Digital Copyright Wars – DigitalKoans

"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

"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"

"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

"[AAP] Publishers File Brief Opposing Internet Archive Appeal of Loss"

Controlled digital lending is a frontal assault on the foundational copyright principle that rightsholders exclusively control the terms of sale for every different format of their work — a principle that has spawned the broad diversity in formats of books, movies, television and music that consumers enjoy today.

"[T]here is no resemblance between IA’s conversion of millions of print books into ebooks and the historical practice of lending print books. Nor does IA’s distribution of ebooks without paying authors and their publishers a dime conform with the modern practices of libraries, which acquire licenses to lend ebooks to their local communities and enjoy the benefits of digital distribution lawfully."

The Internet Archive ("IA") operates a mass-digitization enterprise in which it copies millions of complete, in-copyright print books and distributes the resulting bootleg ebooks from its website to anyone in the world for free. Granting summary judgment, the District Court properly held that IA’s infringement is not saved by fair use as each of the four factors weighs against IA under longstanding case law.

https://tinyurl.com/5ah5vx3x

"On the Culture of Open Access: The Sci-Hub Paradox"

Based on a large randomized sample, this study first shows that OA publications, including those in fully OA journals, receive more citations than their subscription-based counterparts. However, the OACA has slightly decreased over the seven last years. The introduction of a distinction between those accessible or not via the Sci-hub platform among subscription-based suggest that the generalization of its use cancels the positive effect of OA publishing. The results show that publications in fully OA journals are victims of the success of Sci-hub. Thus, paradoxically, although Sci-hub may seem to facilitate access to scientific knowledge, it negatively affects the OA movement as a whole, by reducing the comparative advantage of OA publications in terms of visibility for researchers

https://doi.org/10.1007/s11192-023-04792-5

"ACS, Elsevier, and Researchgate Resolve Litigation, with Solution to Support Researchers"

ACS and Elsevier, members of the Coalition for Responsible Sharing, have agreed to a legal settlement with ResearchGate that ensures copyright-compliant sharing of research articles published with ACS or Elsevier on the ResearchGate site. The lawsuits pending against ResearchGate in Germany and the United States are now resolved. The specific terms of the parties’ settlement are confidential.

Background: "Munich Court Ruling Sides with Elsevier, ACS over ResearchGate."

https://tinyurl.com/mrr9xywj

"Us Rejects AI Copyright for Famous State Fair-Winning Midjourney Art"

"The Board finds that the Work contains more than a de minimis amount of content generated by artificial intelligence ("AI"), and this content must therefore be disclaimed in an application for registration. Because Mr. Allen is unwilling to disclaim the AI-generated material, the Work cannot be registered as submitted," the office wrote in its decision.

https://tinyurl.com/3exv5ecw

"Internet Archive Appeals Loss in Library Ebook Lawsuit"

The Internet Archive announced today that it has appealed its loss in a major ebook copyright case. A notice indicates that it’s filed with the Second Circuit Court of Appeals in Hachette v. Internet Archive, a publishing industry lawsuit over the nonprofit group’s Open Library program. . . .

Court documents indicate the Internet Archive is still preparing its response to the lawsuit by UMG and other record labels; a pretrial conference in that case is currently scheduled for October.

https://tinyurl.com/ysp8m558

"Microsoft Offers Legal Protection for AI Copyright Infringement Challenges"

"Specifically, if a third party sues a commercial customer for copyright infringement for using Microsoft’s Copilots or the output they generate, we will defend the customer and pay the amount of any adverse judgments or settlements that result from the lawsuit, as long as the customer used the guardrails and content filters we have built into our products," writes Microsoft.

Further information: "Microsoft Announces New Copilot Copyright Commitment for Customers."

https://tinyurl.com/53x9yh6m

"Internet Archive Responds to Recording Industry Lawsuit Targeting Obsolete Media"

Late Friday, some of the world’s largest record labels, including Sony and Universal Music Group, filed a lawsuit against the Internet Archive and others for the Great 78 Project, a community effort for the preservation, research and discovery of 78 rpm records that are 70 to 120 years old. . . .

Of note, the Great 78 Project has been in operation since 2006 to bring free public access to a largely forgotten but culturally important medium. Through the efforts of dedicated librarians, archivists and sound engineers, we have preserved hundreds of thousands of recordings that are stored on shellac resin, an obsolete and brittle medium. The resulting preserved recordings retain the scratch and pop sounds that are present in the analog artifacts; noise that modern remastering techniques remove.

These preservation recordings are used in teaching and research, including by university professors like Jason Luther of Rowan University, whose students use the Great 78 collection as the basis for researching and writing podcasts for use in class assignments . . . While this mode of access is important, usage is tiny—on average, each recording in the collection is only accessed by one researcher per month.

https://tinyurl.com/bdevycm5

"Judgment Entered in Publishers, Internet Archive Copyright Case"

Most importantly, the proposed agreement includes a permanent injunction that would, among its provisions, bar the IA’s lending of unauthorized scans of in-copyright, commercially available books, as well as bar the IA from "profiting from" or "inducing" any other party’s "infringing reproduction, public distribution, public display and/or public performance" of books "in any digital or electronic form" once notified by the copyright holder. . . .

The negotiated payment is all inclusive—it covers costs, fees, damages, and other claims, including the IA’s claim that damages should be remitted—something that should assuage initial concerns expressed by some who feared a massive damage award might force the nonprofit IA to cease operations. The negotiated judgment does seek destruction of the IA’s scans as the publishers’ initial complaint had suggested.

https://tinyurl.com/p3yaszd9

| Research Data Publication and Citation Bibliography | Research Data Sharing and Reuse Bibliography | Research Data Curation and Management Bibliography | Digital Scholarship |

"The New York Times Prohibits AI Vendors from Devouring Its Content"

The new terms prohibit the use of Times content—which includes articles, videos, images, and metadata—for training any AI model without express written permission. In Section 2.1 of the TOS, the NYT says that its content is for the reader’s “personal, non-commercial use” and that non-commercial use does not include “the development of any software program, including, but not limited to, training a machine learning or artificial intelligence (AI) system.”

https://tinyurl.com/2cc4uhuc

"Sites Scramble to Block ChatGPT Web Crawler after Instructions Emerge"

But for large website operators, the choice to block large language model (LLM) crawlers isn’t as easy as it may seem. Making some LLMs blind to certain website data will leave gaps of knowledge that could serve some sites very well (such as sites that don’t want to lose visitors if ChatGPT supplies their information for them), but it may also hurt others. For example, blocking content from future AI models could decrease a site’s or a brand’s cultural footprint if AI chatbots become a primary user interface in the future. As a thought experiment, imagine an online business declaring that it didn’t want its website indexed by Google in the year 2002—a self-defeating move when that was the most popular on-ramp for finding information online.

https://tinyurl.com/yc4mcejn

| Research Data Publication and Citation Bibliography | Research Data Sharing and Reuse Bibliography | Research Data Curation and Management Bibliography | Digital Scholarship |

"Publishers, Internet Archive Agree to Streamline Digital Book-Lending Case"

The proposed order would require the Archive to pay Lagardere SCA’s (LAGA.PA) Hachette Book Group, News Corp’s (NWSA.O) HarperCollins Publishers, John Wiley & Sons (WLY.N) and Bertelsmann SE & Co’s (BTGGg.F) Penguin Random House an undisclosed amount of money if it loses its appeal.

The order would also permanently block the Archive from lending out copies of the publishers’ books without permission, pending the result of the appeal.

https://tinyurl.com/yc5j2vb8

| Research Data Publication and Citation Bibliography | Research Data Sharing and Reuse Bibliography | Research Data Curation and Management Bibliography | Digital Scholarship |

"Record Labels Hit Internet Archive with New $400m+ Copyright Lawsuit"

Record labels including UMG, Capitol and Sony have filed a copyright infringement lawsuit in the United States targeting Internet Archive and founder Brewster Kale, among others. Filed in Manhattan federal court late Friday, the complaint alleges infringement of 2,749 works, recorded by deceased artists, including Frank Sinatra, Billie Holiday, Louis Armstrong and Bing Crosby.

https://tinyurl.com/43b4c3w6

| Research Data Publication and Citation Bibliography | Research Data Sharing and Reuse Bibliography | Research Data Curation and Management Bibliography | Digital Scholarship |

"Major YouTube Copyright Lawsuit Nears Trial With Almost Everything On the Line"

Maria Schneider’s lawsuit against YouTube alleges several types of mass copyright infringement and repeat infringer failures. The trial begins next month, with proposed jury instructions already running to 243 pages. YouTube believes it will win, but the stakes are rarely this high. In addition to damages, the plaintiffs want YouTube to disclose details of files that remain on the site after identical copies were removed due to DMCA notices. And that’s not all.

https://bit.ly/3pMnw9m

"Z-Library Plans to Let Users Share Physical Books through ‘Z-Points’"

Z-Library appears to be shrugging off a criminal investigation as if nothing ever happened. The site continues to develop its shadow library and, following a successful fundraiser, now plans to expand its services to the physical book market. Z-Library envisions a book "sharing" market, where its millions of users can pick up paperbacks at dedicated "Z-Points" around the globe.

https://cutt.ly/i7bAHGU

"Controlled Digital Lending Takes a Blow in Court"

The implications of this ruling are potentially profound, and, given the strong lean in the publisher’s favor, they are potentially troubling for libraries and the rights of those who seek to engage with content in our evermore digital and digitized world if the decision stands through the forthcoming appeals. For the significant amount of content that exists in print form and for which there is no publisher-sanctioned digital version available, that content has become effectively walled off from the digital world until it passes into the public domain—essentially for longer than anyone reading this blog is alive. Those who live in close proximity to and have access to world-class institutions with sizable print collections can get access to much of this content. For the vast majority of library users, this will not be the case. Their access will be significantly curtailed, but to paraphrase the ruling, this public interest is secondary to the interests of publishers in exercising their monopoly.

http://bit.ly/40GaNC4

"Who Owns Bibliographic Metadata Created by Libraries?"

The ownership of MARC bibliographic data has been an issue between OCLC and other companies in the marketplace. Two lawsuits are discussed between OCLC and Clarivate and SkyRiver.

https://doi.org/10.1080/01930826.2023.2177928

"In a Swift Decision, Judge Eviscerates Internet Archive’s Scanning and Lending Program"

"At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book," Koeltl wrote in a March 24 opinion granting the publisher plaintiffs’ motion for summary judgment and denying the Internet Archive’s cross-motion. "But no case or legal principle supports that notion. Every authority points in the other direction."

https://cutt.ly/54AdZfY

Millions of Digitized Books May Be Destroyed: "Press Conference Statement: Brewster Kahle, Internet Archive"

Here’s what’s at stake in this case: hundreds of libraries contributed millions of books to the Internet Archive for preservation in addition to those books we have purchased. Thousands of donors provided the funds to digitize them.

The publishers are now demanding that those millions of digitized books, not only be made inaccessible, but be destroyed.

This is horrendous. Let me say it again—the publishers are demanding that millions of digitized books be destroyed.

And if they succeed in destroying our books or even making many of them inaccessible, there will be a chilling effect on the hundreds of other libraries that lend digitized books as we do.

This could be the burning of the Library of Alexandria moment—millions of books from our community’s libraries mdash;gone.

http://bit.ly/3JHMjli

"At Hearing, Judge Appears Skeptical of Internet Archive’s Scanning and Lending Program"

Over the course of a 90-minute hearing on the parties’ cross motions for summary judgment, Koeltl appeared skeptical that there was sufficient basis in law to support the Internet Archive’s scanning and lending of print library books under a legally untested protocol known as controlled digital lending, and unconvinced that the case is fundamentally about the future of library lending, as Internet Archive attorneys have argued.

http://bit.ly/3FFjVyS