Copyright – DigitalKoans

"Video Game Preservationists Have Lost a Legal Fight to Study Games Remotely"

When video game scholars want to study games that are no longer on sale, they sometimes have to drive many hours to do it legally — and that won’t be changing anytime soon. The US Copyright Office has just denied a request from video game preservationists to let libraries, archives and museums temporarily lend individuals some virtual, remotely accessible copies of those works.

https://tinyurl.com/3sb37jn6

"‘Massive Copyright Violation’ Threatens One of the World’s Hottest AI Apps"

News Corp has officially filed a lawsuit against Perplexity AI over accusations that the startup has committed copyright infringement on a “massive scale.” . . .

Perplexity’s value proposition is instead to insert itself between search and content producers as a middleman, training its AI on copyrighted content that its chatbot will then regurgitate. . . to its own paying customers, without compensating or attributing the original content producers. . . .

https://tinyurl.com/y2h5fpeu

Perplexity

"Publishers Join with Worldwide Coalition to Condemn the Theft of Creative and Intellectual Authorship by Tech Companies for Generative AI Training"

Today, the Association of American Publishers (AAP) joined forces with more than 10,000 creators and coalition partners, including authors, musicians, actors, artists, and photographers, to condemn the theft of creative and intellectual authorship by big tech companies for use in their Generative AI models. In fact, these consumer-facing models and tools would not exist without the books, newspapers, songs, performances, and other invaluable human expressions that were—and continue to be—copied, ingested, and regenerated in blatant disregard of the law.

https://tinyurl.com/4e37e3ff

| Artificial Intelligence |
| Research Data Curation and Management Works |
| Digital Curation and Digital Preservation Works |
| Open Access Works |
| Digital Scholarship |

"New ‘Fair Source’ Movement Aims to Bridge the Gap Between Open Source and Proprietary Licensing"

Key principles of the model include publicly available source code, allowing third-party use and modification with “minimal restrictions,” and a delayed open-source publication clause, where the software transitions to a true open-source license after a predefined period (two years under Sentry’s Functional Source License).

https://tinyurl.com/ypswkw3j

"CDL Decision Round Two: The Good, the Bad, and the Ugly and Why There is Still Hope OR The Reports of CDL’s Death Have Been Greatly Exaggerated"

Let me be unequivocal: libraries do not need a license to loan books, whether physical or digital. Lending legally acquired books is not illegal. Libraries are entitled to share these works, with no obligation to enter into licensing agreements or contracts beforehand. Furthermore, libraries—and their patrons—are legally permitted to make various uses of these works, including interlibrary loan, reserves, preservation, and fair use, all without needing permission from rightsholders.

This is because various exceptions in the law, including Section 108 for Libraries and Archives, ad Section 109 known as the first sale doctrine. We know that Section 109 preserves the balance between rightsholders and libraries. When a library purchases a book, it has the right to loan that work freely, without requiring additional permissions or payments to the copyright holder. A digitized version of a legally acquired book simply replaces the physical copy, not an unpurchased one in the marketplace. Any “market harm” is already factored into the initial sale, for which both the authors and publishers have been compensated.

https://tinyurl.com/3exh96bu

"The AI-Copyright Trap"

As AI tools proliferate, policy makers are increasingly being called upon to protect creators and the cultural industries from the extractive, exploitative, and even existential threats posed by generative AI. In their haste to act, however, they risk running headlong into the Copyright Trap: the mistaken conviction that copyright law is the best tool to support human creators and culture in our new technological reality (when in fact it is likely to do more harm than good). It is a trap in the sense that it may satisfy the wants of a small group of powerful stakeholders, but it will harm the interests of the more vulnerable actors who are, perhaps, most drawn to it. Once entered, it will also prove practically impossible to escape. I identify three routes in to the copyright trap in current AI debates: first is the “if value, then (property) right” fallacy; second is the idea that unauthorized copying is inherently wrongful; and third is the resurrection of the starving artist trope to justify copyright’s expansion.

https://tinyurl.com/bdett6ue

"eBooks, Interlibrary Loan and an Uncertain Future"

Important advancements are underway, but ILL for ebooks is hampered by restrictive licensing models, resource sharing systems, and current practices. This study provides an environmental scan of the current acquisitions and ILL practices of academic libraries. This paper guides academic libraries through these conversations so that they can support the borrowing and lending of ebooks into the future.

https://doi.org/10.1080/0361526X.2024.2391735

"The AI Copyright Hype: Legal Claims That Didn’t Hold Up"

Over the past year, two dozen AI-related lawsuits and their myriad infringement claims have been winding their way through the court system. None have yet reached a jury trial. While we all anxiously await court rulings that can inform our future interaction with generative AI models, in the past few weeks, we are suddenly flooded by news reports with titles such as “US Artists Score Victory in Landmark AI Copyright Case,” “Artists Land a Win in Class Action Lawsuit Against A.I. Companies,” “Artists Score Major Win in Copyright Case Against AI Art Generators”—and the list goes on. The exuberant mood in these headlines mirror the enthusiasm of people actually involved in this particular case (Andersen v. Stability AI). The plaintiffs’ lawyer calls the court’s decision “a significant step forward for the case.” “We won BIG,” writes the plaintiff on X.

In this blog post, we’ll explore the reality behind these headlines and statements. The “BIG” win in fact describes a portion of the plaintiffs’ claims surviving a pretrial motion to dismiss. If you are already familiar with the motion to dismiss per Federal Rules of Civil Procedure Rule 12(b)(6), please refer to Part II to find out what types of claims have been dismissed early on in the AI lawsuits.

https://tinyurl.com/rhmzkr8y

"Interview: Deciphering the Law: Hachette v. Internet Archive Pt. 1 (2023) with Dave Hansen"

This is the first in a series of interviews with those closely tied to the Hachette v. Internet Archive lawsuit. In March 2023, the court ruled against the Internet Archive and its use of the Emergency Lending Library causing a ripple throughout the library and education fields. Below, find the answers to some of the questions that the case elicited by JCEL contributors and copyright scholars Dave Hansen, Michelle Wu, and Kyle Courtney.

https://doi.org/10.17161/jcel.v7i2.21337

"Summary of User Rights Network Symposium: Protecting Copyright User Rights from Contractual Override "

In this paper, Benson, Blumenthal, and Klosek summarize the proceedings of the public symposium on the “Protection of Copyright User Rights from Contractual Override.” The American Library Association (ALA) and the Association of Research Libraries (ARL)—together, the Library Copyright Alliance (LCA)—sponsored the symposium in partnership with the American University Washington College of Law Program on Information Justice and Intellectual Property (PIJIP). The paper includes summaries of each panel, questions that were discussed, and takeaways for the library community to consider.

https://doi.org/10.17161/jcel.v7i2.20856

"NVIDIA: Copyrighted Books Are Just Statistical Correlations to Our AI Models"

Earlier this year, several authors sued NVIDIA over alleged copyright infringement. The class action lawsuit alleged that the company’s AI models were trained on copyrighted works and specifically mentioned Books3 data [a database of over 180,000 pirated books]. Since this happened without permission, the rightsholders demand compensation. . . .

The company believes that AI companies should be allowed to use copyrighted books to train their AI models, as these books are made up of “uncopyrightable facts and ideas” that are already in the public domain. . . .

“[AI] Training measures statistical correlations in the aggregate, across a vast body of data, and encodes them into the parameters of a model. Plaintiffs do not try to claim a copyright over those statistical correlations, asserting instead that the training data itself is ‘copied’ for the purposes of infringement,” NVIDIA writes [to the court hearing the case].

According to NVIDIA, the lawsuit boils down to two related questions. First, whether the authors’ direct infringement claim is essentially an attempt to claim copyright on facts and grammar. Second, whether making copies of the books is fair use.

https://tinyurl.com/mpa6e8jj

"Artists Claim ‘Big’ Win in Copyright Suit Fighting AI Image Generators"

In an order on Monday, US district judge William Orrick denied key parts of motions to dismiss from Stability AI, Midjourney, Runway AI, and DeviantArt. The court will now allow artists to proceed with discovery on claims that AI image generators relying on Stable Diffusion violate both the Copyright Act and the Lanham Act, which protects artists from commercial misuse of their names and unique styles. . . .

While Orrick agreed with Midjourney that “plaintiffs have no protection over ‘simple, cartoony drawings’ or ‘gritty fantasy paintings,'” artists were able to advance a “trade dress” claim under the Lanham Act, too.

https://tinyurl.com/yd27cvar

"Trade Dress Infringement"

"Wiley and Oxford University Press Confirm AI Partnerships as Cambridge University Press Offers ‘Opt-In’"

Wiley and Oxford University Press (OUP) told The Bookseller they have confirmed AI partnerships, with the availability of opt-ins and remuneration for authors appearing to vary. . . .

Meanwhile, Cambridge University Press has said it is talking to authors about opt ins along with ‘fair remuneration’ before making any deals.

Hachette, HarperCollins, and Pan Macmillan have not made AI deals.

https://tinyurl.com/bdzax5sk

"What Happens When Your Publisher Licenses Your Work for AI Training?"

In a lot of cases, yes, publishers can license AI training rights without asking authors first. Many publishing contracts include a full and broad grant of rights–sometimes even a full transfer of copyright to the publisher for them to exploit those rights and to license the rights to third parties. . . .

Not all publishing contracts are so broad, however. For example, in the Model Publishing Contract for Digital Scholarship (which we have endorsed), the publisher’s sublicensing rights are limited and specifically defined, and profits resulting from any exploitation of a work must be shared with authors. . . .

There are lots of variations, and specific terms matter. Some publisher agreements are far more limited–transferring only limited publishing and subsidiary rights. . . .

This is further complicated by the fact that authors sometimes are entitled to reclaim their rights, such as by rights reversion clause and copyright termination. . . .

We [the Authors Alliance] think it is certainly reasonable to be skeptical about the validity of blanket licensing schemes between large corporate rights holders and AI companies, at least when they are done at very large scale. Even though in some instances publishers do hold rights to license AI training, it is dubious whether they actually hold, and sufficiently document, all of the purported rights of all works being licensed for AI training.

https://tinyurl.com/53fnj9h7

"Copyright Office Releases Part 1 of Artificial Intelligence Report, Recommends Federal Digital Replica Law"

Today, the U.S. Copyright Office is releasing Part 1 of its Report on the legal and policy issues related to copyright and artificial intelligence (AI), addressing the topic of digital replicas. This Part of the Report responds to the proliferation of videos, images, or audio recordings that have been digitally created or manipulated to realistically but falsely depict an individual. Given the gaps in existing legal protections, the Office recommends that Congress enact a new federal law that protects all individuals from the knowing distribution of unauthorized digital replicas. The Office also offers recommendations on the elements to be included in crafting such a law. . . .

The Report is being released in several Parts, beginning today. Forthcoming Parts will address the copyrightability of materials created in whole or in part by generative AI, the legal implications of training AI models on copyrighted works, licensing considerations, and the allocation of any potential liability.

https://tinyurl.com/yc2fhthm

"Breach of Academic Values and Misconduct: The Case of Sci-Hub"

This paper investigates the growing evidence of research-related misconduct by developing and testing a theoretical framework. We study the deep causes of misconduct by asking whether the perception of an erosion of the core academic values, formally an ideology-based psychological contract breach, is associated with research-related misconduct. We test our framework by examining the use of Sci-Hub and providing empirical evidence that the loss of faith in scientific research sparkles research-related misconduct against publishers. Based on a stratified sample of 2849 academics working in 30 institutions in 6 European countries, we find that ideology-based psychological contract breach explains Sci-Hub usage, also when controlling for other possible motivations. The magnitude of the effect depends on contextual and demographic characteristics. Females, foreign, and tenured scholars are less likely to download papers illegally when experiencing a contract breach of academic values. Our results suggest that policies restoring academic values might also address research-related misconduct.

https://link.springer.com/article/10.1007/s11192-024-05046-8

Paywall: "Copyright and Text and Data Mining: Is the Current Legislation Sufficient and Adequate?"

This paper presents the basic aspects of legislation applicable to text and data mining activities. It offers a detailed comparative analysis of the norms of the main jurisdictions that have regulated them to date [Japan, UK, US, and EU] highlighting in each case the positive and negative aspects.

https://doi.org/10.1353/pla.2024.a931775

"Academic Authors ‘Shocked’ After Taylor & Francis Sells Access to Their Research to Microsoft AI"

One of the biggest concerns raised by Clemens [Dr Ruth Alison Clemens] is over whether it is possible for Taylor & Francis’ authors to opt out of the AI partnership with Microsoft. Clemens told The Bookseller: "There is no clarity from Taylor & Francis about whether an opt-out policy is in place or on the cards. But as they did not inform their authors about the deal in the first place, any opt-out policy is now not functional."

Taylor & Francis was paid around $10 million for the license.

https://tinyurl.com/3yyarxnj

"Tell Congress: Don’t Let Anyone Own the Law"

A large portion of the regulations we all live by (such as fire safety codes, or the national electrical code) are initially written—by industry experts, government officials, and other volunteers—under the auspices of standards development organizations (SDOs). Federal, state, or municipal policymakers then review the codes and decide whether the standard is good broad rule. The Pro Codes Act effectively endorses the claim that SDOs can "retain" copyright in codes, even after they are made law, as long as they make the codes available through a "publicly accessible" website — which means read-only, and subject to licensing limits.

https://tinyurl.com/bdrdfnr3

"On the Modification and Revocation of Open Source Licences"

Historically, open source commitments have been deemed irrevocable once materials are released under open source licenses. In this paper, the authors argue for the creation of a subset of rights that allows open source contributors to force users to (i) update to the most recent version of a model, (ii) accept new use case restrictions, or even (iii) cease using the software entirely. While this would be a departure from the traditional open source approach, the legal, reputational and moral risks related to open-sourcing AI models could justify contributors having more control over downstream uses. Recent legislative changes have also opened the door to liability of open source contributors in certain cases. The authors believe that contributors would welcome the ability to ensure that downstream users are implementing updates that address issues like bias, guardrail workarounds or adversarial attacks on their contributions. Finally, this paper addresses how this license category would interplay with RAIL licenses, and how it should be operationalized and adopted by key stakeholders such as OSS platforms and scanning tools.

https://arxiv.org/abs/2407.13064

AI Is Running Out of New Training Data: Consent in Crisis: The Rapid Decline of the AI Data Commons

General-purpose artificial intelligence (AI) systems are built on massive swathes of public web data, assembled into corpora such as C4, RefinedWeb, and Dolma. To our knowledge, we conduct the first, large-scale, longitudinal audit of the consent protocols for the web domains underlying AI training corpora. . . .Our longitudinal analyses show that in a single year (2023-2024) there has been a rapid crescendo of data restrictions from web sources, rendering ~5%+ of all tokens in C4, or 28%+ of the most actively maintained, critical sources in C4, fully restricted from use. For Terms of Service crawling restrictions, a full 45% of C4 is now restricted. If respected or enforced, these restrictions are rapidly biasing the diversity, freshness, and scaling laws for general-purpose AI systems.

https://tinyurl.com/4k56axzk

"STM Statement Regarding Unlicensed Use of STM’s Members’ Content in the Training, Development, and Operation of AI Models"

The unlicensed use of STM’s members’ content in the training, development, and operation of AI models is of great concern to STM and to our members. Because STM’s members do not share a single jurisdiction, the particular actions and practices of a given AI developer with respect to a given domestic copyright law are too varied to enumerate here. However, regardless of legal nuances among jurisdictions, STM considers the conclusion to be the same — the collection of our members’ content and its use in AI training without authorization, compensation or attribution, amounts to infringement. We support the statements about third parties’ use of content in generative AI training and development that have been made by our sister organizations the International Publishers Association and the UK Publishers Association.

https://tinyurl.com/5n6zh9sy

"Google’s Wrong Answer to the Threat of AI — Stop Indexing Content"

"Google is no longer trying to index the entire web," writes Schmalbach [Vincent Schmalbach, SEO expert]. "In fact, it’s become extremely selective, refusing to index most content. This isn’t about content creators failing to meet some arbitrary standard of quality. Rather, it’s a fundamental change in how Google approaches its role as a search engine." The default setting from now on will be not to index content unless it is genuinely unique, authoritative and has ‘brand recognition’.

https://tinyurl.com/32t98fhu

"RIAA Sues Suno & Udio AI Music Generators For ‘Trampling’ on Copyright"

Major recording labels of the RIAA have filed a pair of broadly similar copyright lawsuits against two key generative AI music services. The owners of Udio and Suno stand accused of copying the labels’ music on a massive scale and the labels suggest that they’re already on the back foot. In pre-litigation correspondence, both were ‘evasive’ on content sources before citing fair use, which the RIAA notes only arises as a defense in cases of unauthorized use of copyright works.

https://tinyurl.com/p9tnycte

"Internet Archive Forced to Remove 500,000 Books after Publishers’ Court Win"

As a result of book publishers successfully suing the Internet Archive (IA) last year, the free online library that strives to keep growing online access to books recently shrank by about 500,000 titles. . . .

To restore access, IA is now appealing, hoping to reverse the prior court’s decision by convincing the US Court of Appeals in the Second Circuit that IA’s controlled digital lending of its physical books should be considered fair use under copyright law. An April court filing shows that IA intends to argue that the publishers have no evidence that the e-book market has been harmed by the open library’s lending, and copyright law is better served by allowing IA’s lending than by preventing it. . . ./p>

Freeland [Chris Freeland, IA’s director of library service] told Ars it could take months or even more than a year before a decision is reached in the case.

While IA fights to end the injunction, its other library services continue growing, IA has said. IA "may still digitize books for preservation purposes" and "provide access to our digital collections" through interlibrary loan and other means. IA can also continue lending out-of-print and public domain books.

https://tinyurl.com/47aws7z7