuse the infringement. In both of the final judgments for the McNatt case and the Graham case, Prince was found liable for willful infringement of the photographs, and relinquished all defenses, including the fair use defense. This is a remarkable and significant departure from Prince’s history of fighting and prevailing in copyright infringement lawsuits on the basis of fair use, marking a new era in fair use jurisprudence following the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith last year. In both Graham and McNatt, Prince was liable for damages in an amount equal to five times the respective retail prices of the infringing portraits in addition to other costs incurred by the plaintiffs. The Copyright Alliance initiated a statement, applauding the two final judgments and their impact in a post Andy Warhol Foundation v. Goldsmith fair use landscape. Prince’s representatives made statements in a feeble attempt to reduce the impact of the final judgments. Thjose statements are wrong as  Prince clearly admits to all claims that were filed, including willful infringement, and he paid more than either plaintiff, especially Graham, could have received in statutory damages had the cases gone to trial. We commend the legal team at Cravath, Swaine & Moore, who worked on the McNatt and Graham cases for many years to ensure that two independent artists could prevail against the significant resources of Richard Prince and his galleries.

Jury Finds No Substantial Similarity in Copyright Infringement Case Against Tattoo Artist, Kat Von D: On January 26, a jury in the Central District of California found in favor of tattoo artist Kat Von D in a copyright infringement suit brought by Jeff Sedlik in 2021 for the unauthorized use of his photograph of Miles Davis in the preparation, promotion, and creation of a Miles Davis tattoo. The jury found that the tattoo and some of the social media posts were not substantially similar to the photograph. Out of 15 social media posts, the parties agreed that four contained a substantially similar laser printed copy of the photograph, and so the jury was only asked to make a fair use decision on those posts, which it held in favor of Von D. Sedlik’s attorney stated that Sedlik will appeal the decision to the Ninth Circuit. More background on the case, including the court’s order on motions for summary judgment, can be found here.

George Carlin’s Estate Sues Media Company Over Audio Work Replicating Carlin’s Voice and Style: On January 25, the estate of George Carlin filed a lawsuit against Dudesy, a media company behind an AI-generated hour-long audio work that replicates Carlin’s voice and comedy style, in the Central District of California for state rights of publicity violations and willful copyright infringement. The complaint alleges that the AI-generated material, titled “George Carlin: I’m Glad I’m Dead,” was created by making unauthorized copies of five decades of Carlin’s copyrighted stand-up comedy routines and ingesting them into an AI model called Dudesy AI. The complaint also appears to address potential forthcoming fair use arguments by explaining that the material does not “satirize Carlin as a performer or offer an independent critique of society” and that it acts as a substitute because “it discourages people who may be unfamiliar with Carlin’s work from seeking it out.”

Briefs Filed in SCOTUS Copyright Damages Case: On January 5, respondent, Nealy, filed his brief in the U.S. Supreme Court (SCOTUS) case, Warner Chappell Music, Inc. v. Nealy. The case involves questions over whether the Copyright Act permits damages to be collected from the date of infringement even if such damages occur more than three years before a lawsuit was filed. The Eleventh Circuit had held for the respondent, ruling that he may collect damages for a timely filed infringement claim where the infringing acts occurred more than three years before the filing of the lawsuit. The respondent argues that under the express language of the relevant provisions in the Copyright Act, the Court should adopt the Eleventh Circuit’s rule. On January 12, various amicus briefs were filed by multiple parties in support of respondent, including the Solicitor General, former Register of Copyrights Ralph Oman, The Authors Guild, Graphic Artists Guild, Songwriters Guild of America, and the National Society of Entertainment & Arts Lawyers. Oral arguments for the case are set for February 21.

Thaler Files Appellate Brief in AI Copyright Authorship Case: On January 22, Dr. Stephen Thaler filed a brief with the Court of Appeals for the District of Columbia appealing a decision by the district court for the District of Columbia, which ruled that the U.S. Copyright Office rightfully rejected Thaler’s bid to register an image wholly generated by his AI machine, The Creativity Machine, because the image lacked human authorship. The brief argues that the express language of the Copyright Act does not require “human” authorship and that this is reinforced in the Act’s recognition and mechanics of the work-made-for-hire doctrine.

Court Partially Rules on Motions to Dismiss Claims in Software AI Class Action Lawsuit: On January 22, in Doe v. Github, the court granted and denied in part Microsoft and OpenAI’s renewed motions to dismiss claims brought by a group of anonymous software coders alleging that Microsoft and OpenAI were liable for violating open source licenses and scraping plaintiffs’ code to train Microsoft’s AI tool, GitHub Copilot. District Judge Tigar of the district court for the Northern District of California declined to dismiss plaintiffs’ claims for damages for Does 1, 2, and 5, but dismissed the claims for damages made by Does 3 and 4 with prejudice because they did not sufficiently demonstrate injury because they failed to allege instances where their code had been output by Copilot. However, the court ruled that all parties had standing to pursue their claims for injunctive relief. The court also dismissed the state claims with prejudice and the Section 1202(b)(1) and (b)(3) claims under the DMCA made by the plaintiffs but granted leave for the plaintiffs to amend relevant defects in the complaint with regard to the dismissed DMCA claims.

Authors File New Class Action Lawsuit Against Microsoft and OpenAI: On January 5, two nonfiction book authors and journalists, Nicholas Basbanes and Nicholas Gage, filed a class action lawsuit against Microsoft and OpenAI over the unauthorized use and reproduction of the plaintiffs’ books to train the ChatGPT AI model. The plaintiffs allege that the defendants are liable for direct, vicarious, and contributory copyright infringement.

Meta Files a Response to AI Class Action Lawsuit Brought by Authors: On January 10, Meta filed its response to the class-action lawsuit brought against it by a group of authors, including Richard Kadrey and Sarah Silverman, for the use of Plaintiffs’ books to train Meta’s AI model, Llama. In its response, Meta admits that portions of the Books3 dataset were used to train the first and second versions of Llama. For its affirmative defense, Meta argues that fair use excuses their infringement of any copyrighted works. It also asserts that it may use public domain works, unregistered works, abandoned works, and works otherwise unprotectable under copyright law.

Anthropic Moves to Dismiss Music Publishers’ Lawsuit: On January 16, AI company, Anthropic, filed an opposition to a preliminary injunction request made by a group of music publishers, who had sued the AI company for the unauthorized use of plaintiffs’ musical works to train the AI model, Claude. The plaintiffs had requested a preliminary injunction to prohibit Claude from generating output of plaintiffs’ works and require extraction of the plaintiffs’ musical works from the training datasets for unreleased models. Anthropic argues that it is inappropriate for the court to grant plaintiffs’ preliminary injunction because the plaintiffs cannot show irreparable harm from Claude’s output or training on the musical works due to the safeguards built into the AI model and because Anthropic did not itself create the infringing output copies that were included in the complaint. Anthropic further accuses plaintiffs of strategically manipulating Claude by bypassing guardrails to produce the infringing output examples included in the complaint. Anthropic also argues that plaintiffs cannot show a likelihood of succeeding on the merits of the infringement claims since its use is excused under the fair use exception.

Copyright in Other Countries

Italian Court Rejects ISP Challenge to Dynamic Website-Blocking Measures: On January 22, the Regional Administrative Court for Lazio in Italy rejected a bid by the Association of Independent Providers, a group of small to medium-sized Italian Internet Service Providers (ISPs), ruling that the country’s dynamic website blocking measures as implemented by the country’s telecom regulator, AGCOM, are permissible as the system was implemented to further the public’s interest in protecting copyright. Mainly targeting live broadcast events including sporting events, Italy’s dynamic website blocking measures use a system called “The Piracy Shield,” where rightsholders upload information about illicit websites and evidence of infringing activities. The information is provided to ISPs who are directed to block relevant IP addresses within 30 minutes. The new system is expected to go into effect in February.

UK Government Confirms It Is No Longer Considering Broad Copyright Exemption for TDM: On January 9, the UK Committee on Culture, Media, and Sport of the House of Commons issued its report on Connected Tech: AI and Creative Technology: Government Response to the Committee’s Eleventh Report of Session 2022–23, which confirms that the UK government will not move forward with its proposal for a broad copyright exemption for text-and-data mining. The report makes intellectual property recommendations including how the government can examine ways to increase transparency over AI use of creative works and to prevent unauthorized use of creators’ likeness and performances in emerging technologies like AI. The report notes that the government is instead engaging stakeholders in a working group to develop a code of practice on copyright and AI to be shared in early 2024.

UK Opens Consultations on Performance Rights for Sound Recordings in Foreign Nations: On January 15, the United Kingdom’s Intellectual Property Office launched consultations to examine reciprocity of sound recording public performance rights and the country’s treatment of recordings and performances from such countries in light of its international treaty obligations.

EU Parliament Adopts Resolution to Address Various Music Streaming Royalties and Issues: On January 17, members of the European Parliament voted to adopt a resolution to address the issue of allocation of streaming royalties for musicians, promotion of EU musical works on streaming platforms, and transparency of streaming platform algorithms and AI generated music.

Industry Activities

New Nonprofit Launches to ‘Certify Copyright-Friendly AI Practices’: On January 17, a non-profit called Fairly Trained was launched to “certify generative AI companies for training data practices that impact creators’ rights.” Per the announcement, Fairly Trained, which is led by CEO Ed Newton-Rex, “has assembled an advisory committee that brings together voices from a range of disciplines to help ensure that they develop certifications in a manner that takes into account a diverse set of viewpoints.” The advisory committee is comprised of Maria Pallante, President & CEO, Association of American Publishers (AAP); Tom Gruber, Co-founder and CTO of Siri and LifeScore; Elizabeth Moody, Senior Partner, Chair of New Media at Granderson Des Rochers; and Max Richter, composer, pianist, and producer. At the time of launch, nine AI companies—Beatoven.AI, Boomy, BRIA AI, Endel, LifeScore, Rightsify, Somms.ai, Soundful, and Tuney—have been certified by the organization for a range of creation types, such as image, music, and singing voice generation.

Look Forward To And Save the Date For…

HJC IP Subcommittee Holds AI Field Hearing in LA: On February 2 at 9 a.m. PT at the Los Angeles Convention Center, the House Judiciary Committee’s (HJC) Subcommittee on Courts, Intellectual Property, and the Internet will host its field hearing, titled Artificial Intelligence and Intellectual Property: Part II – Identity in the Age of AI. Witnesses include Lainey Wilson, 2024 Grammy Nominee, 2023 CMA Entertainer of the Year, and 2023 ACM Female Artist of the Year; Harvey Mason Jr., President and CEO, the Recording Academy; Christopher Mohr, President, Software and Information Industry Association (SIIA); and Jennifer Rothman, Nicholas F. Gallicchio Professor of Law, University of Pennsylvania Law School.

Next CPMC Meeting: On February 15 at 1 p.m. ET, the Library of Congress will virtually host its sixth bi-annual meeting of the Copyright Public Modernization Committee (CPMC). During the meeting, Library and Copyright Office staff intend to provide updates on the development of the Enterprise Copyright System and a live demonstration of the Library’s system for onsite access to rights-restricted content. The meeting will also feature discussions among the members of the CPMC of their reflections over the past three years since establishment of the committee and discussions regarding a renewed authorization of the committee. The event is open to the public and there will be an opportunity for public questions and answers. More information is available on the registration page.

Deadline to Submit Comments to USCO in Opposition of New Exemptions in 1201 Triennial Rulemaking: On February 20 comments are due to the U.S. Copyright Office in opposition of the new exemptions in 1201 Triennial Rulemaking.  The U.S. Copyright Office’s notice outlines seven newly proposed classes of exemption and initiates three rounds of public comment. Reply comments from supporters of a proposed exemption and parties who neither support nor oppose an exemption are due March 19, 2024.

Deadline to Submit Comments to USCO on NPRM for New Group Registration Option for News Websites: On February 20, 2024, comments are due to the U.S. Copyright Office in response to the published notice of proposed rulemaking (NPRM) setting forth regulations to create a new group registration option to register updates to news websites. The proposed rule would permit news publishers to register groups of updates to news websites published within the same calendar month as a collective work and for a fee of $95.

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In November, Artificial Intelligence (AI) dominated the courts as new class action lawsuits were filed, and there were several developments in existing cases involving OpenAI and other well-known AI companies. Here is a quick snapshot of those and other 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: We published several new blogs during the month of November.

• Copyright Alliance CEO, Keith Kupferschmid, wrote a blog post for Thanksgiving 2023, of what and whom he was most grateful for amidst all the copyright issues this year.
• We published a three-part series on copyright cases visual artists should know. Part one discusses copyrightability, part two is on authorship, and part three is on infringement and fair use.

Copyright Office Activities

CCB Status Update: At the end of November 2023, 671 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 270 are “smaller claims.” In at least 194 of all cases, the claimant is using legal counsel. At least 605 of the cases involve infringement claims, 115 involve Section 512(f) misrepresentation claims, and 21 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 (301 cases); Literary Works (103); Motion Picture and Audiovisual Works (125); Sound Recordings (71); Musical Works (48); and some cases include claims for multiple works. Ninety-three foreign residents have filed claims. Of all the cases filed, 481 have been dismissed for the following reasons: Due to Respondent’s Opt-Out (59); Due to Failure to Amend Noncompliant Claim (240); Registration Issues (11); Due to Failure to Provide Proof of Service of Process (91); Claimant Withdrawal and Dismissal of Claims (45); Bad Faith Claimant (6); and Settlement (29). There are 48 active proceedings and 12 final determinations.

CCB Issues Three New Final Determinations: On November 1, the CCB issued a final determination in the case of Julie Dermansky v. Rule 62, Inc. and a final determination in the case of Urbanlip.com, Ltd. v. Faviana International, Inc. In both cases, the CCB adopted a proposed default determination, and awarded damages of $1,350 and $2,600 respectively. On November 20, the CCB issued a final determination in the case of Benjamin Bronner v. EssayZoo, also adopting a proposed default determination. The tribunal awarded $1,200 in statutory damages in that proceeding.

USCO Extends Deadline to Submit Reply Comments for SNPRM on Termination Rights Under the MMA: On November 16, the Copyright Office extended the deadline to submit reply comments in response to its supplemental notice of proposed rulemaking regarding its draft regulations governing the processes and procedures surrounding the termination of rights and royalties related to the statutory mechanical blanket license administered by the Mechanical Licensing Collective (MLC) under the Music Modernization Act (MMA). Comments are now due today, December 5.

Congressional Copyright Activity

House Passes Legislative Branch Funding Bill: On November 1, the House of Representatives passed bill H.R. 4364 to fund the legislative branch for fiscal year 2024, which reportedly reflects “modest” increases to certain agencies including the Congressional Budget Office, Library of Congress, and Government Accountability Office. The bill allocates $101,011,000 to the U.S. Copyright Office, of which not less than $10.3 million is allocated for Office modernization initiatives.  On November 14, 2023, Congress officially passed an additional continuing resolution to extend funding for federal agencies covered by four appropriations bills until January 19, 2024, and until February 2, 2024, for the remaining eight spending bills (which includes Commerce-Justice-Science and Legislative Branch bills).

Senator Schumer Holds AI Insight Forum on Copyright: On November 29, Senator Chuck Schumer (D-NY) held the seventh closed-door AI meeting in the Insight Forum series. The meeting focused on transparency, explainability, and intellectual property and copyright issues. Speakers included Ali Farhadi, Allen Institute for AI; Ben Brooks, Stability AI; Curtis LeGyt, National Association of Broadcasters (NAB); Danielle Coffey, News/Media Alliance; Jon Schleuss, News Guild; Vanessa Holtgrewe, IATSE; Duncan Crabtree-Ireland, SAG-AFTRA; Ben Sheffner, Motion Picture Association (MPA); Dennis Kooker; Sony Music Entertainment; Rick Beato, musician; and Ziad Sultan, Spotify. The speakers generally agreed that no legislative changes were necessary at this time because the issues were being played out in the courts. 

Copyright in the Courts

Court Grants Meta’s Motion to Dismiss in Silverman AI Lawsuit: On November 20, Judge Vince Chhabria of the district court for the Northern District of California granted Meta’s motion to dismiss (with leave to amend) in the case brought against it by Richard Kadrey (and other authors) for the unauthorized use of plaintiffs’ books to train Meta’s LLaMA large language model. The order rejects plaintiffs’ claims that the LLaMa model itself is an infringing derivative work and that every output of the model qualifies as an infringing derivative of the input. The court states that “plaintiffs are wrong to say that, because their books were duplicated in full as part of the LLaMA training process, they do not need to allege any similarity between LLaMA outputs and their books to maintain a claim based on derivative infringement.” Rejecting the 1201 violation claims, the court says that “there are no facts to support the allegation that LLaMA ever distributed the plaintiffs’ books, much less did so ‘without their CMI.’” The order also dismisses the unjust enrichment and negligence claims as preempted. Plaintiffs’ amended complaint is due December 11. Importantly, the claims relating to ingestion of the copyrighted works for training purposes were not dismissed by the court because they were not included in defendant’s motion and therefore were not considered by the court at this stage.  

New Class Action Filed By Writers Against OpenAI and Microsoft: On November 21, a new complaint was filed by a group of nonfiction writers against OpenAI and Microsoft in the Southern District of New York. The proposed class action lawsuit, led by Julian Sancton, accuses the companies of direct and contributory infringement related to the unauthorized use of plaintiffs’ literary works to train ChatGPT. Notably, the contributory infringement claims are directed at Microsoft for materially contributing to OpenAI’s direct infringement by providing investment money and supercomputing systems.

Anthropic Files Motion to Dismiss Music Publishers’ AI Lawsuit for Lack of Personal Jurisdiction: On November 22, AI company, Anthropic, filed a motion to dismiss a copyright infringement lawsuit over the ingestion of musical works for AI training brought by a group of music publishers, including Universal Music. Anthropic argues that the Middle District of Tennessee was not the proper district to hear the case. and that as a California-based company, its contacts with Tennessee and plaintiffs’ claims arising from those contacts are legally insufficient for the court to have jurisdiction over Anthropic. In the alternative, Anthropic argues that the venue should be at least transferred to the Northern District of California, where a number of other AI and copyright lawsuits are being heard.

Plaintiffs in Visual Artists Class Action Lawsuit File Amended Complaint Adding Several New Plaintiffs: On November 29, an amended complaint was filed in the Anderson class-action visual artists lawsuit against Stability AI, DeviantArt, Midjourney, and Runway AI, adding several new plaintiffs, including Hawke Southworth, Greg Rutkowski, Gregory Manchess, Gerald Brom, Jingna Zhang, Julia Kaye, and Adam Ellis. The amended complaint further details the copyright implications in a diffusion-style training process, the inclusion of named plaintiffs’ works in the LAION-5B dataset, and provides exhibits of examples where AI-generated outputs similar to plaintiffs’ ingested works had been produced upon using a plaintiff’s name as a prompt. The plaintiffs make direct copyright infringement claims, alleging that Stable Diffusion copied plaintiffs’ works during the AI training process, and also allege that Stable Diffusion is liable for inducement of copyright infringement.

Biden Administration Activities

OMB Releases New Draft AI Guidance for Federal Government: On November 1, the Office of Management and Budget (OMB) released a draft memorandum providing guidance on federal government uses of AI. The memorandum acknowledges that AI could impact intellectual property and among other things, directs federal departments and agencies to designate Chief AI Officers and to ensure that procured AI complies with applicable laws, including those addressing privacy confidentiality, copyright, and civil rights and liberties.

Copyright in Other Countries

Chinese Court Holds That AI-Generated Image Is Protected by Copyright: Chinese court held that an AI-generated image was protected by copyright since the plaintiff made intellectual investments and conceptions such as selecting and arranging prompts, selecting the input images, setting relevant parameters, and other choices that led to the final image.

USPTO Releases Updated China IP Rights Toolkit: On November 30, the U.S. Patent and Trademark Office (USPTO) released a revised edition of the China Intellectual Property Rights (IPR) Toolkit, which describes recent changes made to China’s IP-related laws and government structures. The toolkit provides an in-depth look and explanation of the basics of Chinese IP laws to help rights holders who do business in China. 

Industry Activities

MLC Announces Distribution of More Than $1.5 Billion in Royalties: The Mechanical Licensing Collective (MLC) announced that it has now distributed more than $1.5 billion in mechanical royalties to publishers and songwriters, which is up from more than $800 million at this time last year.

Prominent AI Developer Ed Newton-Rex Departs Stability AI Due to its Disrespect for Copyright: According to recent announcements, Ed Newton-Rex—a widely known AI developer who founded Jukedeck a decade ago before becoming the Product Director of TikTok’s AI Lab and ultimately leading the development of Stable Audio—is leaving Stability AI over his “personal respect for copyright clash[ing] with that of his employer in recent weeks, after Stability AI argued in favor of the ‘fair use’ of copyrighted material to fuel generative AI within a submission to the U.S. Copyright Office.” In what’s been described as a “public resignation letter” published in Music Business Worldwide, Newton-Rex—who is also a music composer—states, “I’ve resigned from my role leading the Audio team at Stability AI, because I don’t agree with the company’s opinion that training generative AI models on copyrighted works is fair use.” Newton-Rex also noted that, “Companies worth billions of dollars are, without permission, training generative AI models on creators’ works, which are then being used to create new content that in many cases can compete with the original works. I don’t see how this can be acceptable in a society that has set up the economics of the creative arts such that creators rely on copyright.”

Look Forward to And Save the Date For…

Extended Deadline to Submit Reply Comments to the USCO for AI Study: Reply comments are now due tomorrow, December 6,for the Copyright Office’s Artificial Intelligence and Copyright study. Input will be used by the Office to help it assess whether legislative or regulatory steps are warranted and to provide information on issues involving the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs. Instructions for submitting comments are available on the Office’s website.

IBPA Update on Copyright Claims Board: On December 13 at 1:00 p.m. ET, the Independent Book Publishers Association (IBPA) is hosting An Update on the Copyright Claims Board discussing how the CCB is progressing in terms of providing an affordable and streamlined alternative to federal court for certain small copyright claims. The event speaker is Copyright Alliance CEO Keith Kupferschmid.

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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!

In October, Artificial Intelligence (AI) continues to dominate copyright law headlines as the U.S. Copyright Office received initial comments for its AI study, the White House issued an Executive Order that implicates copyright and AI, and a federal court finally took action in one of the dozen AI class-action lawsuits. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of October as well as a few events to look forward to in November.

Copyright Alliance Activities

Copyright Alliance Submits Comments to USCO for AI and Copyright Study: The Copyright Alliance submitted comments to the U.S. Copyright Office for its AI and copyright study. The comments address a range of issues at the intersection of copyright and generative artificial intelligence, especially highlighting concerns surrounding infringement related to the unauthorized use of copyrighted works for training.

Copyright Alliance Submits Comments to USCO on Access to Electronic Deposits NPRM: On October 2, the Copyright Alliance and five others submitted comments to the Copyright Office in response to the proposed rule to expand the categories of the types of electronic deposits the Library of Congress can provide access to. The Copyright Alliance submitted comments pointing out that the rulemaking is premature and that further examinations of, critical updates to, and consultations on the registration and deposit systems and the Library’s security systems, programs, and practices are necessary before a rule can become effective. On October 30, the Office received nine reply comments for this rulemaking.

Copyright Office Activities

CCB Status Update: At the end of October 2023, 631 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 249 are “smaller claims.” In at least 188 of all cases, the claimant is using legal counsel. At least 570 of the cases involve infringement claims, 107 involve Section 512(f) misrepresentation claims, and 20 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 (284 cases); Literary Works (97); Motion Picture and Audiovisual Works (119); Sound Recordings (70); Musical Works (39); and some cases include claims for multiple works. Ninety foreign residents have filed claims. Of all the cases filed, 460 have been dismissed for the following reasons: Due to Respondent’s Opt Out (58); Due to Failure to Amend Noncompliant Claim (231); Registration Issues (11); Due to Failure to Provide Proof of Service of Process (87); Claimant Withdrawal and Dismissal of Claims (42); Bad Faith Claimant (6); and Settlement (25). There are 47 active proceedings and nine final determinations.

USCO Receives Over 10,000 Comments for AI and Copyright NOI: The U.S. Copyright Office received over 10,000 comments in response to its notice of inquiry soliciting public comments on AI and copyright issues for the Office’s AI study. Comments were still being posted as this blog post was published. Groups submitting comments included the American Society of Media Photographers and North American Nature Photography Association; Authors Guild; A2IM and RIAA; Department for Professional Employees, AFL-CIO (including Directors Guild of America, International Alliance of Theatrical Stage Employees, SAG-AFTRA, and Writers Guild of America, East; News/Media Alliance; and Motion Picture Association. 

USCO to Renew Most Existing 1201 Exemptions; Solicits Comments on Proposed New or Expanded Exemptions: On October 19, the Copyright Office published a notice of proposed rulemaking, proposing to renew all but one of the existing exemptions to the Digital Millennium Copyright Act’s (DMCA) prohibition against anti-circumvention of technological measures protecting copyrighted works. The Office noted that since no renewal petition was received for the current exemption permitting circumvention of video games in the form of computer programs for the purpose of allowing an individual with a physical disability to use alternative software or hardware input methods, the Office will not recommend this exemption to the Librarian of Congress for approval. Proposed new or expanded exemptions include expansion to the TDM of literary and audiovisual works in the scholarly/research contexts and a new proposed exemption for computer programs for generative AI research. The Office will hold three rounds of public comments on new or expanded exemptions in addition to virtual public hearings, which will be held in spring 2024.

Congressional Copyright Activity

HJC IP Subcommittee Holds Hearing on China IP Issues: On October 19, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled Intellectual Property and Strategic Competition with China: Part III – IP Theft, Cybersecurity, and AI. The hearing examined current capabilities and risks in the arms race between the U.S. and the People’s Republic of China in the development of artificial intelligence (AI). The hearing also focused on the cybersecurity implications of AI and its potential impacts on protecting US intellectual property and technical resources, including data. Witnesses addressed issues related to China’s use of AI, the protection of intellectual property rights, data collection and AI training, the potential risks of AI-generated content, and the balance between responsible regulation and innovation. The hearing highlighted the urgent need for comprehensive approaches to AI governance, cybersecurity measures, and the preservation of American values while addressing the growing challenges posed by China in a dynamic technological landscape.

SJC IP Subcommittee Holds Hearing on SHOP SAFE Act: On October 3, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing titled, Back to School with the SHOP SAFE Act: Protecting Our Families from Unsafe Online Counterfeits regarding the SHOP SAFE Act (S. 2934). Witnesses included Matthew Schruers, President, Computer & Communications Industry Association (CCIA); Stephen Lamar, President & CEO, American Apparel & Footwear Association (AAFA); Daniel Shapiro, Senior Vice President, Brand Relationship and Strategic Partnerships, Red Points; and Kari Kammel, Director and Senior Academic Specialist, Center for Anti-Counterfeiting and Product Protection. In his opening statement, Chairman Chris Coons (D-DE) highlighted the rapid expansion of online shopping and emphasized the critical importance of addressing the issue of counterfeit goods online while promoting responsible and innovative business practices and the concurrent increase in online counterfeiting. 

Copyright in the Courts

Court Grants Stability AI’s Motion to Dismiss Visual Artists’ Class-Action Lawsuit: On October 30, the district court for the Northern District of California largely granted the motions to dismiss the class-action lawsuit filed by a group of visual artists against Stability AI, DeviantArt, and Midjourney. Though the court largely dismissed the claims, plaintiffs were provided with leave to amend the claims. The court dismissed the claims made by McKernan and Ortiz, in light of the fact that their works were not timely registered with the U.S. Copyright Office. Though the headlines about this case may frame this decision as a loss for the creative community, that is not the case, because importantly, the court denied Stability’s motion to dismiss the plaintiffs’ direct copyright infringement claims with respect to their images scraped/ingested into the LAION training datasets used to train Stable Diffusion, and also held that plaintiffs’ assertions that their works had likely been used in the LAION datasets as per results from the “haveibeentrained” website adequately supported her infringement claims at this stage of the lawsuit.

Authors File Class Action AI-Related Lawsuit Against Meta and Bloomberg: On October 17, a group of authors including former Arkansas governor, Mike Huckabee, and best-selling Christian author, Lysa TerKeurst, filed a class-action lawsuit in the district court for the Southern District of New York against Meta, Microsoft, EleutherAI, and Bloomberg for direct and vicarious copyright infringement, removal of copyright management information, and various other state-law claims. The plaintiffs allege that the defendants infringed by using plaintiffs’ books to develop defendants’ large language AI models (LLMs) using the “Books 3” training dataset. The lawsuit also asserts that AI research company, EleutherAI, is liable for copyright infringement for hosting and distributing “The Pile” dataset, which includes Books3. 

Music Publishers Sue AI Company, Anthropic: On October 18, music publishers Universal Music Publishing Group, Concord Music Group, and ABKCO, filed a lawsuit in the district court for the Middle District of Tennessee against the AI company, Anthropic, alleging direct, contributory, and vicarious copyright infringement as well as copyright management information removal claims. The plaintiffs allege that Anthropic unlawfully copied and distributed plaintiffs’ musical works, including lyrics, to develop Anthropic’s generative AI chatbot, Claude. The plaintiffs state that when prompted, Claude generates output that copies the publishers’ lyrics. The plaintiffs’ complaint claims that 500 works have been infringed and requests statutory damages of $75 million for copyright infringement.

Biden Administration Activities

President Biden Issues AI Executive Order: On October 30, President Biden signed the long-awaited Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (EO). The EO covers a number of topics. A Fact Sheet that describes the EO is available. Section 5.2 of the EO titled “Promoting Innovation”, paragraph (c)(iii) addresses copyright. It says: “within 270 days of the date of this order or 180 days after the United States Copyright Office of the Library of Congress publishes its forthcoming AI study that will address copyright issues raised by AI, whichever comes later, consult with the Director of the United States Copyright Office and issue recommendations to the President on potential executive actions relating to copyright and AI. The recommendations shall address any copyright and related issues discussed in the United States Copyright Office’s study, including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training.”

The EO also directs the Secretary of Homeland Security, acting through the head of the National Intellectual Property Rights Coordination Center, and in consultation with the Attorney General to develop a training, analysis, and evaluation program to mitigate AI-related IP risks. Such a program shall: (i) include appropriate personnel dedicated to collecting and analyzing reports of AI-related IP theft, investigating such incidents with implications for national security, and, where appropriate and consistent with applicable law, pursuing related enforcement actions; (ii) implement a policy of sharing information and coordinating on such work, as appropriate and consistent with applicable law, with the Federal Bureau of Investigation; Customs and Border Protection; other Federal agencies; State, and local agencies; and appropriate international organizations, including through work-sharing agreements; (iii) develop guidance and other appropriate resources to assist private-sector actors with mitigating the risks of AI-related IP theft; (iv) share information and best practices with AI developers and law enforcement personnel to identify incidents, inform stakeholders of current legal requirements, and evaluate AI systems for IP law violations, as well as develop mitigation strategies and resources; and (v) assist the Intellectual Property Enforcement Coordinator in updating the Intellectual Property Enforcement Coordinator Joint Strategic Plan on Intellectual Property Enforcement to address AI-related issues.”

OMB Release New Draft AI Guidance for Federal Government: On November 1, the Office of Management and Budget (OMB) released a memorandum providing guidance on federal government uses of AI. The memorandum acknowledges that AI could impact intellectual property and among other things, directs federal departments and agencies to designate Chief AI Officers and to ensure that procured AI complies with applicable laws, including those addressing privacy confidentiality, copyright, and civil rights and liberties. A summary is available on the White House’s website.

USPTO Holds Roundtable on ‘Future Strategies in Anti-Counterfeiting and Anti-Piracy’: On October 3, the U.S. Patent and Trademark Office (USPTO) held a roundtable on Future Strategies in Anti-counterfeiting and Anti-piracy. The event discussion highlighted the challenges of addressing copyright claims in countries with less stringent legislation and enforcement and the limitations of relying solely on technology to manage piracy and copyright issues. Kevin Madigan, VP of Legal Policy at the Copyright Alliance, participated in the roundtable. Panelists discussed the potential of the Office to bring parties together to explore cooperative possibilities and the importance of trust in the customer-brand relationship. The panelists also discussed the challenges of obtaining injunctive relief in online piracy cases and the outdated nature of the DMCA, which lacks clear definitions and recognized standards for identifying and protecting copyrighted works online. Further, participants emphasized the importance of ensuring that copyright does not become a mere tool in industrial policy and the need to maintain a balanced viewpoint that doesn’t allow copyright to be undermined by industrial policy. 

Copyright in Other Countries

G7 Issues Final AI Principles/Codes Acknowledging Copyright Protections: On October 30, the G7 released the Hiroshima AI Guiding Principles and AI Code of Conduct which include references in Principle 11 addressing the need for implementation of protections for intellectual property and transparency of training datasets.

UK Parliament Warns of Piracy Threat from NFTs: On October 11, the UK Parliament’s Culture, Media, and Sport Committee issued a report and statement warning that “the emergence of non-fungible tokens (NFTs) in the world of art has led to the risk of widespread copyright infringement” and that “the promotion of crypto assets in professional sport is putting supporters at risk of financial harm and potentially damaging the reputations of clubs.” In its recommendations, the Committee urges the UK government to protect creators from NFT-related copyright infringement by working with NFT marketplaces to develop a code of conduct that would protect creators, consumers, and sellers from infringing and potentially fraudulent material sold on NFT platforms.

French Court Awards €489 Million in Damages for Rightsholders; Sentences Pirate Website Operators Up to Three Years of Prison: A French criminal court in Rennes sentenced two operators of notorious illicit torrent site, T411, to 18-month and three-year prison sentences and is holding the operators responsible for approximately €300,000 in total. The court also awarded rightsholders €489 million in damages for the over 190,000 torrents and 270 million downloads of movies and music that authorities were able to trace.

Submissions to Notorious Markets List to USTR: The Entertainment Software Association (ESA), RIAA, Motion Picture Association (MPA), and the Association of American Publishers (AAP) each submitted a non-exhaustive list to the Office of U.S. Trade Representative (USTR) for inclusion in the USTR’s upcoming 2023 Notorious Market list.

Brazilian Authorities Shut Down Music Piracy Website: On October 25, the International Federation of the Phonographic Industry (IFPI) announced that in coordination with Brazilian authorities, they had shut down a prominent illegal file sharing website, FileWarez.tv. The website had more than 118,000 registered users with at least 24,000 monthly active users who mostly engaged in sharing illegal copies of music files.

Industry Activities

News/Media Alliance Publishes AI White Paper: On October 30, the News/Media Alliance (N/MA) published a white paper titled How the Pervasive Copying of Expressive Works to Train And Fuel Generative Artificial Intelligence Systems Is Copyright Infringement and Not a Fair Use, focusing on the impact and copyright law issues of generative AI on publishers’ works. The White Paper and Technical Analysis made several findings including how generative AI copying of protected works is not fair use, how developers have copied and used news media content to train large language models, and how vital news media content has been in the training and development of commercial AI products, including Google’s Bard. More information is available on N/MA’s website.

Look Forward to And Save the Date For…

2023 Christopher A. Meyer Memorial Lecture: On November 2 from 6:00 p.m. to 8 p.m. ET, The Law Office of Michael R. Klipper, the George Washington University Law School, and the Copyright Society will again sponsor the Christopher A. Meyer Memorial Lecture. Justin Hughes, who is the Honorable William Matthew Byrne Professor of Law at Loyola University Law School, and visiting Professor at Oxford University, will deliver a lecture titled Intellectual Property and the Creatures of Generative AI. 

Extended Deadline to Submit Comments to USCO on MMA Royalty Distribution Issues in New Supplemental NPRM: Comments are now due on November 8, and reply comments are due November 28, in response to the U.S. Copyright Office’s supplemental notice of proposed rulemaking (SNPRM). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right (“Exception”) in the context of various royalties administered by the MLC. 

WALA, NAVA, and GMU Arts and Entertainment Advocacy Clinic Seminar on ‘AI and Copyright’: On November 14 from 2 p.m. to 3:30 p.m. ET, the National Association of Voice Actors (NAVA), Washington Area Lawyers for the Arts (WALA), and the George Mason University (GMU) Arts and Entertainment Advocacy Clinic will host a bi-annual seminar on trending legal issues, titled Artificial Intelligence and Copyright. In particular, the event hosts will discuss how AI is infringing on artists’ rights and the methods artists can use to protect themselves. Event speakers will also share examples from the voice artist field to illustrate how easily AI can mimic someone’s voice. If you have a specific question, please email it in advance to legalservices@waladc.org or use the questions section on the Eventbrite registration page.

Columbia University Symposium on Accountability and Liability in Generative AI: On November 17 from 10 a.m. to 5 p.m. ET, the Columbia University Science, Technology & Intellectual Property Law Program and Science and Technology Law Review are sponsoring a symposium titled Accountability and Liability in Generative AI: Challenges and Perspectives. The featured authors and commentators are Mark Lemley, Stanford University Law School; Paul Ohm, Georgetown University Law Center; Catherine Sharkey, New York University School of Law; Alicia Solow-Niederman, George Washington University Law School; Alice Xiang, Global Head of AI Ethics, Sony; Christopher Yoo, University of Pennsylvania Carey Law School; Shyamkrishna Balganesh, Talia Gillis, Thomas Merrill, and Eric Talley, Columbia University Law School; Matthew Sag, Emory University School of Law; and Tim Wu, Columbia University Law School. This event takes place at the Columbia Law School, located at 435 West 116th Street, New York, NY.

USCO Deadline for Submitting Reply Comments on AI Study: Written comments are due November 29 in response to the Copyright Office’s notice of inquiry of various questions related to artificial intelligence and copyright to inform the Office’s ongoing study of AI issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs. 

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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!

In September, Artificial Intelligence (AI) continued to be a hot topic in the courts and at the U.S. Copyright Office. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of September as well as a few events to look forward to in October.

Copyright Alliance Activities

Copyright Alliance Relaunches CAB with the Appointment of New Members: On September 12, the Copyright Alliance announced the relaunch of its Creators Advisory Board (CAB) with the appointment of the following board members: Yanique DaCosta; Jayda Imanlihen; Lana Love; Blake Morgan; Jeff Sedlik; T.J. Stiles; Taura Stinson; and Maimouna Youssef. CAB is a key Copyright Alliance board consisting of creators who are leaders in the creative community with a demonstrated track record of advocating for strong copyright protections.

Copyright Alliance and Community Partners Co-Host ‘AI and Copyright’ Webinar: On September 13, the Copyright Alliance co-hosted a virtual webinar with numerous Community Partners titled Artificial Intelligence and Copyright: The Next Frontier. The event, which garnered more than 460 attendees, explored the complex relationship between copyright and artificial intelligence (AI) and the legal and ethical implications surrounding copyright ownership, licensing, fair use, and other opportunities and challenges. Policy team members Kevin Madigan and Rachel Kim were the event speakers. The webinar was designed for all creators, copyright holders, and others who are interested in AI, as it provided insights into the ever-evolving landscape of AI and copyright. The event video is now available to the public on our AI and Copyright webpage.

Copyright Alliance Blogs: We published several new blogs during the month of September:

• Copyright Alliance CEO, Keith Kupferschmid, wrote a blog post in support of independent musicians in light of the re-introduction of the Protecting Working Musicians Act.
• We highlighted in this blog post NBA players’ creative careers on top of their already impressive athletic backgrounds.

Copyright Office Activities

CCB Status Update: At the end of September 2023, 600 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 235 are “smaller claims.” In at least 186 of all cases, the claimant is using legal counsel. At least 545 of the cases involve infringement claims, 100 involve Section 512(f) misrepresentation claims, and 18 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 (270 cases); Literary Works (90); Motion Picture and Audiovisual Works (113); Sound Recordings (68); Musical Works (37); and some cases include claims for multiple works. Eighty-four foreign residents have filed claims. Of all the cases filed, 434 have been dismissed for the following reasons: Due to Respondent’s Opt Out (55); Due to Failure to Amend Noncompliant Claim (217); Registration Issues (10); Due to Failure to Provide Proof of Service of Process (83); Claimant Withdrawal and Dismissal of Claims (41); Bad Faith Claimant (5); and Settlement (23). There are 43 active proceedings and eight final determinations.

USCO Rejects Registration of AI-Assisted Work: On September 5, the U.S. Copyright Office rejected a second request made by artist, Jason M. Allen for reconsideration for refusal to register a two-dimensional artwork titled Théâtre D’opéra Spatia, because the work contained more than a de minimis amount of AI-generated work which Allen refused to disclaim on the registration application. Specifically, the Office rejected Allen’s three claims to human authorship, stating: (1) the image, as generated by Midjourney, lacked human authorship because Allen’s sole contribution was to input text prompts into Midjourney; (2) the Office could not decide whether Allen contributed any human authorship to the image via adjustments made to the image via Adobe products because there was a lack of information; and (3) the use of Gigapixel AI to scale the image did not introduce new, original elements into the image and that these acts did not amount to authorship.

USCO Issues Rule on Fees for Late Royalty Payments Under the MMA: On September 5, the U.S. Copyright Office adopted the interpretive rule regarding fees for late royalty payments under the Music Modernization Act’s (MMA) statutory mechanical blanket license. In its interpretive rule, the Office declined to issue any regulations, instead finding that the statute is unambiguous as to “(i) due date provisions, (ii) direction to the Office to adopt regulations governing adjustments, and (iii) delegation of authority to the CRJs to promulgate late fee provisions.” Specifically, the Office concluded that “the plain and natural meaning of the statute is that ‘all royalties’ for a given monthly reporting period are ‘due’ no later than 45 days after the end of the monthly reporting period. Thus, any royalties received by the MLC for such reporting period after this ‘due date for payment’ are late.” The Copyright Alliance submitted comments on this issue back in May 2023.

USCO Issues NPRM Regarding Access to Electronic Deposits: On September 1, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) that would update its regulations governing access to electronic deposits of published works submitted to the Office that have been selected for addition to the collection of the Library of Congress by expanding the categories of eligible electronic deposits to all published copyrighted works.

USCO Extends Deadline for Submitting Comments for AI Study: On September 21, the U.S. Copyright Office published a notice in the Federal Register that extends the deadlines for the submission of comments for its ongoing Artificial Intelligence study. Written comments are now due October 30 and reply comments are due November 29. 

USCO Solicits Comments on MMA Royalty Distribution Issues in New Supplemental NPRM: On September 26, the U.S. Copyright Office published a supplemental notice of proposed rulemaking (SNPRM) to further clarify policies and procedures surrounding royalty distribution and dispute resolution practices for royalties administered by the Mechanical Licensing Collective (MLC). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right in the context of various royalties administered by the MLC. Comments are due October 26 and reply comments are due November 13. 

Biden Administration Activities

NAIAC Holds Briefing on AI and Copyright Law Issues: On September 29, the National Artificial Intelligence Advisory Committee (NAIAC) held a two-part briefing on various AI issues, including on AI and copyright law issues featuring a presentation by Aaron Cooper (BSA | The Software Alliance), Keith Kupferschmid (CEO, Copyright Alliance), and Catherine Stihler (Creative Commons). The presenters discussed infringement and fair use issues related to the ingestion of copyrighted works for AI training and the applicability of various cases, including the U.S. Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith on those issues. A recording will be made available on the NAIAC website.

Congressional Copyright Activity

HJC IP Subcommittee Holds USCO Oversight Hearing: On September 27, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled Oversight of the U.S. Copyright Office, examining the U.S. Copyright Office’s operations and the status of programs and reforms enacted in previous Congresses. Register of Copyrights and Director of the U.S. Copyright Office, Shira Perlmutter, was the sole witness. During the hearing, Register Perlmutter stated that the Office hopes to have a report on its current notice of inquiry (NOI) on artificial intelligence (AI) published in the first half of 2024 and that registration processing times are at a historic low of 2.1 months on average and just over one month for fully electronic claims.

House Administration Committee Holds USCO Modernization Roundtable: On September 26, the House Administration Committee held a public roundtable to discuss the U.S. Copyright Office’s processes and policies, the current advancements in copyright modernization, and avenues for further improvement. The roundtable was hosted by Chairman Representative Bryan Steil (R-WI) and Ranking Member Representative Joe Morelle (D-NY) who posed questions to members of the Copyright Public Modernization Committee (CPMC), which included Copyright Alliance CEO, Keith Kupferschmid. Topics discussed during the roundtable included the positives of the CPMC, transformations in the digital landscape, copyright accessibility, the need for industry-specific measures, the need for increased funding for the U.S. Copyright Office and the Library of Congress, the low percentage of creators who register their works, and the recent Valancourt v. Garland decision.

SJC Moves Forward on Deborah Robinson IPEC Nomination: On September 28, the Senate Judiciary Committee (SJC) moved forward on Deborah Robinson becoming the next Intellectual Property Enforcement Coordinator (IPEC) with a vote of 13-8. The Copyright Alliance initiated a statement by CEO Keith Kupferschmid noting full support of Deborah Robinson as the next IPEC and thanking the SJC for its support.

SJC Holds Hearing on AI Oversight: On September 12, the Senate Judiciary Committee (SJC) Subcommittee on Privacy, Technology, and the Law held a hearing titled, Oversight of A.I.: Legislating on Artificial Intelligence. Witnesses included Woodrow Hartzog, Professor of Law, Boston University School of Law; William Dally, Chief Scientist and Senior Vice President of Research, NVIDIA Corporation; and Brad Smith, Vice Chair and President of Microsoft Corporation. Overall, the hearing was bipartisan and led to deep discussions on how AI regulation should be looked at going forward. During her second round of questions Senator Klobuchar asked about NVIDIA’s partnership with Getty Images. Mr. Dally replied by saying, “We believe in respecting people’s intellectual property rights. We did not want to infringe on the rights of the photographers that took the images that our models had been trained on. We did not just scrap a bunch of images off the web to train our model, we partnered with Getty. When people use our model, Picasso, to generate images, [those] who provided the original content get renumerated. We see this as a way of going forward in general where people who are providing the IP for the training of these models should benefit from the use of them and that IP.” A recording of the hearing is now available to the public.

Senate Commerce Holds Hearing on AI: On September 12, the Senate Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety & Data Security held a hearing titled The Need for Transparency in Artificial Intelligence. Witnesses included Victoria Espinel, CEO, BSA, The Software Alliance; Dr. Ramayya Krishnan, Dean of the Heinz College of Information Systems and Public Policy, Carnegie Mellon University; Sam Gregory, Executive Director of WITNESS; and Rob Strayer, Executive Vice President for Policy, Information Technology Industry Council. Senator Hickenlooper (D-CO) asked about existing rights for consumers to maintain ownership of their creations and any additional rights they might have. In response, Dr. Krishnan highlighted concerns regarding the use of data and content by AI models, particularly when it comes to compensating creators. He emphasized the importance of copyright protection and suggested that creators should have the right to seek advertising opportunities related to their content used by AI models. A recording of the hearing is now available to the public. 

Senator Schumer Holds Inaugural AI Roundtable: On September 13, Senator Chuck Schumer (D-NY) held an AI roundtable during which lawmakers, technology company CEOs—including Elon Musk, Bill Gates, Sundar Pichai, and Mark Zuckerberg—and leaders of entertainment, labor and civil rights groups— including Charlie Rivkin of the Motion Picture Association (MPA)—discussed issues surrounding AI technologies. Participants agreed that government regulation of AI was necessary. When discussing the potential threat of AI for job displacement, Meredith Stiehm of the Writers Guild of America West described the views of its members on strike seeking a new contract with Hollywood studios in part to address those fears.

PWMA Re-Introduced in House: On September 19, Representative Deborah Ross (R-NC) re-introduced the Protecting Working Musicians Act (PWMA) (H.R. 5576), which would allow independent performers and labels to negotiate collectively with music streaming services. The bill was originally introduced in October 2021 by former Representative Ted Deutch (D-FL). A new addition to the bill would extend the antitrust exemption for the purpose of negotiating generative AI licenses.

Copyright in the Courts

Internet Archive Files Appeal of Its Loss in Lawsuit With Publishers: On September 11, the Internet Archive filed an appeal to the Court of Appeals for the Second Circuit from the August 11, 2023 judgment and permanent injunction against it for its widespread copyright infringement from scanning and digital lending of books owned by a group of publishers. According to reports, the Association of American Publishers responded, stating that it plans to “vigorously litigate the appeal of this case.” 

Authors File Class Action AI Lawsuits Against Meta and OpenAI: On September 8, a group of authors, including Michael Chabon, filed a class action lawsuit against OpenAI in the district court for the Northern District of California, alleging that the company used the authors’ books in training ChatGPT. The complaint alleges that when prompted, ChatGPT provides extremely detailed summaries, examples, and descriptions of the authors’ works, and that the authors’ writing styles can be accurately imitated. The plaintiffs are suing for copyright infringement and removal of copyright management information, as well as state-related claims including unfair competition and negligence. On September 12, the same group of plaintiffs filed a similar lawsuit against Meta.

Court Holds that Noncommercial Dissemination of Standards Incorporated into Law is Fair Use: On September 12, the U.S. Court of Appeals for the District of Columbia issued an opinion in American Society for Testing and Materials (ASTM) v. Public.Resource.Org (PRO), finding the defendant’s noncommercial dissemination of safety standards, as incorporated by reference into law, constitutes fair use and thus cannot support liability for copyright infringement. The court held that the first three factors “strongly support” a holding that PRO’s posting of the standards qualifies as fair use, and that the posting of “what the law is, not what industry groups may regard as current best practices,” is a transformative purpose. The court did not find that the standards are not copyrightable (or that they lose copyright protection when they are incorporated by reference), but that the standards fall “at best, at the outer edge of copyright’s protective purposes.” On the fourth factor, the court found that “plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards” and that PRO’s dissemination serves a public benefit. Notwithstanding this analysis, the court found that the fourth factor “does not significantly tip the balance one way or the other.” Ultimately, the decision says that the district court reasonably exercised its discretion in declining to award injunctive relief. The Copyright Alliance had submitted an amicus brief in support of ASTM.

Authors Guild and Group of Authors Sue OpenAI: On September 19, Authors Guild and a group of authors—including David Baldacci, Mary Bly, John Grisham, George R.R. Martin, Jodi Picoult, and Roxana Robinson—filed a class action lawsuit against OpenAI in the district court for the Southern District of New York, alleging copyright infringement claims over the mass ingestion of literary works to train ChatGPT and for infringing outputs generated by the AI machine. The complaint cites examples of ChatGPT being prompted to generate detailed outlines of possible sequels to the plaintiffs’ works and accurate and detailed summaries of such works, including specific chapters of books.

Book Publishers Sue Libgen: On September 14, a group of publishers including Cengage, Macmillan, and Pearson filed a lawsuit against the operators of the shadow library, known as Library Genesis (“Libgen”), in the district court for the Southern District of New York. The plaintiffs allege the Libgen operators are liable for pirating and illegally distributing 200 of the plaintiffs’ textbooks in about 20,000 files to Libgen users for free. 

Copyright in Other Countries

EU IPO Releases Report on Online Copyright Piracy: The European Union’s Intellectual Property Office (EU IPO) released a report titled Online Copyright Infringement in the European Union: Films, Music, Publications, Software, and TV (2007-2022). The EU IPO reported that the downward trends in piracy of film, music, and TV content were increasing again due to the rise in piracy of TV content and publications. The report noted that 58% of piracy occurs via streaming and 32% via downloads.

Indian Court Grants Dynamic Site Blocking Order for Future Content: On September 9, the High Court of Delhi in New Delhi granted a dynamic website blocking order for a group of movie and television studios against notorious illicit pirate websites and their mirror websites to protect the plaintiff-studios’ copyrighted works “as soon as they are created.”

UK Council of Music Makers Call for Streaming Royalties Reform: The Council of Music Makers, comprised of the Ivors Academy, the Featured Artists Coalition, the Musicians’ Union, the Music Producers Guild and the Music Managers Forum, unveiled a five-point plan for music streaming royalties reform for musicians and songwriters and called on record labels, music publishers, and digital platforms to work with the UK government, including the UK Intellectual Property Office, to deliver such changes.

Look Forward To And Save the Date For…

USPTO Webinar on IP Basics and Helpful Resources: On October 5 from 12:00 p.m. to 1:30 p.m. ET, the United States Patent and Trademark Office (USPTO) is hosting a free informational webinar on intellectual property (IP) for aspiring entrepreneurs, innovators, and students. The webinar will cover different types of IP, why protecting IP is important, and available local resources and assistance. Pending availability, participants may meet with members of the Office staff following the session.

First Sale: The Role of IP Rights in Markets: On October 12 and October 13, the Center for the Intellectual Property x Intellectual Property (C-IP2) at George Mason University Antonin Scalia Law School is hosting its Annual Fall Conference, titled First Sale: The Role of IP Rights in Markets. The event is designed to bring together academics, policymakers, innovators, and creators to discuss key issues in the IP system, namely those surrounding tech, IP, and the arts.

Deadline to Submit Reply Comments to USCO on NPRM on Expanded Access to Electronic Deposits of Copyrighted Works: Reply comments are due October 16 in response to the U.S. Copyright Office’s notice of proposed rulemaking (NPRM). The proposed rule expands the categories of eligible electronic deposits covered by the Office’s current regulation with the same limitations on access as are currently in place. The proposed changes are part of ongoing steps by the Library of Congress and the Copyright Office to encourage submission of works in electronic form and therefore reduce the need for copyright owners to deposit physical copies. 

AIPLA Annual Meeting: October 19 through October 21, the 2023 American Intellectual Property Law Association (AIPLA) Annual Meeting will take place at the Gaylord National Resort and Convention Center. The meeting will encompass more than 1,000 intellectual property practitioners who will attend networking events, committee meetings, receptions, and more. A wide range of IP-related topics will be covered, including the ethical implications of artificial intelligence (AI) in research and development, trademarks and the First Amendment, patent licensing, transformative fair use following the recent Warhol v. Goldsmith decision, and numerous copyright-related discussions.

Deadline to Submit Comments on MMA Royalty Distribution Issues in New Supplemental NPRM: Comments are due on October 26 in response to the U.S. Copyright Office’s supplemental notice of proposed rulemaking (SNPRM). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right in the context of various royalties administered by the MLC.

Deadline for Submitting Comments to USCO for AI Study: Written comments are due October 30 in response to the U.S. Copyright Office’s notice of inquiry of various questions related to artificial intelligence and copyright to inform the Office’s ongoing study of AI issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs. 

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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!

In August, the courts were ablaze with issuing big decisions in several major copyright cases, including one on AI and copyright authorship. Here is a quick snapshot of the 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: We published several blogs in August:  

• The Barbie movie made a splash this summer, and Copyright Alliance CEO, Keith Kupferschmid, wrote this blog post highlighting how copyright laws helped protect and propel this beloved doll into a cultural icon.
• We published a three-part blog series on movie copyright cases that filmmakers should know, exploring Infringement Cases, Fair Use Cases, and Copyright Authorship.
• In time for back-to-school, we published this blog post on four tips for educators to navigate copyright law.

Copyright Office Activities 

CCB Status Update: At the end of August 2023, 557 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 217 are “smaller claims.” In at least 159 of all cases, the claimant is using legal counsel. At least 475 of the cases involve infringement claims, 91 involve Section 512(f) misrepresentation claims, and 18 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 (239 cases); Literary Works (86); Motion Picture and Audiovisual Works (108); Sound Recordings (64); Musical Works (36); and some cases include claims for multiple works. Sixty-one foreign residents have filed claims. Of all the cases filed, 379 have been dismissed for the following reasons: Due to Respondent’s Opt Out (48); Due to Failure to Amend Noncompliant Claim (206); Registration Issues (10); Due to Failure to Provide Proof of Service of Process (77); Claimant Withdrawal and Dismissal of Claims (31); and Settlement (5). There are 49 active proceedings and four final determinations.  

USCO Requests Comments on AI Study: On August 30, the Copyright Office published a notice of inquiry and request for comments in the Federal Register for its Artificial Intelligence and Copyright study. The notice seeks comments to help the Office assess whether legislative or regulatory steps are warranted and to inform the Office on issues involving the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs. The deadline for submitting comments is October 18, 2023, and reply comments is November 15, 2023.  

CRB Issues Final Determination for Phonorecords Royalties: On August 10, the Copyright Royalty Board (CRB) announced a final determination after the district court for the District of Columbia had vacated and remanded part of a CRB’s determination of rates and terms for making and distributing phonorecords for the period beginning January 1, 2018 and ending on December 31, 2022 (Phonorecords III). The determination includes a rate increase from 10.5% to 15.1% for on-demand streaming. More information is available here.  

USCO Publishes Final Rule on Ex Parte Communications: On August 11, the Copyright Office published a final rule on the procedures governing the use of ex parte communications in informal rulemakings, including the instructions for requesting ex parte meetings and identifying impermissible ex parte communications. The final rule largely memorializes existing procedures for ex parte communications but incorporates a few changes/clarifications including clarifying that ex parte communications include those communications that occur after the commencement of a rulemaking, whether the rulemaking process begins with the publication of an NPRM or another Federal Register notice, such as an NOI.  

USCO and LOC Provides Updates on Copyright Office Modernization Efforts: On August 16, the Library of Congress and Copyright Office hosted a Copyright Public Modernization Committee meeting which featured the progress made in modernization efforts to the Copyright Office’s online services and systems. In her opening remarks, Register Shira Perlmutter provided updates on the Copyright Office’s activities including the initiation of the latest rulemaking proceeding of section 1201 exemptions, preparing for the next fee study, intensifying work on AI issues, and progressing on the Electronic Copyright System. The modernization team presented updates and features including a feature which directs registrants to choosing the correct application form by asking a series of questions, standardizing displays for forms in the limited licenses that the Copyright Office administers, and digitizing many more analog historical records for the public. A recording of the meeting will be uploaded to the Copyright Office’s Modernization Website.  

USCO Declines to Conduct a Study on Section 115 Compulsory Licenses: The Copyright Office responded to a June letter penned by musician, George Johnson, declining to engage in a new study of the section 115 compulsory mechanical license. The Office noted that such a study was premature given the recent enactment of the Music Modernization Act.  

Biden Administration Activities 

USPTO Receives Comments for Study on Anti-Piracy: The U.S. Patent and Trademark Office (USPTO) received 54 comments in response to its request for public comments on its study titled: Future Strategies in Anticounterfeiting and Antipiracy. The comments were originally due on August 23, but the USPTO informally announced two days after the deadline, that the comment period had been extended to September 25, and formalized this announcedment in a Federal Register notice on August 31. The USPTO received 54 comments in total and will hold a public roundtable on the issues on October 3. The Copyright Alliance submitted comments addressing a range of copyright piracy issues, including the need for better education for consumers, the ineffectiveness of certain provisions of the DMCA, and the need for the adoption of site-blocking mechanisms in the U.S. Many others also filed comments including the American Association of Independent Music, UFC, NBA, and NFL, the Motion Picture Association, Association of American Publishers, Entertainment Software Association, and the U.S. Copyright Office.  

Congressional Copyright Activity 

Senate Majority Leader Schumer to Hold AI Insight Meeting: According to reports, Senator Chuck Schumer (D-NY) will hold the first scheduled “Insight Forum” on AI issues on September 13, which will be closed to the press. The forum will includes a list of speakers from the tech and creative industries including, Mark Zuckerberg, CEO of Meta, Sam Altman, CEO of OpenAI, Jensen Huang, CEO of NVIDIA, Satya Nadella, CEO of Microsoft, Elon Musk, Tesla CEO, Sundar Pichai, CEO of Alphabet, and Charles Rivkin, Motion Picture Associaiton Chairman & CEO.  

Copyright in the Courts 

Parties Submit Proposed Consent Judgment in Publishers’ Lawsuit Against Internet Archive: On August 11, the district court for the Southern District of New York issued an order accepting a joint proposal submitted by Hachette Book Group, HarperCollins Publishers, Penguin Random House, and Wiley (the “Plaintiffs”), together with the Internet Archive (IA) regarding the judgment to be entered in Hachette Book Group, et al., v. Internet Archive. In March 2023, the court had found IA liable for copyright infringement for scanning and distributing digital copies of Plaintiffs’ books and rejected IA’s fair use defenses. The proposed consent judgment provided for a stipulated permanent injunction preventing IA from offering unauthorized copies of the Plaintiffs’ books to the global public under the manufactured theory of “controlled digital lending,” and included a confidential agreement on a monetary payment, all subject to Internet Archive’s right to appeal the case. However, the court clarified that the injunction would only apply to the publishers’ print books which were also were available for electronic licensing.  

Court of Appeals Rules USCO’s Enforcement of Section 407 Mandatory Deposits is Unconstitutional: On August 29, the Court of Appeals for the District of Columbia Circuit issued an opinion in Valancourt Books, LLC v. Garland, et al., finding that the way the U.S. Copyright Office enforced Section 407 for physical copies of Valancourt’s works, amounted to an unconstitutional taking of Valancourt’s property. Section 407 of the Copyright Act requires copyright owners to deposit two copies of the work with the Library of Congress within three months of its publication, and was a provision enforced by the Copyright Office via demand letters to have noncompliant owners comply with the provisions or pay a fine. The court found that “because the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection in them, the demand to forfeit property cannot be justified as the conferral of a benefit—i.e., copyright protection—in exchange for property.”  

Record Labels Sue Internet Archive: On August 11, Universal Music Group, Sony Music Entertainment, Capitol, and other record labels filed a lawsuit against the Internet Archive, alleging copyright infringement of 2,749 pre-1972 sound recordings for the mass digitization and distribution of those songs as part of the Internet Archive’s “Great 78 Project.” Through the project, the Internet Archive digitizes sound recordings fixed in physical 78 rpm records and uploads the files to a webpage that allows users to stream and download the recordings.  

DC District Court Rules that AI-generated Art Is Not Protectable by Copyright: On August 18, Judge Howell of the US District Court for the District of Columbia issued an opinion granting the U.S. Copyright Office’s motion for summary judgment in Thaler v. Perlmutter, a case challenging the Office’s denial of registration for a two-dimensional artwork generated by an AI algorithm called the “Creativity Machine.” Granting the Copyright Office’s motion and denying Thaler’s, the order explains that “defendants are correct that human authorship is an essential part of a valid copyright claim” and “a bedrock requirement of copyright.” The court also denied Thaler’s claim that the Copyright Office’s refusal to register the work was “arbitrary and capricious”—and therefore a violation of the Administrative Procedures Act (APA)—finding that “the Register did not err in denying the copyright registration application.” Thaler’s counsel said that they plan to appeal the decision.    

OpenAI Moves to Dismiss Class Action Lawsuit: On August 28, OpenAI filed motions to dismiss the two class action lawsuits brought by book authors, including Paul Tremblay and Sarah Silverman. In both briefs, OpenAI argues against the plaintiffs’ characterization that every ChatPGT output is an infringing “derivative work” of the plaintiffs’ books, stating that the plaintiffs did not sufficiently prove substantial similarity. The AI company also argued that the vicarious copyright claims should also be dismissed, stating that the plaintiffs did not show that OpenAI had the right and ability to supervise any infringing conduct nor did they show that OpenAI had a direct financial benefit resulting from the infringements.  

SoundExchange Sues SiriusXM Alleging Underpayment of Recording Artist Royalties: On August 16, SoundExchange filed a lawsuit against SiriusXM in the Eastern District of Virginia, alleging that the satellite radio company undercompensates recording artists because it overcounts its share of revenue that comes from webcasting, resulting in a lower gross revenue amount for the company’s satellite broadcasting to calculate royalties payable to recording artists. As a result of SiriusXM’s calculations, the complaint alleges that the company withheld more than $150 million in royalties.  

Court Denies Apple’s Petition for a Rehearing in Case Against Corellium: On August 23, the Court of Appeals for the Eleventh Circuit denied a petition made by Apple for a rehearing en banc of the court’s ruling that the reproduction of Apple’s iOS by the software company, Corellium, qualified for the fair use exception. Apple argued that the court’s decision conflicted with the Supreme Court’s opinion in the Andy Warhol Foundation v. Goldsmith, which was issued days after the Eleventh Circuit had ruled in favor of Corellium. However, the court stated that after carefully reviewing the High Court’s Warhol opinion, it did not alter the balance of the four factors that they weighed in favor of fair use.  

Triller and Sony Music Entertainment Settle Lawsuit: On July 21, Sony Music Entertainment and Triller entered into a confidential settlement, resolving the infringement lawsuit brought by Sony Music for Triller’s breach of an agreement covering the platform’s use of Sony musicians’ songs. In April 2023, Triller had settled a portion of the lawsuit, agreeing to pay Sony Music $4.57 million for contract breaches. Triller is in the midst of another active lawsuit filed by Universal Music Group in January 2023.  

The New York Times Considers Lawsuit Against ChatGPT Maker: According to reports, The New York Times is considering filing a lawsuit against OpenAI, the developers of ChatGPT. The parties were reportedly in contentious negotiations for a licensing deal in which OpenAI would use The Times’ news content for AI tools.  

Court Awards DISH Network and Sling Half Billion Dollars in DMCA Piracy Lawsuit: On August 14, the district court for the Southern District of Texas entered a default judgment for plaintiffs, DISH Network and Sling TV, and awarded almost $500 million in statutory damages for over 2 million violations of the Digital Millennium Copyright Act’s (DMCA) anti-circumvention provisions.  

Books3 AI Training Dataset Is Taken Down: According to reports, Danish anti-piracy group, Rights Alliance, successfully submitted a takedown notice on behalf of Danish publishers to remove the “Books3” dataset from the website, The Eye. First released in late 2020, the Books3 dataset is a plaintext collection of 196,640 books sourced from the pirate site, Bibliotik, and has been used to train various generative AI models developed by Meta and possibly other AI companies.

Copyright in Other Countries 

UK Culture, Media and Sports Committee Calls on UK Government to Abandon Proposed Overbroad TDM Exceptions: On August 30, the United Kingdom’s House of Commons Culture, Media and Sport Committee issued a report, calling on the UK Government to abandon its proposal from June 2022 to categorically exempt text and data mining of copyrighted works under the country’s copyright laws. The Committee further recommended that the UK government work to facilitate mutually beneficial licensing schemes to support small AI developers in particular, and that the government should continue to support the creative community and “work to regain the trust of the creative industries following its abortive attempt to introduce a broad text and data mining exemption.”

UK Courts Grant Site Blocking Orders: According to reports, the High Court in London granted broadcaster, Sky, and the Premier League injunctive orders that would allow the rights holders to block IPTV and other pirate services and sources that illegally stream and provide access to soccer games and other content.  

Industry Activities 

YouTube Music Launches MusicAI Incubator with Universal Music Group; Publishes AI Music Principles: On August 21, YouTube Music published a set of AI music principles and launched its YouTube Music AI Incubator in partnership with Universal Music Group. The principles include: (1) Responsible AI development in partnership with the music industry; (2) Protecting the creative work of artists on YouTube; and (3) Scaling trust and safety policies to protect the YouTube community. Universal Music Group chairman and CEO, Sir Lucian Grainge, stated: “Today, our partnership is building on that foundation with a shared commitment to lead responsibly, as outlined in YouTube’s AI principles, where Artificial Intelligence is built to empower human creativity, and not the other way around,” he added. “AI will never replace human creativity because it will always lack the essential spark that drives the most talented artists to do their best work, which is intention. From Mozart to The Beatles to Taylor Swift, genius is never random.” More information is available here.  

Rights Holders Pen Letter Calling on Global Leaders to Support IP Rights: On August 9, news media companies and rights holder groups around the globe, including Getty Images, National Press Photographs Association, News Media Alliance, and the Authors Guild published an open letter, urging lawmakers to consider regulations and industry action surrounding generative AI that increases transparency, promotes the pursuit of consent from rights holders for use of works for AI training purposes, facilitates collective negotiations regarding the terms of AI providers access and use of works protected by intellectual property, and requires AI providers to remove bias and misinformation from services. More information is available here.  

Look Forward To And Save the Date For…

IPO 2023 Annual Meeting: From September 10-11, the Intellectual Property Owners (IPO) Annual Meeting will offer “a mix of educational programs featuring leaders in the IP industry, committee meetings, networking opportunities, sponsors, exhibitors, and more.” The event brings together IP professionals from around the world to discuss strategies, trends, and best practices. More information is available on the registration page.  

Copyright Alliance AI and Copyright Webinar: On September 13 from 1:00-2:00 p.m. ET, the Copyright Alliance, along with numerous VLA and Community Partners, is hosting a webinar titled, Artificial Intelligence and Copyright: The Next Frontier. This event will explore the complex relationship between copyright and artificial intelligence (AI). Specifically, it will cover how AI has transformed creative processes and delve into the legal and ethical implications surrounding copyright ownership, licensing, fair use, and other opportunities and challenges brought on by the AI revolution. Legal experts from the Copyright Alliance, Kevin Madigan and Rachel Kim, will host the webinar. More information is available on the registration page.  

Copyright + Technology Conference 2023: On September 14 from 9:00 a.m.- 5:00 p.m. ET, the Copyright Society, GiantSteps Media, and Fordham University School of Law are hosting their annual Copyright and Technology Conference, which will “focus on the dramatic and fast-moving influences that technology has on copyright in the digital age.” Now in its fourteenth year, the conference is attended by technologists, attorneys, media industry practitioners, and public policy decision-makers to discuss topics related to copyright and technology. This year’s keynote speaker is Pina D’Agostino, a Professor at Osgoode Hall Law School. More information is available on the registration page.  

WIPO Conversation on Generative AI and IP: From September 20 from 4:00 a.m.- September 21 4:00 a.m., the eighth session of the World Intellectual Property Organization’s (WIPO) conversation series will explore the intersection of generative artificial intelligence (AI) and intellectual property (IP) rights. More information is available on the registration page.  

USCO Monthly Recordation System Webinar: On September 28 at 1:00 p.m. ET, the U.S. Copyright Office will hold its next monthly webinar 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 electronically transfer their copyrights to someone else. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” More information is available on the registration page.

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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!

In July, there were several Congressional hearings on copyright law issues and a flurry of new AI class-action lawsuits. Here is a quick snapshot of the copyright-related activities that occurred during the month of July as well as a few events to look forward to in August.

Copyright Alliance Activities

Copyright Alliance Submits Comments to OSTP on AI Accountability: On July 7, the Copyright Alliance filed comments in response to the request for information (RFI) published by the Office of Science and Technology Policy (OSTP) in the Federal Register on May 26, 2023, requesting comments to help OSTP update U.S. national priorities and future actions on artificial intelligence (AI). The comments focus on issues related to protecting the rights of creators and copyright owners and promoting economic growth.

Copyright Alliance Blogs: We published several blogs in July including a blog post on takeaways from the recent Senate Judiciary Committee IP Subcommittee’s hearing on AI and copyright law issues.

Copyright Office Activities

CCB Status Update: At the end of July 2023, 536 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 205 are “smaller claims.” In at least 155 of all cases, the claimant is using legal counsel. At least 459 of the cases involve infringement claims, 84 involve Section 512(f) misrepresentation claims, and 15 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 (230 cases); Literary Works (83); Motion Picture and Audiovisual Works (103); Sound Recordings (61); Musical Works (35); and some cases include claims for multiple works. Fifty-seven foreign residents have filed claims. Of all the cases filed, 334 have been dismissed for the following reasons: Due to Respondent’s Opt Out (44); Due to Failure to Amend Noncompliant Claim (180); Registration Issues (7); Due to Failure to Provide Proof of Service of Process (71); Claimant Withdrawal and Dismissal of Claims (27); and Settlement (5). There are 51 active proceedings and four final determinations. Two final determinations were issued in June and July:

• Leo Robin Trust v. Warner Chappell Music, 22-CCB-0072: The case involved the estate of a songwriter, who alleged that the respondent, Warner Chappell Music, did not pay royalties for using the songwriter’s musical works in the 2019 film, The Aftermath. To prove that it is the owner of the works, the respondent provided evidence that the works were made under the work made for hire doctrine. In the final determination issued at the end of June 2023, the CCB granted the parties’ request to mutually dismiss the claim with prejudice, meaning that the claim cannot be brought before the CCB again or to federal court.

• Armatus Dealer Uplift, LLC v. Wooden Automotive Consultants LLC, 22-CCB-0269: The case involved a claimant, an automotive parts servicer, who discovered an allegedly infringing video created by the respondent. The claimant argued that the respondent copied and made a derivative of the claimant’s 90-second video. In its final determination issued at the beginning of July 2023, the CCB approved a settlement reached by the two parties, which includes the following terms: (1) respondent’s concession of copyright infringement; (2) respondent’s agreement to not violate the claimant’s copyrighted material in the future and to immediately remove infringing material from its websites and social media platforms; and (3) $9,000 in damages payable to the claimant.

USCO Receives Comments on Extending Interim Rule on Secure Tests: On July 3, the Copyright Office received nine comments responding to the Office’s request for comments on extending the interim rule to allow otherwise-eligible tests that were administered online during the national emergency to qualify as secure tests, provided the test administrator employs sufficient security measures. Many comments requested that the Office revise the definition of “secure tests” to extend the special examination process and deposit requirements for all remote, secure tests, regardless of whether it was a test that was administered at testing centers prior to May 8, 2020, or developed as remote tests after that date—arguing that the rule should accommodate the fact that secure, remote tests have become more pervasive since the pandemic.

USCO Hosts Webinar on International AI Law: On July 26, the Copyright Office hosted a webinar on international copyright issues and AI as part of its ongoing AI initiative to examine the copyright issues raised by AI technology. Register of Copyrights, Shira Perlmutter, gave opening remarks, during which she announced that the Office will be publishing its Notice of Inquiry on copyright and AI issues in late August. The webinar featured two panels, in which the presenters discussed how other countries are approaching copyright questions related to AI such as AI authorship, AI training, exceptions and limitations, and infringement. They also provided an overview of legislative developments in other regions and highlighted possible areas of convergence and divergence involving generative AI. The first panel, focusing on an overview of various international perspectives and regulations on AI and copyright, featured Professors Luca Schirru, KU Leuven; Marcus von Welser, Vossius; Raquel Xalabarder Plantada, Universitat Oberta de Catalunya; Shlomit Yanisky-Ravid, Ono Academic College; and Peter Yu, Texas A&M University School of Law. The second panel featured Professors Jane Ginsburg, Columbia Law School; Andres Guadamuz, University of Sussex; Bernt Hugenholtz, University of Amsterdam; and Matthew Sag, Emory University School of Law. During the second panel, the professors discussed the permissibility of AI exceptions under the Berne Convention, infringement and liability in the ingestion and output stages, possible AI licensing solutions, and the international perspectives on AI vs. human authorship.

USCO Publishes Final Rule on CCB Agreement-Based Counterclaims: On July 27, the Copyright Office published a final rule amending the regulations to address the filing of agreement-based counterclaims and related discovery requirements in cases before the Copyright Claims Board (CCB). The Copyright Alliance submitted the only comment for this rulemaking proceeding. The Office’s amendments set out requirements for asserting and responding to agreement-based counterclaims (i.e., counterclaims that arise under an agreement/contract) as well as standard interrogatories and standard requests for the production of documents for such counterclaims. The final rule will take effect August 28, 2023.

Congressional Copyright Related Activities

SJC IP Subcommittee Holds Hearing on AI and Copyright Law: On July 12, the Senate Judiciary Committee’s IP Subcommittee held a hearing titled Artificial Intelligence and Intellectual Property—Part II: Copyright. Witnesses included Jeffrey Harleston, General Counsel and EVP of Universal Music Group; Karla Ortiz, Concept Artist, Illustrator, and Fine Artist; Matthew Sag, Professor of Law, Emory University School of Law; Dana Rao, EVP, General Counsel and Chief Trust Officer, Adobe; and Ben Brooks, Head of Public Policy, Stability AI. Chairman Chris Coons (D-DE) kicked off the hearing, noting the importance of ensuring that copyright discussions are part of developing AI frameworks and that the U.S. Copyright Office should be involved. Ranking Member Thom Tillis (R-NC) stressed the importance of copyright industries on the American economy and workforce, and also noted that examination was needed to explore whether changes are necessary to incentivize AI development. The Senators and panelists discussed various topics including the ability of artists to opt-out of AI training and the feasibility and technical effects of respecting those requests on AI development; the role and desirability of licensing copyrighted works for AI ingestion; voluntary, standardized, or other international frameworks around transparency in all stages of AI development and use; the application of fair use law in the context of AI training; and the desirability or need for a federal right of publicity law and other changes to the law. More information is available in this Copyright Alliance blog post.

Legislative Branch Appropriations Bill Introduced; $101 Million Allocated to USCO: On June 27, Representative Mark Amodei (R-NV) introduced the Legislative Branch Appropriations Act of 2024, H.R. 4364, which allocates $101,011,000 for the U.S. Copyright Office, of which not less than $10.3 million is allocated for Office modernization initiatives.

SJC IP Subcommittee Holds Roundtable on AI and Music Issues: On July 19, the Senate Judiciary Committee’s (SJC) IP Subcommittee held a roundtable briefing on AI and music issues. Witnesses included Chris Horton, SVP of Strategic Technology, Universal Music Group; Brian (BT) Transeau, artist and CEO, Soundlabs.AI; Ashley Irwin, President of the Society of Composers and Lyricists; and Dr. Moiya McTier, Executive Director, Human Artistry Campaign.

SJC IP Subcommittee Holds Oversight Hearing on USPTO: On July 26, the Senate Judiciary Committee’s (SJC) IP Subcommittee held a hearing titled Oversight of the United States Patent and Trademark Office, featuring U.S. Patent and Trademark Office (USPTO) Director, Kathi Vidal, as the sole witness. When speaking on Office priorities, Director Vidal noted that the agency is focused on AI, including its relationship to patent protection and the copyrighted works that are important to our economy. Director Vidal also noted that she is working with the White House and the U.S. Copyright Office on AI policy and views it as one of her organization’s greatest challenges.

SJC Subcommittee on Privacy Holds AI Hearing: On July 25, the Senate Judiciary Committee’s (SJC) Subcommittee on Privacy, Technology, and the Law held a hearing titled Oversight of AI: Principles for Regulation, featuring as witnesses Stuart Russell, Professor of Computer Science, University of California, Berkeley; Yoshua Bengio, founder and Scientific Director of Mila at Quebec AI Institute; and Dario Amodei, Chief Executive Officer, Anthropic. In response to a question on property rights from Senator Josh Hawley (R-MO), Professor Bengio stated that there could be mechanisms to compensate people who contribute to AI machines, such as artists where an output is similar to a copyrighted work. Senator Marsha Blackburn (R-TN) later raised concerns on how AI-generated content could limit opportunities for artists and creators and asked Professor Russell how the creative community could make a living without falling victim to AI’s misuse. Professor Russell acknowledged that the issue was significant and recommended further examination into copyright and fair use issues.

HJC Holds Pro Codes Act Markup Resulting in Bill Being Held Over: On July 19, the House Judiciary Committee held a markup of the Pro Codes Act, H.R. 1631, which ensures the continued copyright protection for codes and standards created by Standards Development Organizations (SDO) that have been incorporated by reference into law, while ensuring that there is public accessibility to such codes and standards. The bill was eventually held over and there will likely be a hearing on the legislation to further discuss the issues after the August recess.

HJC IP Subcommittee Holds Right-to-Repair Hearing: On July 18, the House Judiciary Committee’s (HJC) IP Subcommittee held a hearing titled Is There a Right to Repair?  Featuring an unbalanced panel that included right-to-repair supporters Aaron Perzanowski, Thomas W. Lacchia Professor of Law, University of Michigan Law School; Kyle Wiens, co-founder and CEO, iFixit; Paul Roberts, founder, SecuRepairs.org and founder and Editor-in-Chief, the Security Ledger; and Scott Benavidez, Chairman, Automotive Service Association and owner, Mr. B’s Paint & Body Shop, as well as IP expert, Devlin Hartline, Legal Fellow, Hudson Institute’s Forum for Intellectual Property. During the hearing, the subcommittee examined the current legal landscape of the right to repair and intellectual property including discussing laws and regulations at both the federal and state levels, as well as the implications for various industries, ranging from automotive to software to consumer electronics.

Copyright in the Courts

Court Holds Hearing in Visual Artist Class Action Lawsuit Against AI Companies: On July 19, the Northern District of California held a hearing on motions to dismiss a class action lawsuit brought by a group of visual artists—Sarah Anderson, Karla Ortiz, and Kelly McKernan—against Stability AI, Midjourney, and DeviantArt. At the hearing, Plaintiffs’ counsel conceded that two of the named plaintiffs have not registered the copyright in their works. and Judge William Orrick expressed skepticism that each of the defendants’ products incorporated plaintiffs’ works in their entirety. Judge Orrick also said the plaintiffs are unlikely to succeed on their secondary liability claims, noting that he did not believe that a “claim regarding output images is plausible at the moment, because there’s no substantial similarity” between images created by the artists and the AI systems and that more was needed to clarify the differences in the infringement claims against the various defendants. Judge Orrick indicated that he would dismiss most of the claims due to these concerns, but that the plaintiffs “can take comfort in the leave to amend.”

Sarah Silverman Among Authors Who File Class-Action Lawsuit Against OpenAI and Meta: On July 7, Sarah Silverman, Christopher Golden, and Richard Kadrey filed a class-action lawsuit against OpenAI and a separate class-action lawsuit against Meta. Both cases were filed in the district court for the Northern District of California. The complaints accuse the AI companies of copyright infringement related to the unauthorized use of plaintiffs’ books to train their proprietary large language models (LLM) ChatGPT and LLaMA. The plaintiffs allege that the companies harvested mass quantities of literary works through illegal online “shadow libraries” and made copies of plaintiffs’ works during the training process. In addition to claims for direct infringement, the complaint alleges that every output of the AI models is an infringing derivative of plaintiffs’ works for which the companies are vicariously liable. Also included are DMCA claims for the removal of copyright management information under section 1202(b), as well as claims for unfair competition, negligence, and unjust enrichment. The complaint requests statutory damages, injunctive relief, and costs and attorney fees.

Class Action Lawsuit Filed Against Google Over Use of Copyrighted Works and Personal Information for Google AI Products: On July 11, a group of anonymous plaintiffs filed a class-action lawsuit against Google for the use of personal information and various copyrighted works to train its AI models. The plaintiffs allege privacy law violations, violation of California’s unfair competition law, other state law violations, direct and contributory copyright infringement, and DMCA violations. The complaint lists Google’s generative AI models and, in particular, alleges that Google’s large language model, Bard, is able to generate summaries of copyrighted books or output that reproduces verbatim excerpts from copyrighted books. In addition to damages, the plaintiffs are requesting an injunction compelling the establishment of an independent AI council to monitor and oversee Google AI products and the destruction and purging of class members’ Personal Information, which includes copyrighted works and creative content.

Ninth Circuit Upholds Server Test: On July 17, the Ninth Circuit Court of Appeals upheld its “server test” when it affirmed the lower court’s dismissal of a class-action lawsuit brought by two photographers alleging that Instagram violated the public display right by permitting third-party embedding of the photographers’ works. The Ninth Circuit’s “server test” provides that a copyright owner’s public display right is not violated unless the displayed image is stored on the computer’s server. The court rejected the plaintiffs’ arguments that (1) the “server test” is limited to search engines, with the court stating that there was no legal support for this argument; (2) the “server test” is inconsistent with the Copyright Act, with the court stating that it is bound by precedent case law; and (3) that the “server test” was overturned by the Supreme Court’s decision in Aereo, with the court stating that unlike infringement of the public performance right, which was at issue in the Aereo case, infringement of the public display rights requires that a copy of the work be displayed. At the end of the opinion, the court acknowledged that it is “concerned with the various tensions in the law and the implications of our decisions, but we are not the policymakers,” and that “some future panel may conclude that there are ways to display a copy other than to store it on a server.”

Copyright in Other Countries

European Rightsholders Groups Urge EU To Respect Copyright When Considering AI Regulations: European rightsholders, including the Center of the Picture Industry, European Magazine Media Association, and the International Federation of the Phonographic Industry, issued a statement that called on EU lawmakers to support provisions to ensure that the EU AU Act “is fit for the purpose of protecting the work of European creators and rightsholders.” The group details that accurate and transparent record keeping is essential to avoid issues like “AI laundering” and ensure appropriate prior authorizations for the use of copyright protected works are being secured.

UK Music Publishes AI Position Paper and Principles: On July 11, UK Music’s Chief Executive, Jamie Njoku-Goodwin, sent a letter to Minister Lucy Frazer highlighting the UK music industry’s AI principles from its recent Policy Position Paper on AI and urging the government to identify the creative industries as a key growth sector of the UK and to address issues around AI permission and transparency. The letter also highlights five key principles: “the importance of creators’ choice and consent, the need for record keeping, the important principle that without human creativity there should be no copyright, the requirement for AI-generated works to be clearly labelled, and the need for protection of personality rights.”

Italian Senate Approves Bill to Block Pirate Streaming Websites and IPTV Devices: According to reports, on July 12, Italy’s upper house Senate unanimously passed a bill that enables its communications regulator, AGCOM, to swiftly block pirate streaming websites and IPTV services and to block access to mirror sites.

Chinese Government Finalizes Generative AI Rules: On July 13, the Cyberspace Administration of China (CAC) announced that the Chinese government had finalized regulations on generative AI, which will be effective August 15. The regulations require generative AI services to obtain a license to operate in the country, conduct security assessments, respect IP rights, take measures to prevent generation of illegal content, and adhere to the “core values of socialism.”

Russian Media Group Opposes Bill to Permit Widescale Piracy of Foreign Works: The Media Communications Union, a group of Russian media companies and rightsholders, sent a letter to the Russian government, opposing a proposed bill that would amend Russia’s law permitting piracy of copyrighted works from non-friendly countries. The amendment would permit exclusive foreign licensees to translate, reproduce, and public distribute such works without the rightsholder’s permission, at terms, conditions, and prices set by the licensee. The letter reportedly states that the bill would negatively affect domestic exclusive licensees and that ultimately, domestic exclusive licensees who had preexisting licensing agreements with foreign rightsholders should be able to decide whether the works are made available—works that should not be permitted to be pirated.

Australian Court Grants Movie Studios a Site Blocking Order: Only July 7, the Federal Court in Australia granted an injunctive order for a group of movie studios, ordering various internet service providers to block user access to infringing pirate websites. Though the original request was filed by the studios in early June, the court issued the injunction on the same day when final documentation for the request was submitted.

Creator Coalition Pens Appeal to EU’s TDM Exception; Asserts That It Violates International Treaties: In July, a creator coalition penned a letter to the European Union and United States government, to amend or provide guidance on EU’s current text-and-data-mining (TDM) exception under Articles 3 and 4 of the Copyright Directive to redress violations with the Berne Convention and WIPO Copyright treaties. The coalition includes the American Society for Collective Rights Licensing (ASCRL), Artists Rights Society (ARS), American Photographic Artists (APA), National Press Photographers Association (NPPA), American Society of Media Photographers (ASMP), Graphic Artists Guild (GAG), Authors Guild, Society of Composers & Lyricists (SCL), Songwriters Guild of America (SGA), Music Creators of North America (MCNA), and the Concept Art Association (CAA). The statement argues that the Berne Convention three-step test is violated because copying protected works for AI development interferes with the normal exploitation of the works and that the opt-out mechanism in the current exception is practically ineffective and impossible and is a formality prohibited by the Berne Convention. The group also urges the United States government to “use all available means to bring the European Union into compliance with the Berne Convention, as incorporated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in connection with the application of Articles 3 and 4 to generative AI.”

Canadian Court Grants Dynamic Website Blocking Order for Illegal Streaming of Certain MLB Games: On July 18, Canada’s Federal Court granted an injunctive order for plaintiff media companies, ordering Canadian Internet Service Providers to block access to certain illicit streaming websites and services that illegally livestream Toronto Blue Jay games in the Major League Baseball’s 2023 season. The plaintiffs will cover the costs associated with implementation of the order up to the amount of $50,000.

Industry Activities

Thousands of Authors Urge AI Companies to Stop Using Copyrighted Works Without Consent and Compensation: In a July 17 segment of National Public Radio (NPR), Authors Guild CEO Mary Rasenberger noted that that the Guild, along with more than 8,000 authors, penned a letter to artificial intelligence companies—such as OpenAI, Meta, and others—requesting that the companies stop using their works without permission and compensation. According to reports, “The advent of text-based generative AI applications like GPT-4 and Bard, which scrape the web for authors’ content without permission or compensation and then use it to produce new content in response to users’ prompts, is giving writers across the country even more cause for worry.” Notable authors who have signed onto the letter include Nora Roberts, Viet Thanh Nguyen, Michael Chabon, and Margaret Atwood, to name a few.

Look Forward To And Save the Date For…

USPTO Stakeholder Listening Session on U.S. IP Priorities Abroad: On August 2 from 3- 6 p.m. PT, the U.S. Patent and Trademark Office (USPTO) will host an event to share the latest developments in the Office’s “international engagements in multilateral and bilateral forums on IP, and how they affect the interests of U.S. stakeholders. Attendees will also learn about USPTO resources available to stakeholders as they expand into international markets.” The event is free and open to the public and will be held during the Asia Pacific Economic Cooperation (APEC) IP Experts Group in Seattle, Washington. Attendees must register in advance. More information about the event is available on the event page.

Deadlines to Submit Written Petitions for Ninth Triennial Rulemaking to USCO: On June 8, the U.S. Copyright Office published a notification of inquiry and request for petitions for its ninth triennial rulemaking proceeding under the Digital Millennium Copyright Act (DMCA) to consider possible temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. Petitions for new exemptions and renewal petitions regarding existing exemptions will be considered in the rulemaking process, which includes three rounds of written comments, followed by public hearings that the Office intends to conduct virtually. Written comments in response to any petitions for renewal must be received by August 11. Written petitions for new exemptions must be received by August 25.

LOC and USCO Copyright Public Modernization Committee Meeting: On August 16 at 1:00 p.m. ET, the Library of Congress and the U.S. Copyright Office will host a summer 2023 meeting of the Copyright Public Modernization Committee, which will be held virtually. Participants will hear from Library of Congress and Copyright Office staff regarding the latest developments of the Enterprise Copyright System. In addition to updates from Library and Copyright Office staff, attendees will have the opportunity to participate in “a moderated conversation about increasing awareness of new developments.” There will also be a Q&A session held during the meeting. The meeting is free and open to the public and more information is available on the registration page.

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June 2023 marked the one-year anniversary of the small copyright claims tribunal, the Copyright Claims Board (CCB). Meanwhile, Congress kept busy on AI issues and a major class-action lawsuit on YouTube content management tools came to an end with a settlement. Here is a quick snapshot of the copyright-related activities that occurred during the month of June as well as a few events to look forward to in July.

Copyright Alliance Activities

Copyright Alliance Submits Comments to NTIA on AI Accountability: On June 12, the Copyright Alliance filed comments in response to the request for comments published by the National Telecommunications and Information Administration (NTIA), regarding self-regulatory, regulatory, and other measures and policies that are designed to provide assurance that artificial intelligence (AI) systems are legal, effective, ethical, safe, and otherwise trustworthy. The comments discuss accountability and transparency in the context of ingestion of copyrighted works by AI systems.

Copyright Alliance Submits Comments on CCB Agreement-Based Counterclaims: On June 20, the Copyright Alliance submitted comments to the U.S. Copyright Office on its proposed regulations for agreement-based counterclaims filed with the Copyright Claims Board (CCB). While the comments do not raise substantive objections with the rule, they reiterate the importance of ensuring that CCB rules and regulations do not become cumbersome or complex for pro se parties and that regulations governing protective orders should continue to be applicable.

Copyright Alliance Blogs: We published several blogs in June:

• J. Scott Evans, Senior Director of IP & Advertising Law at Adobe, wrote a blog post on Adobe’s approach to responsible AI development including licensing copyrighted works or using public domain works to train its new AI model, Firefly, and co-founding the Content Authenticity Initiative to increase autonomy and traceable ownership of their works online. 
• We published a blog post to commemorate the one-year anniversary of the CCB, examining how the small copyright claims tribunal is working and who is using it.
• We celebrated Pride Month 2023 in this blog post, exploring the ways in which IP and copyright plays a role in the pervasiveness of and protecting the meaning of the flags to the LGBTQ+ community.

Copyright Office Activities

CCB Status Update: At the end of June 2023, 505 total cases had been filed with the Copyright Claims Board (CCB). Of these cases, 189 are “smaller claims.” In at least 149 of all cases, the claimant is using legal counsel. At least 431 of the cases involve infringement claims, 79 involve Section 512(f) misrepresentation claims, and 14 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 (221); Literary Works (74); Motion Picture and Audiovisual Works (100); Sound Recordings (56); Musical Works (34); and some cases include claims for multiple works. Forty-nine foreign residents have filed claims. Of all the cases filed, 312 have been dismissed for the following reasons: Due to Respondent’s Opt Out (39); Due to Failure to Amend Noncompliant Claim or for Registration Issues (167); Due to Failure to Provide Proof of Service of Process (65); Claimant Withdrawal and Dismissal of Claims (24); and Settlement (17). There have been 3 final determinations. There are 58 active proceedings. 

Copyright Office Celebrates One-Year Anniversary of CCB: In June, the Copyright Office celebrated the one-year anniversary of the Copyright Claims Board (CCB) launch on June 16, 2022. To mark the occasion, the Copyright Office published a blog post, highlighting the CCB and Office’s educational resources and supporting materials about the CCB, numerous outreach events, and an overview on the demographics the CCB is serving. In its 2022–2026 strategic plan, the Office identifies “Copyright for All as an overarching strategic goal: to make the copyright system as accessible to as many people as possible. Launching the CCB is a major step toward copyright for all and expanding access to justice.”

Copyright Office Hosts Webinar on Registrations of Works Containing AI-Generated Elements: On June 28, the U.S. Copyright Office held its webinar titled Guidance for Works Containing AI-Generated Content, where the Office provided examples of applying its AI registration guidelines and walked viewers through how materials should be claimed and disclaimed in the electronic copyright application system. The Office stated that what it considers as “de minimis” is the opposite of what it considers an “appreciable amount.” The Office also announced its next webinar on international AI perspectives, which will take place on July 26th.

Biden Administration Activities

GAO Publishes Report on Generative AI: On June 13, the U.S. Government Accountability Office (GAO) published a two-page report on generative AI, highlighting how it is being used across various sectors and how it is developed. In highlighting the challenges surrounding generative AI, GAO specifically noted that “[G]enerative AI systems could be trained on copyrighted, proprietary, or sensitive data, without the owner’s or subject’s knowledge” and that “[t]here are unresolved requestions about how copyright concepts, such as authorship, infringement, and fair use, will apply to content created or used by generative AI.”

Congressional Copyright Related Activities

Senator Schumer Introduces AI Framework: On June 21, Senate Majority Leader Chuck Schumer (D-NY) introduced his “SAFE Innovation for AI” legislative framework and announced that, starting this fall, he would launch a series of AI Insight Forums that include AI developers, executives, scientists, community leaders, and other stakeholders. The goal of the forums is to progress forward with detailed policy proposals for Congress. Schumer’s framework relies on five pillars: “Security, Accountability, Foundations, Explain, and Innovation.” The “Accountability” prong in the framework calls for supporting creators by addressing copyright concerns and protecting intellectual property. Senator Schumer also acknowledged that an entirely new regulatory process must be created to formulate AI policies because it is “unlike anything Congress has done before.”

HJC IP Subcommittee Holds MMA Hearing: On June 27, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a field hearing in Nashville titled Five Years Later – The Music Modernization Act, to examine the impact of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA), five years after it was signed into law in 2018. The hearing examined the system created by the MMA to administer blanket mechanical licenses and collect and distribute mechanical licensing royalties. The hearing also explored whether the legislation is operating as intended by Congress and considered various reforms. The general sentiment among witnesses was that the MMA and the MLC­—the nonprofit organization established under the MMA to issue blanket mechanical licenses for qualified streaming services—are functioning at a high level. The only consistent criticism among witnesses was that the MLC at times acts as a rule-making body rather than an administrative one—as the MMA statutorily outlines. Witnesses called on legislators and the U.S. Copyright Office to continue involvement in and oversight of the MLC in order to preserve the MLC’s perception as a neutral, impartial administrator. 

New Democratic Chief Counsel for House IP Subcommittee Announced: Jacqui Kappler will be the new Minority/Democratic Chief Counsel for the House IP Subcommittee, replacing Jamie Simpson. Kappler served as Oversight Counsel to the House Judiciary Committee and, before that, was Deputy Chief of Staff and Legislative Director for Representative Hank Johnson (D-GA)

Blackburn and Padilla AMFA Op-Ed: On June 21, Senators Alex Padilla (D-CA) and Marsha Blackburn (R-TN) penned ) penned an opinion piece in Variety, calling on their colleagues to advance the American Music Fairness Act (AMFA), which would create a terrestrial broadcast right under U.S. copyright law. In the op-ed, the senators explain that, because this right does not exist in the United States, American artists are missing out on approximately $200 million each year. AMFA seeks to close this loophole and compensate those hard-working musicians.

Copyright in the Courts

U.S. Supreme Court Denies Cert Petition in Lang Van v. VNG Case: On May 30, the U.S. Supreme Court denied VNG’s petition for certiorari in Lang Van v. VNG—the Ninth Circuit personal jurisdiction case for which the Copyright Alliance filed an amicus brief in support of Lang Van in 2020. The case was brought by Lang Van, a leading producer and distributor of Vietnamese music and entertainment, against VNG, a company based in Vietnam that operates a music streaming website. Lang Van alleged that VNG’s Zing music website and app, which VNG made available in the U.S., offered thousands of Lang Van’s copyrighted works without authorization and that Lang Van received no compensation for VNG’s use. In July 2022, the Ninth Circuit Court of Appeals held that VNG was subject to personal jurisdiction in the United States since VNG met all three prongs of the personal jurisdiction test under Rule 4(k)(2) of the Federal Rules of Civil Procedure, since (1) a copyright infringement claim was a claim under federal law; (2) VNG did not concede that any other state had jurisdiction; and (3) there was substantial evidence of VNG’s intentional direction in and contacts with the United States.

U.S. Supreme Court Denies Cert Petition in Copyright Preemption Case: On June 26, the U.S. Supreme Court denied the cert petition to hear an appeal by lyrics website, Genius, in a case involving whether Google breached Genius’ terms of service by copying its lyrics in Google search results. The issue was whether Genius’ state-law breach of contract claims seeking to enforce its terms of service are preempted by Section 301(a) of the Copyright Act. In 2022, the Second Circuit Court of Appeals had held that Genius’ breach of contract and unfair competition claims were preempted by the Copyright Act. In May 2023, the U.S. Solicitor General had filed a brief, urging the Court to deny the petition because the case was a poor vehicle for clarifying whether the breach-of-contract claims would be preempted for various reasons, including the fact that access to Genius’ website was not conditioned on any express promise to abide by Genius’ terms of service.

Visual Artists Respond to AI Companies’ Motions to Dismiss Infringement Class Action Lawsuit: On June 2, plaintiff Sarah Andersen—representing a class of visual artists—responded to motions to dismiss by AI companies Stability AI, DeviantArt, and Midjourney in response to the visual artists’ class action lawsuit. In their opposition to Stability’s motion to dismiss, plaintiffs claim to have sufficiently alleged direct infringement of their works by Stability and repeat arguments from the initial complaint that Stability infringed plaintiffs’ works by scraping them for unauthorized use as training material, by embedding and storing compressed copies of the works (which were then distributed to Stability’s users); and by creating and distributing Stability’s AI tools, which the response alleges are infringing derivative works. Further, the response alleges that each output that Stability’s tools generate is an infringing derivative work and that plaintiffs need not show substantial similarity because there is direct copying. In addition to direct infringement, the response alleges that Stability is vicariously liable for the infringing acts of its users. Finally, the response claims that plaintiffs sufficiently pled that Stability violated section 1202(b) of the DMCA by removing copyright management information (CMI) from the plaintiffs’ works. In opposition to DeviantArt’s motion to dismiss, plaintiffs argue DeviantArt is liable for many of the same acts of infringement alleged against Stability because DeviantArt’s commercial AI imaging product, DreamUp, knowingly incorporates Stability AI’s imaging product and is itself an infringing derivative work. The opposition claims that DeviantArt cannot limit its liability for direct infringement simply because it did not create Stable Diffusion or does not have knowledge of Stability’s scraping of plaintiffs’ works. Also included in the response is plaintiffs’ claims that they sufficiently pled that DeviantArt breached its own terms of service by creating an AI imaging product that violated copyright law. Similar to the response to Stability, plaintiffs’ opposition to Midjourney’s motion to dismiss accuses the company of seeking to profit from its AI image generator “while leveraging its opacity and complexity to prevent Plaintiffs and this Court from scrutinizing its legality.” The opposition goes on to respond to the arguments in Midjourney’s motion—many of which were also found in Stability’s motion—claiming that plaintiffs have sufficiently pled all claims related to direct infringement, vicarious liability, violations of section 1202(b), and other non-copyright claims. Unlike Stability and DeviantArt, Midjouney’s motion seeks to strike plaintiffs’ class because it claims a workable damages class cannot be constructed, a claim the opposition calls meritless and premature.

Authors Bring Copyright Infringement Lawsuit Against OpenAI: On June 28, two authors of literary works—representing a proposed class of plaintiffs—filed a lawsuit in the U.S. District Court for the Northern District of California against OpenAI. The complaint accuses the AI developer of copyright infringement related to the unauthorized use of plaintiffs’ works to train its proprietary large language model (LLM), ChatGPT. The complaint alleges that OpenAI harvested mass quantities of literary works through illegal online “shadow libraries” and made copies of plaintiffs’ works during the training process. In addition to claims for direct infringement, the complaint alleges that every output of ChatGPT is an infringing derivative of plaintiffs’ works for which OpenAI is vicariously liable. Also included are DMCA claims for the removal of copyright management information under section 1202(b), as well as claims for unfair competition, negligence, and unjust enrichment. The complaint asks for statutory damages, injunctive relief, and costs and attorney’s fees. Plaintiffs are represented by the Joseph Saveri Law Firm, which is the same firm that is representing a group of visual artists in their class action copyright infringement suit against Stability AI.  

Getty Seeks Injunction Against Stability AI in the UK: Getty Images sought an injunction from the London High Court to prevent Stability AI from selling its AI image-generating platform, Stable Diffusion, in Britain and to order the company to hand over and destroy all versions of Stable Diffusion that may infringe Getty’s intellectual property rights. Getty filed a case against Stability AI in London in January 2023, and is also in the midst of a legal battle with the AI company in the U.S.

Schneider Settles Lawsuit Against YouTube: On June 11, the parties voluntarily dismissed a lawsuit brought by Grammy-winning composer and musician Maria Schneider against YouTube and Google, after Schneider’s emergency petition to stay the case and appeal the court’s order denying class certification was denied back in May 2023. Schneider had originally filed a class action lawsuit with Pirate Monitor Ltd. alleging that the YouTube platform does not offer the plaintiffs, who are “ordinary creators of copyrighted works,” the same opportunity to remove infringing work as it does for larger content creators. The details of the settlement agreement were not made public, but the case was dismissed with prejudice.

NMPA Sues Twitter for Massive Copyright Infringement: On June 14, the National Music Publishers Association (NMPA), on behalf of 17 music publishers, filed a lawsuit against Twitter in the Middle District of Tennessee. The music publishers allege copyright infringement of approximately 1,700 songs mostly via audiovisual content posted by Twitter users and Twitter’s repeated failure to remove or disable access to infringing material and cease assistance to known repeat infringers. In a statement by NMPA CEO David Israelite to the LA Times, he noted, “Twitter stands alone as the largest social media platform that has completely refused to license the millions of songs on its service. Twitter knows full well that music is leaked, launched, and streamed by billions of people every day on its platform. No longer can it hide behind the [Digital Millennium Copyright Act] and refuse to pay songwriters and music publishers.”

Ninth Circuit Court Awards Statutory Damages for Individual Photographs Infringed by Zillow: On June 7, a three-judge panel of the Court of Appeals for the Ninth Circuit ruled in favor of VHT, a professional real estate photography studio, in its lawsuit against Zillow. The court affirmed the district court’s ruling that the 2,700 VHT photographs remaining at issue in the case were not a compilation, but rather, that each individual photograph constituted an infringement and that VHT was entitled to an award of statutory damages for each of the 2,700 infringements. Applying case law, interpreting the Copyright Act, and examining the U.S. Copyright Office’s statements on compilations, the court found that because VHT had individually licensed and published the infringed photographs as works separate from VHT’s master photographs database, the photographs had “independent economic value,” supporting the argument that VHT is entitled to statutory damages on a per work basis.

Copyright in Other Countries

Australian Music Industry Petitions Government to Close Loophole for Radio Royalties: The Australian music industry, led by the Australian record industry collecting society, the Phonographic Performance Company of Australia Limited (PPCA), launched a petition called “Radio Fair Play,” requesting that Australia’s House of Representatives remove broadcast radio caps on sound recording royalties. Currently, Australian radio broadcasters are required to pay artists and labels no more than 1% of the station’s gross annual revenue.

EU AI Act Passes Parliament: On June 14, the European Union Parliament passed a draft of the EU AI Act, which is now in the “trilogue” stage of the EU regulatory process where the draft will be negotiated and finalized between the Parliament, Council, and Commission. A deal may be reached by November 2023, but the Act must be finalized by January 2024 if it is to come into force before next year’s E.U. election. The current draft maintains a tiered approach of obligations for AI companies based on the risk-level of the AI machine and requires generative AI companies to disclose training data comprising of copyrighted works.

EUIPO Issues Report on EU Citizens Attitudes Toward IP and Piracy: The European Union Intellectual Property Office (EUIPO) released its report titled European Citizens and Intellectual Property: Perception, Awareness, and Behaviour-2023. The report found that 93% of participants believed that it was important for inventors, publishers, creators, and performing artists to be able to protect their rights and be paid for their work, and that the majority disagreed with the various reasons behind obtaining digital content from illegal sources including that “it is OK if only for personal use (65% disagree or tend to disagree with this), if the price of the content is too high (72%), or if the content is not available via a legal source (74%). A minority (14%) admitted to having intentionally used illegal sources for online content, but in the younger age group (15-24), the intentional use of illegal sources soared to more than twice that rate at 33%.

Italian and German Authorities Shuts Down Pirate IPTV Service and Seizes Assets of Over 620,000 Euros: Italian and German authorities acted on a decree issued by the Public Prosecutor at the Court of Milan and shut down 60 Telegram channels and a website used to sell illicit IPTV subscriptions while also seizing assets worth over 620,000 euros. The individuals suspected of operating the piracy network involved 12 Italian nationals and an Albanian national living across Italy and Germany.

Industry Activities

Authors Guild Introduces Model Contract Language Related to AI-Generation of Literary Works: On June 1, the Authors Guild introduced four new model clauses related to AI in the Guild’s Model Trade Book Contract and Model Literary Translation Contract. The new clauses stipulate that an author’s written consent is needed for their publisher to use AI-generated book translations, audiobook narration, or cover art. The guild also noted that later this summer, it will be publishing AI guidelines for authors and publishers regarding identifying and addressing AI-generated literary works. Further, the Guild states, “The purpose of these demands is to prevent the use of AI to replace human creators. The Authors Guild strongly believes that human writing, narration, and translation are vastly superior to their AI mimics. Moreover, as an ethical matter, the Authors Guild opposes relying on these tools to replace human creators, in part because current AI content generators have largely been trained on pre-existing works without consent. The Guild stands in solidarity with human creators in other industries, who like authors, face professional threats from AI-generated content flooding the markets for their work.”

Adobe Announces Copyright Liability Reimbursement Policy: In early June,Adobe announced that it will reimburse enterprise users of its AI technology, Firefly, against copyright lawsuits. According to Claude Alexandre, Adobe’s VP of Digital Media, Adobe will provide “full indemnification for the content created through [our AI software].” Alexandre further noted that “Adobe has actually offered indemnification for quite some time against the use of its own products, and in particular for stock [images],” and the new AI software offer is an extension of the practice. 

ASCAP Releases AI Principles and Initiatives: On June 13, the American Society of Composers, Authors and Publishers (ASCAP) announced several AI initiatives by the performing rights organization, including a set of principles, creator education, panels, a startup incubation, and policy development related to AI development and use. ASCAP’s AI principles focus on (1) Prioritizing rights and compensation for human creativity; (2) Transparency in identifying AI vs. human-generated works and retaining metadata; (3) Requiring consent to authorize works for inclusion in an AI training license; (4) Promoting a Free market with a willing buyer, willing seller licensing framework; (5) Crediting when creators’ works are utilized to produce new AI-generated music; and (6) Ensuring an even playing field that values intellectual property globally.

Audiovisual Anti-Piracy Alliance Publishes Report on App Piracy: June 19, the Audiovisual Anti-Piracy Alliance published a report titled A Look At The Problem, Challenges, and Effects of App Piracy, which categorized illicit apps into four categories: IPTV generic media players, custom-branded IPTV, live streaming sports, and movies and series streaming. The report also examines how pirates generate revenue by charging for these illicit apps, while exploiting and selling user data and launching ad word campaigns.

DCA Releases New Report on Link Between Subscribing to Pirate Sites and Incidence of Credit Card Theft: On June 21, the Digital Citizens Alliance (DCA) issued a report titled Giving Piracy Operators Credit: How Signing up for Piracy Subscription Services Rachets up the Risk of Credit Card Theft and Other Harms. According to the report, and based on a sample of 2.030 Americans, 72% of Americans who subscribe to pirate media sites experience incidences of credit card fraud compared to an 18% occurrence of credit card fraud among those who do not subscribe to pirate sites. Further, one in three of those surveyed noted they watched pirated content during the last year; and one in 10 reported subscribing to a pirate streaming service. As the DCA report notes, “piracy was once primarily a headache for content creators, [and] users of these sites now face significant risks.” Piracy subscription services make an estimated $1 billion a year providing services to at least nine million U.S. households.”

Look Forward To And Save the Date For…

Deadline to Submit Comments to USCO on Interim Rule for Registrations of Secure Tests: July 3 is the deadline to submit comments to the U.S. Copyright Office’s interim rule regarding registrations of secure tests, continuing the emergency adoption during the COVID-19 pandemic of otherwise eligible tests that were administered online during the national emergency to qualify as secure tests. The Office is requesting comments on whether the interim rule should be made permanent and whether it should restrict examinations of secure test claims to virtual examinations. More information is available on the Copyright Office’s Secure Tests Rulemaking webpage.

Deadline to Submit Written Petitions for Ninth Triennial Rulemaking to USCO: July 7 is the deadline to submit written petitions to the U.S. Copyright Office in response to its notification of inquiry and request for petitions for its ninth triennial rulemaking proceeding under the Digital Millennium Copyright Act (DMCA) to consider possible temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. Petitions for new exemptions and renewal petitions regarding existing exemptions will be considered in the rulemaking process, which includes three rounds of written comments, followed by public hearings that the Office intends to conduct virtually. Written comments in response to any petitions for renewal must be received by August 11. Written petitions for new exemptions must be received by August 11.

USCO AI Webinar on International Perspectives on AI and Copyright: On July 26^th from 11 a.m. to 1 p.m. ET, the U.S. Copyright Office will host a webinar on International Perspectives on AI and Copyright Law on July 26 at 11 a.m. ET. During the event, experts will discuss how other countries are approaching copyright questions such as authorship, training, exceptions and limitations, and infringement. The event will also focus on possible areas of “convergence and divergence” involving generative AI, and provide an overview of legislative developments in other regions. Panelists include Jane Ginsburg, Columbia Law School; Andres Guadamuz, University of Sussex; Bernt Hugenholtz, University of Amsterdam; Matthew Sag, Emory University School of Law; Luca Schirru, KU Leuven; Marcus von Welser, Vossius; Raquel Xalabarder Plantada, Universitat Oberta de Catalunya; Shlomit Yanisky-Ravid, Ono Academic College; and Peter Yu, Texas A&M University School of Law. More information is available on the Office’s event page.

USCO Monthly Recordation System Webinar: On July 27 at 1 p.m. ET, the U.S. Copyright Office will host its final monthly webinar designed 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. This session will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” Anyone interested in attending (including members of the public) may join by registering. Additional information can be found on the registration page.

BIPOC Podcast Creators Copyright for Podcasters Webinar: On July 27 at 8 p.m. ET, BIPOC Podcast Creators will present a live one-hour webinar titled Copyright for Podcasters: What Every Podcaster Needs to Know, conducted by Copyright Alliance’s Copyright Counsel Rachel Kim. Registrants will have access to a recording of the webinar following the event. More information is available on the registration page.

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In May, the U.S. Supreme Court finally issued its long-awaited decision in the Andy Warhol Foundation v. Goldsmith case, reining in the transformative use test under the first fair use factor. Meanwhile, Congress held hearings on Artificial Intelligence (AI), exploring the implications of AI on copyright law.

Here is a quick snapshot of the copyright-related activities that occurred during the month of May 2023 as well as a few events to look forward to in June.

Copyright Alliance Activities

Copyright Alliance Releases Guide on Service of Process in CCB Cases: To assist claimants using the Copyright Claims Board (CCB) in better understanding serving process in CCB cases, we published a one-page document that provides important information about service, such as who can serve a respondent, how they must be served, the correct forms to use, and much more. For additional information on the CCB beyond serving process details, please visit our CCB Explained webpage.

Copyright Alliance Files Amicus Brief in Stream-Ripping Case: On May 11, the Copyright Alliance filed an amicus brief in support of the Recording Industry Association of America (RIAA) in Yout LLC v. RIAA. The Copyright Alliance brief describes how section 1201 was enacted in the early days of the internet to ensure that copyright owners can distribute their works while being protected against online piracy, and it goes on to detail how 1201 has been successful in encouraging the creation and dissemination of expressive works. Explaining that the district court was right to dismiss Yout’s claims, the brief makes clear that similar fair use and First Amendment-based arguments were recently rejected in another high-profile section 1201 case, Green v. United States Department of Justice. The brief was drafted by Copyright Alliance Legal Advisory Board member Mitchell, Silberberg, and Knupp LLP.

Copyright Alliance Blogs: We published several blogs in May:

• We published a two-part blog series by our CEO, Keith Kupferschmid, on the Warhol case, which articulates why the outcome will have a significant impact on copyright and AI moving forward. Titled 10 Takeaways from the SCOTUS Decision in AWF v. Goldsmith, we published part 1 and part 2. We also published a blog by our VP of Legal Policy and Copyright Counsel, Kevin Madigan, that summarized the case, titled Landmark Warhol Decision Reins in Transformative Fair Use, as well as a statement that applauded the Court’s decision.
• We published in this blog post, a letter to the House Judiciary Committee’s Intellectual Property Subcommittee written by former General Counsel of the U.S. Copyright Office, Jon Baumgarten, in response to comments made by another former General Counsel of the USCO, Sy Damle. Baumgarten pushes back against and warns of the pitfalls of Damle’s comments that the ingestion of copyrighted works for AI training is excepted under the fair use doctrine.
• For writers and publishers wanting to further understand how copyright law their rights are protected, we published this blog post going over several literary copyright cases. 
• To commemorate Mental Health Awareness Month, we published a blog post highlighting some mental health and financial resources that are available to musicians. We also celebrated the Asian American and Pacific Islander Heritage Month, recognizing in this blog post several creators who are at the forefront of the #StopAAPIHate Movement.

Copyright Office Activities

CCB Status Update: At the end of May 2023, 471 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 171 are “smaller claims.” In at least 148 of all cases, the claimant is using legal counsel. At least 406 of the cases involve infringement claims, 70 involve Section 512(f) misrepresentation claims, and 12 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 (209 cases); Literary Works (70); Motion Picture and Audiovisual Works (97); Sound Recordings (53); Musical Works (33); and some cases include claims for multiple works. Forty-five foreign residents have filed claims. Of all the cases filed, 292 have been dismissed for the following reasons: Due to Respondent’s Opt Out (37); Due to Failure to Amend Noncompliant Claim or for Registration Issues (159); Due to Failure to Provide Proof of Service of Process (61); Claimant Withdrawal and Dismissal of Claims (20); and Settlement (15). There are 45 active proceedings.

USCO Hosts Remaining AI Listening Sessions on Visual Works, Audiovisual Works, and Sound Recordings and Music: On May 2, the U.S. Copyright Office hosted the second session in a series of AI listening sessions pertaining to generative AI and copyright issues, focused on visual works. Speakers addressed transparency issues and tools, the harms of unauthorized AI use of copyrighted works for training purposes, the impact and use of AI for visual artists, and regulatory and Copyright Office involvement in promoting transparency and resolution for training data issues. On May 17, the Office hosted its AI listening session on audiovisual works. During the session, participants expressed a collective need for clear guidelines, attribution standards, and the mitigation of biases in AI-generated content. Concerns about copyright infringement, loss of artistic control, and fair compensation resonated strongly among the speakers. Participants also stressed the need for education, standardization, policy clarity, and a holistic approach that promotes innovation while respecting the interests of artists. On May 31, the Office hosted its last AI listening session on sound recording and music. Register Shira Perlmutter gave opening remarks for the last session, noting that the Office will hold a webinar on the Office’s AI-generated works registration guidance on June 28 and a webinar on international AI perspectives and copyright law on July 26.Recordings and transcripts are available on the Office’s AI Listening Session webpage.

USCO Issues NPRM on Agreement-Based Counterclaims: On May 3, the U.S. Copyright Office issued a notice of proposed rulemaking (NPRM) regarding an amendment to the regulations to address the filing of agreement-based counterclaims and related discovery requirements in cases before the Copyright Claims Board (CCB). The NPRM proposes amendments related to asserting and responding to agreement-based counterclaims as well as standard interrogatories and standard requests for the production of documents for such counterclaims. Written comments are due by June 20.

CRB Announces Increased Phonorecords III Royalty Rates for Musical Works: On May 23, the Copyright Royalty Board (CRB) issued a determination over Phonorecords III, which increased royalties for songwriters’ and music publishers’ royalty rates for 2018-2022 from 11.4 to 15.1 percent of service revenue. However, the determination also removed a publishing rate ceiling mechanism where publishers would receive higher payments when their label counterparts negotiated higher rates for master recordings.

Biden Administration Activities

Biden Administration Nominates Deborah Robinson as Next IPEC: On May 8, the Biden Administration announced the nomination of Deborah Robinson for the position of the Intellectual Property Enforcement Coordinator (IPEC). Robinson was formerly the head of IP enforcement at Paramount Global implementing various anti-piracy protocols. She has also held positions at the Recording Industry Association of America and the City of Philadelphia as an Assistant District Attorney. Copyright Alliance CEO Keith Kupferschmid joined numerous other industry organizations in releasing a statement in support of Robinson’s nomination, noting, “Deborah Robinson is an accomplished attorney, experienced IP content and protection specialist, and former prosecutor who has real world experience. We are confident that, upon Senate confirmation of her nomination, she will do a tremendous job in this very important role as she works to further IP protections across the country.”

Congressional Copyright Related Activities

HJC IP Subcommittee Members Send Letter to USCO Expressing Concerns About AI: On May 1, members of the House Judiciary Committee (HJC) IP Subcommittee—including Chairman Darrell Issa (R-CA), Representatives Scott Fitzgerald (R-WI), Ben Cline (R-VA), and Nathaniel Moran (R-TX)—sent a letter to Register Shira Perlmutter of the U.S. Copyright Office, expressing their concerns over AI use of copyrighted works and requesting that the Office provide further information on their thoughts, views, and activities on copyright and AI issues. On May 12, the USCO sent a response letter, noting that while the Office is not engaged in copyright enforcement activities beyond providing support for courts and the Department of Justice in enforcement cases, it has nonetheless engaged and will continue to engage with creators, copyright owners, and AI developers in studying AI and copyright law issues, including hosting its listening sessions and webinars on AI issues and issuing a notice of inquiry later this year.

HJC IP Subcommittee Holds Hearing on AI and Copyright: On May 17, the House Judiciary IP Subcommittee held a hearing titled Artificial Intelligence and Intellectual Property: Part I—Interoperability of AI and Copyright Law. Witnesses included Sy Damle, Latham & Watkins LLP; Chris Callison-Burch, Associate Professor of Computer and Information Science, University of Pennsylvania; Ashley Irwin, President, Society of Composers and Lyricists; Dan Navarro, Grammy-nominated songwriter, singer, recording artist, and voice actor; and Jeffrey Sedlik, President & CEO, PLUS Coalition, past President of American Photographic Artists (APA) and advocacy lead for APA in copyright matters, photographer, and forensic analyst. Lawmakers and witnesses discussed a myriad of pressing topics at the intersection of AI and copyright law, including the use of copyright-protected works in the training of generative AI models, copyright protection of works that were produced with the assistance of generative AI, and the economic impact of generative AI on creators and creative industries. Speaking about ingestion, Damle and Callison-Burch both took the questionable (at best) view that copying of copyrighted works by AI systems for ingestion purposes is categorically allowed by the fair use exception. Meanwhile, the creators on the panel raised significant and justifiable concerns that generative AI systems are being trained using troves of rights holders’ works without their consent, credit, or compensation. Another issue that witnesses and members grappled with was whether the output of AI systems could be eligible for copyright protection. Finally, there seemed to be a consensus among panelists and members on the Subcommittee that transparency will be a key component to the responsible implementation of AI into our society. Chairman Darrell Issa (R-CA) suggested that Congress could mandate AI developers to make their database of inputs searchable so rights holders could easily determine whether their works were used to train AI systems. The Copyright Alliance initiated a statement regarding the hearing. A recording of the hearing is available as is a transcript of the hearing.

Former USCO GC Jon Baumgarten Sends Letter to Congress on AI and Fair Use: On May 22, Jon Baumgarten, former General Counsel (GC) of the U.S. Copyright Office, sent a letter to the House Judiciary IP Subcommittee Members in response to comments about Artificial Intelligence (AI) and fair use made by Sy Damle, also a former GC of the Copyright Office, during the Subcommittee’s May 17 hearing on AI and copyright law. In the letter, Baumgarten pushes back on categorical fair use arguments made by Damle, noting that similar arguments had been made for cases involving photocopying and reprography. 

Senate Privacy, Technology, and Law Subcommittee Holds Hearing on AI Technology and Privacy: On May 16, the Senate Judiciary Subcommittee on Privacy, Technology, and Law held a hearing titled Oversight of A.I.: Rules for Artificial Intelligence. Witnesses included Samuel Altman, CEO, OpenAI; Christina Montgomery, Chief Privacy & Trust Officer, IBM; and Gary Marcus, Professor Emeritus, New York University. The hearing encompassed a wide range of concerns related to AI, including privacy, job disruption, copyright, licensing of AI products, and the impact of Section 230. The focus was on identifying the regulatory measures needed to address these concerns and ensure the responsible development and deployment of AI technologies. There was bipartisan agreement among Senators and witnesses about the significant risks posed by AI and the need for government regulation. However, there were differing opinions on the specific form and nature of such regulation. Senator Chris Coons (D-DE) confirmed there will be hearings in the Senate IP subcommittee on AI and copyright this summer. Senators Marsha Blackburn (R-TN) and Amy Klobuchar (D-MN) emphasized the importance of compensating creators and copyright owners for the use of their works to train AI. Senator Blackburn specifically suggested SoundExchange’s model. Altman informed members that OpenAI is actively developing a copyright system designed to provide compensation to artists whose work has been utilized in the creation of new content. He also said that content creators should have a say in how their voices, likenesses, and copyrighted content are used to train AI models, stating that “creators should deserve control over how their creations are used” and that OpenAI is working with artists and creators on licensing.

Senate Rules Committee Holds LOC Oversight Hearing: On May 10, the Senate Rules and Administration Committee held a hearing titled, Oversight of the Library of Congress. The sole witness for the hearing was Librarian of Congress Dr. Carla Hayden. Overall, the hearing focused on the modernization efforts of the Library of Congress (LOC) as well as the U.S. Copyright Office’s approach to artificial intelligence (AI) generated works. Senators who participated in the hearing included Chairwoman Amy Klobuchar (D-MN), Ranking Member Deb Fischer (R-NE), Senator Peter Welch (D-VT), and Senator Bill Hagerty (R-TN). 

Copyright in the Courts

U.S. Supreme Court Rules for Goldsmith, 7-2, in Warhol v. Goldsmith Fair Use Case: On May 18, the U.S. Supreme Court issued its opinion in the case Andy Warhol Foundation (AWF) v. Goldsmith, ruling in favor of Goldsmith in a 7-2 decision, and holding that AWF’s use of Goldsmith’s photograph of the famous musician, Prince, for a silk-screen artwork that was commercially licensed was not a transformative use and did not weigh the first fair use factor in favor of AWF. Justice Sotomayor penned the majority opinion with Justices Gorsuch and Jackson concurring and Justice Kagan and Chief Justice Roberts dissenting. The Court noted that Warhol’s silk screen artwork of Prince did not have a “fundamentally different and new” artistic purpose from Goldsmith’s photo as a work of visual art. The Court also made clear that all four fair use factors must be analyzed and considered and that transformative use determinations do not control the fair use analysis. The Court further stated that, even under the first fair use factor, such elements must be balanced with the commercial nature of the use. The majority also noted the importance of an objective versus a subjective standard when determining the difference in purpose and character of the use and explained that its decision is consistent with longstanding principles of fair use and [that it] will not “snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers” as some have claimed.” On the other hand, Kagan—in the dissenting opinion—engaged in a subjective analysis, giving more credence to Warhol’s impact and influence in the art world. The Copyright Alliance initiated a statement of support for the U.S. Supreme Court’s decision in the Andy Warhol Foundation v. Goldsmith case. In the statement, Copyright Alliance CEO Keith Kupferschmid noted, “The Court’s decision reins in renegade lower courts that over the years have expanded the transformative use doctrine to make it the most influential element of the fair use test. By determining that Warhol’s prints were non-transformative as a matter of law because they did not have a ‘fundamentally different and new’ artistic purpose from Goldsmith’s photo as a work of visual art, the Court made it clear that all four fair use factors must be analyzed and considered, and that transformative use determinations do not control the fair use analysis.”

Stability AI Files Motion to Dismiss in Getty Images Case: On May 2, Stability AI filed a motion to dismiss in Getty Images v. Stability AI—the case brought by Getty in the Northern District of Delaware alleging that Stability willfully infringed Getty’s copyrights, removed or altered copyright management information (CMI), provided false CMI, and infringed Getty’s trademarks. Stability AI is the creator of the AI system Stable Diffusion, and the lawsuit alleges that Stability AI “copied at least 12 million copyrighted images from Getty Images’ websites, along with associated text and metadata, in order to train its Stable Diffusion model.” In its motion, Stability argued that the court lacks personal jurisdiction over Stability UK; Stability UK is a necessary and indispensable party; and by “lumping [together] allegations” against Stability U.S. and Stability UK under the collective designation “Stability AI,” the complaint fails to identify which defendant is responsible for the alleged infringing acts and therefore fails to state a claim. In the alternative, Stability moves to transfer the case to the Northern District of California under 28 U.S.C. § 1631 or § 1404(a).”

Court Denies Class Certification in Schneider’s Lawsuit Against YouTube: On May 22, the district court for the Northern District of California denied the class certification in composer and musician Maria Schneider’s lawsuit against YouTube. The class action case was brought against YouTube in 2020, with Schneider and others alleging that YouTube facilitates infringement by not enforcing a repeat infringer policy and not offering smaller or individual copyright owners the same opportunity to remove infringing works through its anti-piracy tools as it does for larger content creators. In denying the class certification, the court reasoned that an individual creator’s claim would need to be individually assessed to identify if the content was actually covered by any YouTube licenses, stating, “Every copyright claim turns upon facts which are particular to that single claim of infringement [and] every copyright claim is also subject to defenses that require their own individualized inquiries.”

Ed Sheeran Prevails in Copyright Infringement Case: On May 4, a jury in the Southern District of New York found that British singer-songwriter, Ed Sheeran, is not liable for copyright infringement for his song “Thinking Out Loud.” The heirs of Ed Townsend, the co-writer for Marvin Gaye’s hit song, “Let’s Get It On,” filed the lawsuit against Sheeran in 2017, alleging that there were “striking similarities” and “overt common elements” between Gaye’s record and Sheeran’s song.  

Spinrilla to Pay RIAA $50 Million In Settlement: On May 3, the district court for the Northern District of Georgia approved a settlement between a hip-hop mixtape site, Spinrilla, and the Recording Industry Association of America (RIAA), which includes Spinrilla paying RIAA $50 million, a prohibition against Spinrilla and its founder from offering the service, and a shut-down of the Spinrilla site and apps within five days. The court ruled in December 2020 that Spinrilla was liable for copyright infringement of more than four thousand sound recordings.

Fair Use Defense Rejected in Long-Running Richard Prince Case: On May 11, a Judge in the Southern District of New York issued an opinion and order denying appropriation artist Richard Prince’s and co-defendant art galleries’ motions for summary judgment in a case brought in 2015 by photographer Donald Graham for unauthorized use of his photograph as a part of a Prince exhibition. Analyzing the first fair use factor, the opinion finds that Prince’s use of the photograph was not transformative as a matter of law and was indisputably commercial in nature. Importantly, the court explained that “neither the Supreme Court’s decision in Google nor the Second Circuit’s decision in Warhol alter the [transformative] analysis here.” While the opinion goes on to find the second and third fair use factors weigh against a finding of fair use, it then says that the fourth factor weighs “slightly” in favor of the defendants because “the primary markets for the original and secondary works do not overlap.” The opinion concludes by explaining that Prince tests the boundaries between appropriation art and copyright infringement, and that the opinion “is this Court’s attempt to elucidate that boundary.” Graham was represented by Copyright Alliance’s Legal Advisory Board member Cravath, Swaine and Moore LLP.

Copyright in Other Countries

EU Releases Recommendations for Piracy of Live Events: The European Commission published recommendations for service providers with regard to piracy of live content. The non-binding document highlights the importance of swift action by service providers to address illegal live streaming upon receipt of such activities, the existence of dynamic website blocking injunctions and the legal validity of such measures in the EU, and the importance of broadcasters and organizers of events increasing the attractiveness and affordability of their live offerings.

EU Releases Report on IP Rights in Third Countries: On May 17, the European Commission published its biennial report titled Report on the Protection and Enforcement of Intellectual Property Rights (IPR) in third countries, which includes China as a top priority country while India and Turkey remain priority two countries. Executive Vice President and Commissioner for Trade Valdis Dombrovskis said, “A robust intellectual property system supports innovation and is a key driver of the EU’s competitiveness and the protection of our strategic interests. When intellectual property systems across the world fall short, it harms European businesses. Counterfeiting and piracy hurt our economy and can expose our citizens to unsafe products.”

G7 Commits to ‘Human-Centric and Trustworthy’ AI: On April 30, the Group of Seven (G7) nations—which includes Japan, United States, France, Germany, Italy, Canada, the EU, and the United Kingdom—published a Ministerial Declaration of its Tech Ministers’ Meeting, in which the G7 commits to promoting “human-centric and trustworthy AI” and states its opposition to the misuse and abuse of AI, including uses that threaten the enjoyment of human rights. The Declaration also states that the G7 will continue to examine and discuss generative AI topics that could include the topic of “how to safeguard intellectual property rights including copyright…”On May 20, the White House published the G7 Hiroshima Leaders’ Communiqué, detailing various issues and points that the group committed to further cooperation and study on, including “advanc[ing] international discussions on inclusive artificial intelligence (AI) governance and interoperability to achieve our common vision and goal of trustworthy AI, in line with our shared democratic values.” Specifically for intellectual property, the group called for the creation of a forum or a working group called the “Hiroshima AI process” that would cooperate with the OECD and GPAI to discuss generative AI topics including the “safeguard[ing] of intellectual property rights including copyrights…” According to a summarization of a working lunch, the group is expected to report on these discussions by the end of the year.

Industry Activities

ALI Approves Latest Copyright Restatement Draft: On May 22, the American Law Institute (ALI) held its Annual Meeting in Washington, DC, during which all sections of the most recent draft of the Copyright Restatement were approved pending a few minor revisions. Tentative Draft No. 4 of the Restatement includes sections on copyright formalities, duration, infringement, and the Visual Artists Rights Act (VARA). The sections of the draft are now considered final, will be made available on Westlaw, and can be used by the courts and others immediately.

OpenAI CEO Shares Plans for ‘Respecting Copyright’: On Friday, May 5, OpenAI CEO, Sam Altman, announced that the company is working on new ChatGPT models that respect copyright and ensure creators are paid for the value they create. According to Altman, “We’re trying to work on new models where if an AI system is using [a creator’s] content, or if it’s using [someone’s] style, [they will] get paid for that.” His comments came after an announcement that Altman will be hosting an “OpenAI Tour” in 2023 to meet and hear from users, developers, and those interested in AI generally. During the tour, Altman will visit Washington, DC, and several other cities. To apply to attend the DC meeting, please email oai23tour@openai.com.

ACE Creates Global Task Force to Combat Illegal Sports Streaming: The Alliance for Creativity and Entertainment (ACE) announced that it will run a global task force to combat illegal sports streaming, teaming up with broadcasters and law enforcement including DASN, beIN SPORTS, Interpol, and Europol. Jan van Voorn, Executive Vice President and Head of ACE stated, “The addition of DAZN and the creation of ACE Sports Piracy Task Force marks a turning point for ACE and confirms yet again that we are the essential partner to anyone who recognizes the threat of piracy to their business.”

Look Forward To And Save the Date For…

WIPO U.S. Summer School on Intellectual Property: From June 5 to 16, the Center for Intellectual Property x Innovation Policy (C-IP2) at George Mason University Antonin Scalia Law School is partnering with the World Intellectual Property Organization (WIPO) to host the sixth iteration of the WIPO U.S. Summer School on Intellectual Property. This two-week summer course will be held online-only to accommodate participants from all over the world, providing an opportunity for students “to acquire a deeper knowledge of each domain of IP and of the role and functions of WIPO.” The program consists of lectures, case studies, simulation exercises, and group discussions on selected IP topics. A certificate of participation is awarded to participants who successfully complete program requirements. More information is available on the registration page.

Deadline for USCO and USPTO to Complete Joint NFT Study: June 8 is the deadline for the U.S. Copyright Office and the U.S. Patent and Trademark Office to issue their study on non-fungible tokens (NFTs) and the impact and application to intellectual property rights. On June 9, 2022, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) had sent a letter to Kathi Vidal, Director of the U.S. Patent and Trademark Office, and Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, requesting the study. More information is available on the Copyright Office’s NFT Study webpage.

ARS Webinar on the DMCA, Infringement and Fair Use: On June 6 at 12 p.m., The Center for Art Law and the Artists Rights Society (ARS) are hosting a webinar titled Digital Millennium Copyright Act: Infringement, Fair Use, and Takedowns, which will feature a discussion on copyright considerations such as infringement and issuing DMCA takedown notices. Specific topics that will be addressed during the event include how to differentiate between infringement and fair use, what permissions or licenses are needed to reproduce an artist’s image or artwork, and the definition of a DMCA takedown. More information is available on the registration page.

Deadline to Submit Comments to NTIA on AI Accountability: June 12 is the deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its request for comments regarding artificial intelligence (AI) system accountability measures and policies to ensure that AI systems are legal, effective, ethical, safe, and trustworthy. NTIA will use these comments and other public engagements on the topic to draft and issue a report on AI accountability policy development, focusing on the AI assurance ecosystem.

A2IM Indie Week 2023: From June 13 to 15, the American Association of Independent Music (A2IM) will host Indie Week 2023, a three-day international conference and networking event aimed at maximizing the global impact of independent music. For the past 15 years, the event has drawn more than 1,200 attendees annually. Attendees will hear experts discuss the industry’s most timely topics, network with colleagues, and much more. More information is available on the registration page.

AIMP Global Music Publishing Summit 2023: On June 13, the Association of Independent Music Publishers (AIMP) is hosting its Global Music Publishing Summit. The summit began in 2017, and its agenda spans creators, the business of publishing music, and the international marketplace “to deliver a well-rounded and informative experience to attendees across all facets of the industry.” More information is available on the registration page.

She Podcasts LIVE 2023: From June 19 to June 22, She Podcasts is hosting its annual She Podcasts LIVE conference to provide women podcasters with the opportunity to “explore innovative ways to grow an audience” and to “discover the secrets of creating powerful connections with sponsors, listeners, and other peers.” On Wednesday, June 21 at 10 a.m. ET, Rachel Kim and Terrica Carrington of the Copyright Alliance will give a presentation on copyright law fundamentals that podcasters should know.

Deadline for USCO CCB Agreement-Based Counterclaims Comments: June 20 is the deadline to submit comments to the U.S. Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding an amendment to the regulations to address the filing of agreement-based counterclaims and related discovery requirements in cases before the Copyright Claims Board (CCB). The NPRM proposes amendments related to asserting and responding to agreement-based counterclaims as well as standard interrogatories and standard requests for the production of documents for such counterclaims.

WIPO Standing Committee on Copyright and Related Rights (41st Session): From June 28 to July 1, the World Intellectual Property Organization (WIPO) will hold the next meeting of the Standing Committee on Copyright and Related Rights (SCCR).

MLC Q&A for Self-Administered Songwriters: On June 29 at 12 p.m., independent songwriters with questions about the Mechanical Licensing Collective (MLC) and digital audio mechanical royalties are invited to attend this interactive webinar to get answers to questions regarding MLC membership, the MLC Portal, and all the tools and resources available to help self-administered songwriters register their musical works data.

USCO Monthly Recordation System Webinar: On June 29 at 1 p.m., The U.S. Copyright Office will hold its next monthly webinar 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 electronically transfer their copyrights to someone else. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.”

USCO Webinar on Registration of AI-Assisted Works: On June 28, the U.S. Copyright Office will hold a webinar where the Office’s registration specialists will walk participants through the registration process for works containing AI-generated elements in accordance with the Office’s registration guidance on the topic. The Office will also field questions from webinar participants. More information will likely become available on the Office’s AI webpage.

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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!

In April, the copyright community celebrated World IP Day by recognizing the importance and legacies of women trailblazers in intellectual property. The U.S. Copyright Office also kicked off its first Artificial Intelligence (AI) listening session on literary works and the Biden Administration published several key copyright-law annual reports. Here is a quick snapshot of the copyright-related activities that occurred during the month of April as well as a few events to look forward to in May.

Copyright Alliance Activities

Copyright Alliance Celebrates World IP Day: From April 24-28, the Copyright Alliance marked World IP Day 2023, which is celebrated yearly on April 26, by initiating a celebratory statement and co-hosting an event on April 26, titled Women Trailblazers Creating Success Through Copyright, which drew more than 190 attendees and featured the following speakers: Karyn A. Temple, former Register of Copyrights and SEVP & Global General Counsel at the Motion Picture Association; Jayda Imanlihen, Founder of the Black Girl Film School; Alicia Calzada, Deputy General Counsel for the National Press Photographers Association; Tristen Norman, Director, Creative Insights, Getty Images; and Miriam Lord, Associate Register of Copyrights and Director of Public Information and Education at the U.S. Copyright Office.

Copyright Alliance Launches AI Webpage: The Copyright Alliance launched an AI and Copyright webpage as a source of information on the responsible development and use of AI technologies as they relate to copyright. The page includes a wealth of information—including blogs and articles, the Copyright Alliance’s policy position paper on AI, U.S. Copyright Office policies and updates, a registration link for our AI Copyright Alert, industry events, information on AI and fair use, and much more.

Copyright Alliance Blogs: We published several blogs in March:

• To celebrate World IP Day 2023, we published a blog post highlighting the impactful IP leadership and legacies of women Registers of Copyrights of the U.S. Copyright Office.
• We also published the second part of our current AI copyright cases blog series. Additionally, we explored in this blog post if the use of copyrighted works to train AI would qualify as fair use and published another blog post exploring how existing fair use case law might apply in the AI context.
• We also published a blog post, emphasizing how respect for copyright is a component of Environmental, Social, Governance (ESG) for businesses.

Copyright Office Activities

CCB Status Update: At the end of April 2023, 436 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 159 are “smaller claims.” In at least 140 of all cases, the claimant is using legal counsel. There are 374 infringement claims, 64 Section 512(f) misrepresentation claims, and 10 claims for declarations of noninfringement. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (200 cases); Literary Works (59); Motion Picture and Audiovisual Works (92); Sound Recordings (43); Musical Works (30); and some cases include claims for multiple works. Thirty-nine foreign residents have filed claims. Of all the cases filed, 262 have been dismissed for the following reasons: Due to Respondent’s Opt Out (33); Due to Failure to Amend Noncompliant Claim (135); Due to Failure to Provide Proof of Service of Process (56); and Claimant Withdrawal and Dismissal of Claims (36). There are 40 active proceedings.

USCO Hosts First AI Listening Session on Literary Works; Announces Speaker List for Visual Works Listening Session: On April 19, the U.S. Copyright Office hosted the first session in a series of AI listening sessions pertaining to generative AI and copyright issues for literary works. The list of speakers included Keith Kupferschmid (Copyright Alliance), Mary Rasenberger (Authors Guild), Chris Mohr (SIAA), Catie Rowland (CCC), Terry Hart (AAP), and Cynthia Arato (News Media Alliance). Register Perlmutter shared opening remarks, stating that the sessions will guide the Office in studying AI issues, and that stakeholders will be able to submit written comments to further inform the Office. Speakers addressed how AI tools are used by creators, the harms or lack thereof regarding AI ingestion of copyrighted works, AI licensing markets, confusion over the Office’s recent AI registration guidance, and the effects of AI on creators of literary works. During his comments, Kupferschmid noted that, “As AI technology continues to evolve and questions arise about how copyright laws apply to the creation of AI-generated works, it’s critical that when the Office makes determinations about AI policies, that the underlying goals and purposes of our copyright system are upheld; and that the rights of creators and copyright owners are respected.”

The U.S. Copyright Office also published the list of speakers for the AI Listening Session on Visual Works. The session will take place today, Tuesday, May 2 from 1 p.m. to 4 p.m. ET and will include two panels and a 25-minute period at the end of the session for additional speakers to weigh in. Speakers include Adobe, National Press Photographers Association, Graphic Artists Guild, Getty Images, Professional Photographers of America, American Society for Collective Rights Licensing, the PLUS Coalition, Stability AI, and Jasper AI.

USCO Replies to Thaler’s Opposition to Its Rejection of AI-Authored Work: On April 5, the Copyright Office filed a reply to Stephen Thaler’s opposition to its motion for summary judgment in a case brought against it for refusing to register a work claimed to be autonomously created by artificial intelligence (AI). The reply reiterates the Office’s position that Thaler’s assertions that the Copyright Act allows for non-human authorship are incorrect and not supported by statutory text. Once again arguing that Thaler misconstrues the work made for hire doctrine, the reply explains that Thaler’s “Creativity Machine” lacks the capacity to enter into a valid contract and cannot plausibly qualify as Thaler’s agent or employee. Going on to refute Thaler’s argument that case law supports non-human authorship, the Office’s reply cites appellate court decisions that have uniformly rejected authorship for things like celestial beings and animals. Addressing policy issues, the Office asserts that Thaler disclaims the importance of economic incentives for human creators. Finally, the Office explains that courts’ deference to the Copyright Office is routine and that its decision is not arbitrary and capricious.

Biden Administration Copyright-Related Activities

IPEC Issues Annual Intellectual Property Report to Congress: On April 4, the Office of the Intellectual Property Enforcement Coordinator (IPEC) issued its Annual Intellectual Property Report to Congress. The joint report provides an overview of the intellectual property enforcement strategy and related efforts undertaken by various departments and agencies during fiscal year 2022. The report also notes copyright-related activities carried out by the Customs and Border Protections (CBP), including a joint video interview conducted with the Copyright Alliance to educate copyright owners on recording copyright registrations with the CBP.

USTR Publishes Special 301 Report: On April 26, the Office of the U.S. Trade Representative (USTR) published its annual Special 301 Report, which is the agency’s annual review of the state of intellectual property (IP) protection and enforcement in U.S. trading partner countries around the world. Countries on the priority watch list include Argentina, Chile, China, India, Indonesia, Russia, and Venezuela.

President Biden Announces Appointments to the President’s Committee on the Arts and Humanities: On April 13, President Biden announced appointments to the President’s Committee on the Arts and the Humanities (PCAH), which advises the President on cultural policy. The list of appointees includes Bruce Cohen, Lady Gaga, Jon Batiste, Constance Carroll, M. Angélica Garcia, Shonda Rimes, Pauline Yu, and others.

Congressional Copyright Related Activities

Affordable College Textbook Acts Introduced in Congress: On March 27, Representative Joe Neguse (D-CO) introduced H.R. 1811 in the House, and Senator Dick Durbin (D-IL) introduced S.978, The Affordable College Textbook Act, to expand the use of open school textbooks and direct the copyright owners of such textbooks or supplemental materials and informational resources thereof to license the copyrighted work to the public under a non-exclusive, royalty-free, perpetual, and irrevocable license to exercise any of the rights under copyright conditioned only on the requirement that attribution be given as directed by the copyright owner.

Copyright in the Courts

AI Developers File Motions to Dismiss Creators’ Class Action Infringement Case: On April 18, Stability AI, DeviantArt, and Midjourney filed separate motions to dismiss a class action lawsuit for copyright infringement brought by a group of artists for copyright infringement and right of publicity violations for the use of the their works in training data sets for the AI image-generating platforms. Stability AI’s motion first moves to dismiss claims brought by two of the named plaintiffs for not having registered any works with the U.S. Copyright Office. It then goes on to argue that the plaintiffs’ direct copyright infringement claim based on output images fails because they do not allege a single act of direct infringement and they do not allege that any Stable Diffusion output is substantially similar to the plaintiffs’ works. The motion also asserts that DMCA claims related to the removal of copyright management information (CMI) fail because the plaintiffs do not identify any works from which CMI was altered or removed. Finally, the motion argues that the plaintiffs’ right-of-publicity and unfair competition claims are expressly preempted by the Copyright Act “because they are simply efforts to recast copyright claims under other legal rubrics.” Midjourney’s motion to dismiss repeats many of the same arguments as Stability’s, adding that the plaintiffs’ complaint doesn’t identify any works that Midjourney allegedly used as training data. The motion also claims that the plaintiffs’ allegation that all AI platforms’ output constitutes infringing derivative works, no matter how dissimilar they appear, “badly misconstrues the law.” DeviantArt’s motion to dismiss takes a different approach, asserting that it cannot be liable for any of the alleged violations because the conduct complained of—specifically the scraping of copyrighted works from the internet for use as AI training material—is conduct by other actors and not DeviantArt. Plaintiffs’ opposition to the motions to dismiss is due June 2.

Federal Circuit Sides with Alleged Infringer in SAS Institute v. World Programming Ltd.: On April 6, the U.S. Court of Appeals for the Federal Circuit issued a decision finding that SAS Institute, Inc.—a multinational software developer—failed to establish copyrightability of its asserted software program elements in a case brought against competitor World Programming Ltd. (WPL) for infringement of SAS System’s input formats, output designs, and keywords. The opinion affirms a district court’s decision in favor of WPL, adopting the lower court’s view that once WPL showed that at least some of the elements of the SAS System were not protectable, it was SAS’s burden to identify the constituent elements that were, and that they failed to do so. Specifically, the opinion finds that SAS failed to “filter out” unprotectable elements using the abstract-filtration test, which resulted in “an improper comparison of unprotectable elements to the accused products.” Further, the opinion finds that the district court acted within its authority in holding a “Copyrightability Hearing” to “assist it in its analysis of the scope of copyright protection.” Judge Pauline Newman wrote a dissenting opinion, finding for SAS on all of the issues. The Copyright Alliance filed an amicus brief in support of SAS, arguing that the district court erred by improperly shifting the burden to the copyright holder to prove that its registered copyright contained protected elements rather than requiring the defendant to prove that those elements were unprotected.

Fifth Circuit Upholds Discovery Rule: On April 13, the Court of Appeals for the Fifth Circuit upheld the circuit’s “discovery rule” approach to copyright infringement in the case Martinelli v. Hearst Newspapers, L.L.C. The case involved a photographer, Antonio Martinelli, whose photographs of an Irish estate were used in web articles published by Hearst Newspapers and its associated websites. The court ruled that the Supreme Court rulings in Petrella v. Metro-Goldwyn-Mayer, Inc. and Rotkiske v. Klemm did not overrule Fifth Circuit case law on applying the discovery rule (that the Copyright Act’s three-year statute of limitations for copyright infringement does not start until after the plaintiff knows or has reason to know of the injury upon which the claim is based).

Copyright in Other Countries

EU Parliament Agrees On Language for EU AI Act: According to reports, the European Parliament passed a draft of the EU AI Act. The draft Act addresses generative AI models introducing additional responsibilities for such AI to disclose information about the use of copyrighted material in their systems. In the next stage of the process, the trilogue, EU lawmakers and members states will continue to negotiate over the final details of the bill.

German Court Orders Website Hosting Provider to Take Stream-Ripping Tool Offline: On April 3, a German court in Hamburg ruled in favor of a group of record label companies in their case against website hosting provider, Uberspace, which hosted the stream-ripping tool, youtube-dl. According to a press release, the court ordered Uberspace to take youtube-dl’s website offline.

Taiwanese Court Sentences Pirate Website Operators to 18 Months in Prison: On April 11, the Alliance for Creativity and Entertainment (ACE) announced that the district court in Taiwan sentenced the two operators of the notorious 8maple network of piracy sites to 18 months in prison in addition to confiscating $1.97 million in illicit gains. The operators reportedly maintained 25 servers in five different countries and one of its main domains drew in more than 30 million visits per month and generated over $133,000 per month in advertising revenue.

French Appeals Court Holds for Nintendo in Case Against Share-hosting Website Operator: According to reports, the Paris Court of Appeals sided with Nintendo in its lawsuit against share-hosting website operator, Dstorage, for refusing to remove or withdraw access to authorized copies of Nintendo’s games on the website, 1fichier. The court awarded Nintendo approximately $485,000 USD in addition to legal fees.

Industry Activities

NMPA Urges Closer Examination of AI Impact on Rightsholders: National Music Publishers Association (NMPA) President and CEO, David Israelite, wrote a letter to Senator Chuck Schumer (D-NY), urging the Senator to “consider the impact of AI technologies on the creative industries in the U.S.” Israelite also stressed the importance of AI companies needing to “seek permission and licenses from copyright owners” for the ingestion of copyrighted works for AI training, noting that “rightsholders must also retain exclusive control over how and with what technologies their works are used.”

Look Forward To And Save the Date For…

USCO AI Listening Sessions: The U.S. Copyright Office announced its new Artificial Intelligence (AI) Initiative, which includes hosting a series of virtual public listening sessions on Copyright and Artificial Intelligence (AI) with stakeholders from various creative industries. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. The session on Visual Works takes place today, May 2, from 1:00- 4:00 p.m. ET. The session on Audiovisual Works will take place on May 17, from 1:00-4:00 p.m. ET and the session on Music and Sound Recordings will take place on May, 31, from 1:00-4:00 p.m. ET. The deadline for speakers for the Music and Sound Recordings session is May 10.  More information about the sessions and registration options is available on the Office’s Listening Sessions webpage.

Deadline to Submit Reply Comments to USCO on MMA Late Fees NOI: May 9 is the deadline by which to submit reply comments to the U.S. Copyright Office in response to its notice of inquiry regarding when fees for late royalty payments should be assessed in connection with reporting by digital music providers under the Music Modernization Act’s (MMA) blanket license.

Copyright Society Hosts Copyright Claims Board State of the Union: On May 23, the Copyright Society will host a Copyright Claims Board State of the Union with Monica McCabe, CCB Copyright Claims Officer at the U.S. Copyright Office. During the event, McCabe will provide an update on the CCB, its cases, and its progress during the past nine months following its launch. More information is available on the registration page.

USCO Recordation System Webinar: On May 25 at 1:00 p.m. ET, the U.S. Copyright Office will host its monthly webinar 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 webinar will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” More information is available on the registration page.

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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!

In March, while the copyright community continues to wait for the Supreme Court decision in AWF v. Goldsmith, it took a respite to celebrate a major legal victory by book publishers in their court case against the Internet Archive’s mass reproduction and pirating of eBooks. Meanwhile, there were several copyright related hearings in Congress and a revised version of the Pro Codes Act introduced in both the Senate and House. Here is a quick snapshot of the copyright-related activities that occurred during the month of March as well as a few events to look forward to in April.

Copyright Alliance Activities

Copyright Alliance Launches AI Alert: We launched our new Artificial Intelligence (AI) Copyright Alert to keep everyone apprised of important copyright-related AI news and events. As AI technology continues to evolve and questions arise about how copyright laws apply to the creation of AI-generated works, it’s critical that the underlying goals and purposes of our copyright system are upheld and that the rights of creators and copyright owners are respected. To receive the AI Alert visit our sign-up page. 

Copyright Alliance Launches the Community Partnership Initiative, Debuts with BIPOC Podcast Creators as Inaugural Partner: On March 29, we launched our Community Partnership initiative, which is designed to bring together like-minded, creator-based organizations as partners to advance the interests of creators and their works, while also promoting the importance of copyright protection and enforcement. The first Community Partner to join this program is BIPOC Podcast Creators. BIPOC Podcast Creators is a networking and consulting organization that works to create a vibrant and supportive community for BIPOC podcasters.

Copyright Alliance Publishes CCB Remedies Video: We released the newest educational video in the Copyright Alliance’s Copyright Claims Board (CCB) Webinar series which explains the different remedies that the CCB can grant to parties—including the differences between actual and statutory damages, the monetary limits on damages that can be awarded by the CCB, and more.

Copyright Alliance Blogs: We published several blogs in March:

• To celebrate Women’s History Month 2023, we published a blog post highlighting several women creators who use their platform and their successes in the creative industries to uplift other women and other underrepresented communities.
• Following the U.S. Copyright Office’s release of registration guidelines for applicants seeking to register AI-assisted works, we published this blog post highlighting some takeaways to consider.
• We also published a blog post, summarizing current AI copyright cases related to the unauthorized use of copyrighted material as training data.

Copyright Office Activities

CCB Status Update: At the end of March 2023, 401 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 147 are “smaller claims.” In at least 135 of all cases, the claimant is using legal counsel. At least 350 of the cases involve infringement claims, 57 involve Section 512(f) misrepresentation claims, and nine 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 (186 cases); Literary Works (53); Motion Picture and Audiovisual Works (88); Sound Recordings (40); Musical Works (24); and some cases include claims for multiple works. Thirty-seven foreign residents have filed claims. Of all the cases filed, 222 have been dismissed for the following reasons: Due to Respondent’s Opt Out (28); Due to Failure to Amend Noncompliant Claim (112); Due to Failure to Provide Proof of Service of Process (52); and Claimant Withdrawal and Dismissal of Claims (31). There are 33 active proceedings.

USCO Releases Guide to Registration Policies for Works Containing AI Generated Materials: On March 16, the U.S. Copyright Office published a guide, clarifying its policies for examining and registering works that contain material generated by the use of artificial intelligence (AI) technology. In the case of works containing AI-generated works, the Office noted that “applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.” The Office noted that it will refuse to register works that lack human authorship, and that when determining which parts of a work registration will be extended to, “what matters is the extent to which the human had creative control over the work’s expression and “actually formed” the traditional elements of authorship.”

USCO Announces AI Initiative; Solicits Participants for Public Listening Sessions: On March 16, the Office announced its new Artificial Intelligence (AI) Initiative, which includes hosting four virtual public listening sessions on copyright and artificial intelligence (AI) with stakeholders from various creative industries. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. The sessions will focus on literary works, including print journalism and software; visual arts; audiovisual works; and music and sound recordings.

USCO Hosts CPMC Meeting: On March 2, the U.S. Copyright Office held its biannual meeting of the Copyright Public Modernization Committee (CPMC), which was launched in 2021 to enhance communication and provide a public forum for the technology-related aspects of the Copyright Office’s modernization initiative. During opening remarks, Register Perlmutter gave an overview of the Office’s current priorities, including identifying and reaching out to underrepresented communities, the Office’s upcoming fee study, continuing progress on development of the Enterprise Copyright System (ECS), and issues related to copyright and artificial intelligence (AI). It was also mentioned that the Public Information Office is working to train staff to enhance the ways they assist the public. The bulk of the meeting was comprised of copyright registration staff giving a demonstration of the ECS Registration module, which CPMC members agreed reflected significant progress. The demonstration included both the user side and the examiner side of ECS. This was the first time anyone other than Office and Library personnel was able to see a demonstration of ECS. Office staff indicated that there will be an opportunity for user testing. Office staff also indicated that they may hold an additional meeting to continue the discussion and answer more questions in advance of the next regularly scheduled meeting.

Emily Chapuis Appointed USCO Deputy General Counsel: On March 6, Register of Copyrights Shira Perlmutter announced the appointment of Emily Chapuis as Deputy General Counsel for the U.S. Copyright Office. Chapuis begins her new role on March 13 and will assist the Office’s General Counsel and Associate Register of Copyrights “in providing legal guidance to the Office’s divisions, implementing regulations governing the administration of the copyright system, advising congressional offices and other federal agencies, and developing legal positions in copyright litigation and other matters.” Chapuis spent twelve years at Jenner & Block LLP before joining the Office, working as a commercial litigator and a partner in the firm’s Content, Media, and Entertainment group. During her time at Jenner & Block, she “developed extensive expertise in copyright law, including music licensing, rate-setting, and copyright infringement matters.”

USCO Appoints Iyauta Green as Deputy Director of Operations: On March 15, Register of Copyrights Shira Perlmutter announced the appointment of Iyauta Green as Deputy Director of Operations for the U.S. Copyright Office. Green will assist the Assistant Register and Director of Operations with strategic planning, financial activities, and business processes for the Copyright Office. Prior to joining the Office, Green served as the associate deputy assistant secretary for risk management and regulatory affairs in the Office of Housing at the U.S. Department of Housing and Urban Development (HUD) and spent seventeen years at the U.S. Department of Education in the Office of the Secretary, the Office of the Deputy Secretary, and the Office of Finance and Operations.

Kashtanova Sends USCO a Letter Arguing AI-Generated Work Contains Sufficient Human Authorship: On March 21, Kristina Kashtanova posted a letter on LinkedIn that they sent to the Office, explaining that the image in the registration application, Rose Enigma, though generated using Stable Diffusion, resulted from Kashtanova’s highly specific and controlled creative inputs, including a hand-drawn image. This registration application is for a different work, and is separate from the registration the Office granted for the creative coordination, selection, and arrangement contained in Kashtanova’s graphic novel, Zarya of the Dawn. Kashtanova further states that if someone with access to the same tools used the exact same prompts and other input materials, they would be able to generate the same image, arguing that this proves sufficient human authorship.

Biden Administration Activities

USPTO Releases Third Report on IP and the U.S. Economy: The U.S. Patent and Trademark Office (USPTO) released the latest edition of its report highlighting the economic contributions of industries that make greater use of intellectual property (IP) protection, including patents, trademarks, and copyrights, titled Intellectual property and the U.S. economy: Third edition. In terms of copyright, the report showed that copyright-intensive industries outpaced other IP-intensive industries with respect to GDP growth since 2014—rising by 4.2%. Employment in the copyright-intensive industries also reportedly grew rapidly, accounting for 6.6 million jobs.

USTR Releases President Biden’s 2023 Trade Policy Agenda and 2022 Annual Report: On March 1, the Office of the United States Trade Representative (USTR) released President Biden’s 2023 Trade Policy Agenda and 2022 Annual Report to Congress. The report details USTR’s work to advance President Biden’s trade agenda over the last two years, as well as the priorities for 2023 and beyond. “USTR’s worker-centered trade agenda is realizing President Biden’s vision to grow the American economy from the bottom up and the middle out,” Ambassador Katherine Tai said. The report’s section on intellectual property noted the USTR’s involvement in negotiations at the World Trade Organization over IP waivers for the COVID vaccine and noted that the Office identified challenges abroad related to copyright piracy. T

Congressional Copyright Related Activities

Pro Codes Act Introduced in Congress: On March 16, Senators Chris Coons (D-DE), John Cornyn (R-TX), Thom Tillis (R-NC), and Sheldon Whitehouse (D-RI) introduced S. 835, the Pro Codes Act, which clarifies that model codes and standards do not lose copyright protection by virtue of having been adopted or incorporated by reference into law or regulation, provided that the codes/standards are accessible to the public. On March 17, Representatives Darrell Issa (R-CA) and Deborah Ross (D-NC) introduced the House version of the bill, H.R. 1631. The Copyright Alliance issued a statement in support of the bills, noting that “Codes and standards have always been protected by copyright. If implemented, what the Pro Codes Act would do is simple—it would ensure that the codes and standards created by standards development organizations continue to be protected against infringers while guaranteeing that the public has access to them when they are incorporated by reference into law…The Pro Codes Act is a clear win for standards development organizations, lawmakers, scholars, and the public.”

House Judiciary IP Subcommittee Holds Hearing on China: On March 8, the House Judiciary Committee (HJC) Subcommittee on Courts, Intellectual Property and the Internet held a hearing titled Intellectual Property and Strategic Competition with China: Part I. The following witnesses testified before the Subcommittee: William Evanina, Founder and CEO of Evanina Group; Jamieson Greer, an International Trade Partner at King & Spalding; Mark Cohen, Distinguished Senior Fellow and Director of the Asia IP Project at the Berkeley Center for Law and Technology; and Charles Duan, Policy Fellow and Adjunct Professor at American University Washington College of Law’s Program on Information Justice and IP, as well as a member of the PPAC. Several members raised concerns surrounding copyrights and our domestic creative industries. For instance, Ranking Member Jerrold Nadler (D-NY) said that piracy in China continues to harm the creative community. Meanwhile, during the Q&A portion of the hearing, Representative Deborah Ross (R-NC) cited that royalties for music used on TikTok are hundreds of times lower than what other streaming services offer.

Senate Finance and House Ways and Means Committees Hold Hearings on President’s 2023 Trade Agenda: On March 23, the Senate Finance Committee held a hearing titled The President’s 2023 Trade Policy Agenda, featuring the testimony of Katherine Tai, the U.S. Trade Representative. Most questions from the Senators revolved around the specifics of future trade negotiations and the enforcement of already existing rules that have not been fully met. Senators Tillis (R-NC)  and Blackburn (R-TN) spoke about the Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) waiver, and Senator Daines (R-MT) talked about Chinese abuse of IP. On March 24, the House Committee on Ways and Means held a hearing on the Biden Administration’s 2023 Trade Policy Agenda with U.S. Trade Representative Ambassador Katherine Tai as a witness. Members of the committee discussed various issues with Ambassador Tai, including IP theft from China, IP issues in relation to the waiver of certain patent rights under TRIPS Agreement, and the importance of the copyright industry, which had 1.6 million workers in 2021, and the need for trade policy to address the stolen or unlicensed use of copyrighted content on digital platforms.

Senate Appropriations Subcommittee Holds Hearing on Library of Congress’ Budget Requests: On March 22, the Senate Appropriations Legislative Branch Subcommittee held a hearing on the FY2024 Budget Requests for the Library of the Congress and the Architect of the Capitol, which featured testimonies from the Librarian of Congress, Dr. Carla Hayden, and the Architect of the Capitol, Ms. Chere Rexroat. During the hearing, copyright only came up in two instances. The first was regarding the Enterprise Copyright System (ECS) and the U.S. Copyright Office’s request for a permanent base for continuous innovations and updates to the system as technology advances. Secondly, Dr. Hayden stated that the FY24 budget funding request would go toward ensuring that the registration system stays functional while transferring from the paper-based Copyright Recordation system to the new online system.

Copyright in the Courts

Publishers Prevail In Case Against Internet Archive: On March 20, the district court for the Southern District of New York heard oral arguments on cross motions for summary judgment in Hachette v. Internet Archive (IA), a case brought in 2020 by a group of publishers challenging IA’s mass scanning and distribution of books under its controlled digital lending theory. On March 24, the court ruled in favor of a group of plaintiff book publishers in their case against the Internet Archive (IA) for scanning print copies of the publishers’ works and lending those digital copies under IA’s untried theory of “Controlled Digital Lending.” The court rejected IA’s fair use arguments on all four factors, holding: (1) that IA gained commercial benefit from offering the eBooks, that “[t]here was nothing transformative” about IA’s unauthorized mass copying and lending of the books; (2) the books were creative works “close to the core of copyright protection” and their published status did not weigh against a fair use finding; (3) the entirety of the works were copied, with no additional transformative purpose, and IA’s copies competed directly with the licensed eBooks; and (4) that IA’s use supplants the publishers’ thriving eBook market.

Maria A. Pallante, President and CEO of the Association of American Publishers, said in a statement, “The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent. In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.” 

The Copyright Alliance also released a statement in support of AAP and its publisher members. Per the statement, Keith Kupferschmid, CEO of the Copyright Alliance, noted that, “For too long, Internet Archive has scanned and distributed published works while refusing to abide by the traditional contours of copyright law…So, we were unsurprised that…the Court rejected arguments by IA that would have pushed fair use boundaries well past their limits under the Copyright Act, while also underscoring the importance of the rights of authors, publishers, and all members of the creative industries who rely on copyright to create works and earn a living.” The Copyright Alliance filed an amicus brief in support of the publishers back in August 2022.

Ringleader of Copyright Piracy Scheme Sentenced to 5.5 Years of Imprisonment: On March 8, the district court for the Eastern District of Pennsylvania announced that Bill Omar Carrasquillo was sentenced to 66 months of imprisonment, more than $30 million in forfeiture, and more than $151 million in restitution, for operating a large-scale IPTV piracy business that reaped Carrasquillo and his associates more than $30 million.

BMI Wins 138% Increase in Songwriter Royalty Rates in Dispute with Concert Promoters: On March 29, it was reported that the district court for the Southern District of New York awarded Broadcast Music, Inc. (BMI) a 138% increase in songwriters’ rates to 0.5% of every event revenue collected by Live Nation, AEG, and the North American Concert Promoters (NACPA), which includes tickets sold on the secondary market and servicing fees, and revenues from box suites and VIP packages. BMI had originally filed a petition in 2018, requesting “reasonable final license fees” for BMI performing songwriters’ compositions in events hosted by the concert promoters. In a statement about the dispute outcome, BMI CEO and President, Mike O’Neill, noted, “This is a massive victory for BMI songwriters, composers, and publishers…It will have a significant and positive impact on the royalties they receive for the live concert category.”

Court Upholds Medical Devices Exemption Resulting from Triennial Rulemaking: On March 7, the district court for the District of Columbia, in an opinion authored by Chief Judge Beryl A. Howell, held that the Library of Congress’ promulgation of an exemption for medical devices arising from its triennial rulemaking on exemptions from the Digital Millennium Copyright Act’s (DMCA) section 1201 prohibition against circumvention of Technological Protection Measures was not barred by the Administrative Procedure Act (APA) or considered unconstitutional. Plaintiffs, the Medical Imaging & Technology Alliance and the Advanced Medical Technology Association, trade organizations for medical imaging equipment manufacturers, had challenged the Library for promulgating the exception. The court held that the plaintiffs’ Administrative Procedure Act (APA) claims are barred because the Librarian’s decisions are not subject to APA review, the Librarian’s promulgation of the exception did not amount to an extreme statutory error required to state a plausible claim, and the DMCA rulemaking process does not violate constitutional separation of powers because the Librarian of Congress and the Register of Copyrights are subject to the control of the President in carrying out these responsibilities.

Court Awards Studios $30 Million Against Pirate IPTV Operators: On March 24, the district court for the Central District of California awarded $30 million for a group of studios, including Universal City Studios, Disney, Netflix, Paramount, and Warner in addition to Amazon and Apple, in their case against the operators behind the pirate IPTV services, AllAccessTV (AATV) and Quality Restreams. The defendants also agreed to a permanent injunction preventing further unauthorized copying, storing, and dissemination of copyrighted works to internet users.

Copyright in Other Countries

German Court Orders DNS Resolver Quad9 to Block Pirate Site: The Regional Court of Leipzig granted Sony Music an injunction, ordering DNS resolver, Quad9, to globally block a music pirate site. The court found that Quad9 made its services available to the pirate service site and did not take action even after notice of infringing activities. Quad9 plans to appeal the ruling.

Argentinean Court Authorizes Dynamic Blocking of Pirate Websites: The National Court of First Instance in Federal Civil and Commercial Matters in Buenos Aires granted a dynamic injunctive order for a group of broadcasters and sports leagues through which Argentina’s national telecommunications agency, ENACOM, has instructed local Internet Service Providers to block 30 domain names and any future mirror sites of pirate TV streaming websites.

Popular Illicit Video Hosting Website in Germany Shut Down: On March 15, the Alliance for Creativity and Entertainment (ACE) announced that the popular illicit video hosting service, Streamzz, was shut down. The service, operating out of Germany, had launched in 2019 and hosted and streamed more than 75,000 movies and 15,000 television shows created and owned by ACE members. “The shutdown of Streamzz is fresh proof that no one in the content piracy ecosystem – whether they’re a streaming service, video streaming host or anything in between – is above the law,” said Jan van Voorn, Executive Vice President and Global Content Protection Chief of the Motion Picture Association and Head of ACE. “We will target piracy services of various kinds in order to protect the global creative economy.”

Industry Activities

Copyright Organizations Launch ‘Protect the Creative Economy Coalition’ in Response to State eBook Legislation: On March 15, a group of authors, publishers, and other copyright organizations from across the United States came together to launch the Protect the Creative Economy Coalition in response to efforts designed to weaken intellectual property protections and damage digital markets through the introduction of eBook legislation in numerous states across the country. The Coalition represents small and independent business owners and other organizations—including the National Music Publishers Association, the News Media Alliance, the Copyright Alliance, Association of American Publishers, the Motion Picture Association, and the Authors Guild—which are “looking to combat a series of unconstitutional state bills that would artificially depress the value of literary works and the contracts that govern intellectual property licenses” through the introduction of state eBook bills.

Authors Guild Drafts Model Clause to Prohibit Unauthorized AI Training Using Authors’ Works: on March 1, the Authors Guild announced it has drafted a new model clause to help authors prohibit the use of their works for the purpose of training artificial intelligence (AI) technologies without express permission from the copyright owner. Authors and agents can now request this clause be added to their contracts. In a statement, the Authors Guild noted that, “If you do not want your work used to train generative AI—AI machines that generate new text works—you should ask to have any such provision struck and the prohibition clause added instead.” The Guild’s Model Trade Book Contract and Literary Translation Model Contract have both been updated to include the new clause.

UMG’s EVP and Chief Digital Officer Pens Op-Ed on Importance of AI Benefitting the Creative Community: On February 14, Universal Music Group’s Executive Vice President and Chief Digital Officer, Michael Nash, penned an op-ed in Music Business Worldwide, emphasizing that amidst the powerful promises and positive benefits that artificial intelligence (AI) technologies bring to the creative community, “leading counterparts across the arts and creative industries, as well as legal scholars, public officials and representatives of the AI industry itself,” must work together to “explore ways to ensure that generative AI properly rewards the people whose intellectual property constitutes the critical contributing material fueling AI’s output, and not solely AI’s financial interests.”

Look Forward To And Save the Date For…

Artist Rights: The Future of the Copyright Royalty Board for Songwriters: On April 7 at 1:45 p.m., the University of Texas School of Law’s Continuing Legal Education program will host a panel titled Artist Rights: The Future of the Copyright Royalty Board for Songwriters. The panel will cover the history and future of the U.S. Copyright Royalty Board, the federal agency that sets the royalty rate for the government’s compulsory licenses for songs and webcasting, among other related topics. Panelists include Mitch Glazier, RIAA; Clark Miller, Clark Miller Consulting; Abby North, North Music Group; and Chris Castle, Chris L. Castle Law.

U.S. Copyright Office Hosts AI Listening Sessions: The Office is hosting four virtual listening sessions in the coming months on the use of AI to generate works in the creative fields. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. April 19 from 1:00-4:00 p.m. ET, the Office will host its listening session on literary works. More information on this session is available on the registration page. April 11 is the deadline to register to participate in the virtual public listening session on copyright and AI issues in the visual arts context This listening session is scheduled for May 2. More information on how to register for the event as a listener or as a speaker, is available on the Office’s website. April 26 is the deadline to register to participate in the U.S. Copyright Office’s virtual public listening session on copyright and AI issues in the audiovisual works context. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. This listening session is scheduled for May 17. More information on how to register for the event as a listener or as a speaker, is available on the registration page

2023 ABA-IPL Section Annual Meeting: On April 12-14, the American Bar Association IP Law Section (ABA-IPL) will host its 2023 Annual Meeting (IPLSPRING), featuring more than 20 CLE sessions, networking events, business meetings, and more at the Omni Shoreham Hotel in Washington, DC. Sessions will “address the most cutting-edge topics in the intellectual property arena” to assist attendees in “stay[ing] current, whether their practice is focused on patents, trademarks, or copyrights.” The program includes sessions on Legislative Updates, Managing IP Malpractice Risks, Steering Your Patent Prosecution Portfolio, Updates from the U.S. Copyright Office, Tools for Combatting Counterfeit Goods, Counseling Clients on Mandatory Disclosures, and more. During the event, on April 13 at 9:45 a.m. ET, Copyright Alliance CEO Keith Kupferschmid will moderate a panel titled Copyright Claims Board—One Year In. Speakers for the panel are Copyright Claims Board Officers David Carson, Monica P. McCabe, and Brad Newberg. More information is available on the registration page.

Fordham Law School’s 30th Annual IP Conference: On April 13-14, the Fordham Law School will hold its 30th Annual IP Conference. The conference features copyright law related panels on E.U. copyright developments, the Copyright Claims Board, and Copyright exceptions and limitations. More information is available on the conference website.

Copyright Alliance and Copyright Society Panel on ‘Whether Use of Copyrighted Works to Train AI Is Fair Use’: On April 19 from 12-1:30 p.m. the New York Chapter of the Copyright Society, in association with the Copyright Alliance, will host an event titled Using Copyrighted Works to Train AI: Fair Use or Just Plain Unfair? During this panel discussion, speakers will address the applicability of the Fair Use Doctrine in relation to the use of copyrighted materials to train machine learning (ML) models that are then used to train artificial intelligence tools and services. Speakers include Sekou Campbell, Partner, Culhane Meadows; Joshua Simmons, Partner, Kirkland & Ellis; Katherine Forrest, Partner, Paul Weiss; and Nancy Wolff, Partner, Cowan, DeBaets, Abrahams & Sheppard, LLP.

Women Trailblazers Creating Success Through Copyright: April 26^th is World Intellectual Property Day. The World Intellectual Property Organization officially announced that the 2023 World IP Day theme is Women and IP: Accelerating Innovation and Creativity. On April 26 from 2:00-3:30 p.m. ET, the Copyright Alliance, in collaboration with the U.S. Copyright Office, the Copyright Society, the Global Innovation Policy Center (GIPC), the U.S. Intellectual Property Alliance, and 12 Volunteer Lawyers for the Arts (VLA) organizations across the country, will host a World Intellectual Property Day (WIPD) 2023 event titled Women Trailblazers Creating Success Through Copyright on Wednesday, April 26. This virtual panel is in keeping with the World Intellectual Property Organization’s (WIPO) 2023 theme, Women and IP: Accelerating Innovation and Creativity. Join us to hear from inspiring women who will discuss how copyright has helped them to advance their careers and protect and distribute their and others’ creative works. Attendees will also learn the steps they can take to forge their own career path by protecting their creativities as well as their livelihoods. Our panel moderator is Karyn A. Temple, Former Register of Copyrights and SEVP & Global General Counsel at the Motion Picture Association; and our panelists are Jayda Imanlihen, Founder of the Black Girl Film School; Alicia Calzada, Deputy General Counsel for the National Press Photographers Association; Tristen Norman, Director, Creative Insights, Getty Images; and Miriam Lord, Associate Register of Copyrights and Director of Public Information and Education at the U.S. Copyright Office. Don’t miss this unique opportunity to gain insights and advice from leading women in the creative and copyright industries. The event will conclude with a Q&A session, time-permitting.

USCO Monthly Recordation System Webinar: On April 27 at 1:00 p.m., the U.S. Copyright Office will host its monthly webinar 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.” More information is available on the registration page.

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