Tag: copyright

AI Legislative Update

Congressional legislation to regulate artificial intelligence (“AI”) and AI companies is in the early formative stages. Just about the only thing that is certain at this point is that federal regulation in the United States is coming.

Congressional legislation to regulate artificial intelligence (“AI”) and AI companies is in the early formative stages. Just about the only thing that is certain at this point is that federal regulation in the United States is coming.

In August, 2023, Senators Richard Blumenthal (D-CT) and Josh Hawley (R-MO) introduced a Bipartisan Framework for U.S. AI Act. The Framework sets out five bullet points identifying Congressional legislative objectives:

  • Establish a federal regulatory regime implemented through licensing AI companies, to include requirements that AI companies provide information about their AI models and maintain “risk management, pre-deployment testing, data governance, and adverse incident reporting programs.”
  • Ensure accountability for harms through both administrative enforcement and private rights of action, where “harms” include private or civil right violations. The Framework proposes making Section 230 of the Communications Decency Act inapplicable to these kinds of actions. (Second 230 is the provision that generally grants immunity to Facebook, Google and other online service providers for user-provided content.) The Framework identifies the harms about which it is most concerned as “explicit deepfake imagery of real people, production of child sexual abuse material from generative A.I. and election interference.” Noticeably absent is any mention of harms caused by copyright infringement.
  • Restrict the sharing of AI technology with Russia, China or other “adversary nations.”
  • Promote transparency: The Framework would require AI companies to disclose information about the limitations, accuracy and safety of their AI models to users; would give consumers a right to notice when they are interacting with an AI system; would require providers to watermark or otherwise disclose AI-generated deepfakes; and would establish a public database of AI-related “adverse incidents” and harm-causing failures.
  • Protect consumers and kids. “Consumer should have control over how their personal data is used in A.I. systems and strict limits should be imposed on generative A.I. involving kids.”

The Framework does not address copyright infringement, whether of the input or the output variety.

The Senate Judiciary Committee Subcommittee on Privacy, Technology, and the Law held a hearing on September 12, 2023. Witnesses called to testify generally approved of the Framework as a starting point.

The Senate Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety and Data Security also held a hearing on September 12, called The Need for Transparency in Artificial Intelligence. One of the witnesses, Dr. Ramayya Krishnan, Carnegie Mellon University, did raise a concern about the use of copyrighted material by AI systems and the economic harm it causes for creators.

On September 13, 2023, Sen. Chuck Schumer (D-NY) held an “AI Roundtable.” Invited attendees present at the closed-door session included Bill Gates (Microsoft), Elon Musk (xAI, Neuralink, etc.) Sundar Pichai (Google), Charlie Rivkin (MPA), and Mark Zuckerberg (Meta). Gates, whose Microsoft company, like those headed by some of the other invitees, has been investing heavily in generative-AI development, touted the claim that AI could target world hunger.

Meanwhile, Dana Rao, Adobe’s Chief Trust Officer, penned a proposal that Congress establish a federal anti-impersonation right to address the economic harms generative-AI causes when it impersonates the style or likeness of an author or artist. The proposed law would be called the Federal Anti-Impersonation Right Act, or “FAIR Act,” for short. The proposal would provide for the recovery of statutory damages by artists who are unable to prove actual economic damages.

A Recent Exit from Paradise

Over a year ago, Steven Thaler filed an application with the United States Copyright Office to register a copyright in an AI-generated image called “A Recent Entrance to Paradise.” In the application, he listed a machine as the “author” and himself as the copyright owner. The Copyright Office refused registration  on the grounds that the work lacked human authorship. Thaler then filed a lawsuit in federal court seeking to overturn that determination. On August 18, 2023 the court upheld the Copyright Office’s refusal of registration. The case is Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236 (D.D.C. Aug. 18, 2023).

Read more about the history of this case in my previous blog post, “A Recent Entrance to Complexity.”

The Big Bright Green Creativity Machine

In his application for registration, Thaler had listed his computer, referred to as “Creativity Machine,” as the “author” of the work, and himself as a claimant. The Copyright Office denied registration on the basis that copyright only protects human authorship.

Taking the Copyright Office to court

Unsuccessful in securing a reversal through administrative appeals, Thaler filed a lawsuit in federal court claiming the Office’s denial of registration was “arbitrary, capricious, an abuse of discretion and not in accordance with the law….”

The court ultimately sided with the Copyright Office. In its decision, it provided a cogent explanation of the rationale for the human authorship requirement:

The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception. Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.

Id.

A Complex Issue

As I discussed in a previous blog post, the issue is not as simple as it might seem. There are different levels of human involvement in the use of an AI content generating mechanism. At one extreme, there are programs like “Paint,” in which users provide a great deal of input. These kinds of programs may be analogized to paintbrushes, pens and other tools that artists traditionally have used to express their ideas on paper or canvas. Word processing programs are also in this category. It is easy to conclude that the users of these kinds of programs are the authors of works that may be sufficiently creative and original to receive copyright protection.

At the other end of the spectrum are AI services like DALL-E and ChatGPT. These tools are capable of generating content with very little user input. If the only human input is a user’s directive to “Draw a picture,” then it would be difficult to claim that the author contributed any creative expression. That is to say, it would be difficult to claim that the user authored anything.

The difficult question – and one that is almost certain to be the subject of ongoing litigation and probably new Copyright Office regulations – is exactly how much, and what kind of, human input is necessary before a human can claim authorship.  Equally as perplexing is how much, if at all, the Copyright Office should involve itself in ascertaining and evaluating the details of the process by which a work was created. And, of course, what consequences should flow from an applicant’s failure to disclose complete details about the nature and extent of machine involvement in the creative process.

Conclusion

The court in this case did not dive into these issues. The only thing we can safely take away from this decision is the broad proposition that a work is not protected by copyright to the extent it is generated by a machine.

A copyright win in the Internet Archive lawsuit

Book publishers have won their lawsuit against the Internet Archive. What does it mean for copyright owners? Cokato Copyright Attorney Tom James explains.

New York Public Library public domain image; this is NOT the library that is involved in this lawsuit.

In a previous blog post, I wrote about a lawsuit that book publishers Hachette Book Group et al. have filed against Internet Archive (“IA”) et al. The lawsuit alleges that IA scans copyright-protected printed books into a digital format, uploads them to its servers, and distributes these digital copies to members of the public via a website – all without a license and without paying the authors and publishers. The lawsuit asserts claims of copyright infringement.

A permanent injunction

Judge John Koeltl has now approved a consent judgment providing for a permanent injunction that prohibits Internet Archive from scanning and distributing copyrighted books. It applies only to books that copyright owners have already published and made available in e-book format. As Judge Koeltl put it: “The Court has narrowly tailored the injunctive relief in this case to cover only copyrighted works, like the Works in Suit, that are available from the Publishers in electronic form.”

IA reportedly plans to appeal.

A new lawsuit

This month, Sony Music Entertainment et al. filed a similar copyright infringement lawsuit against IA. This complaint alleges that IA digitized and distributed digital copies of 78 rpm records by Frank Sinatra, Billie Holiday, and other recording artists in violation of the rights of copyright owners.

Generative-AI: The Top 12 Lawsuits

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are the most significant lawsuits that have been filed so far.

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are the most significant lawsuits that have been filed so far.

Most of these allege copyright infringement, but some make additional or other kinds of claims, such as trademark, privacy or publicity right violations, defamation, unfair competition, and breach of contract, among others. So far, the suits primarily target the developers and purveyors of generative AI chatbots and similar technology. They focus more on what I call “input” than on “output” copyright infringement. That is to say, they allege that copyright infringement is involved in the way particular AI tools are trained.

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence (May, 2020)

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence Inc., No. 20-cv-613 (D. Del. 2020)

Thomson Reuters alleges that ROSS Intelligence copied its Westlaw database without permission and used it to train a competing AI-driven legal research platform. In defense, ROSS has asserted that it only copied ideas and facts from the Westlaw database of legal research materials. (Facts and ideas are not protected by copyright.) ROSS also argues that its use of content in the Westlaw database is fair use.

One difference between this case and subsequent generative-AI copyright infringement cases is that the defendant in this case is alleged to have induced a third party with a Westlaw license to obtain allegedly proprietary content for the defendant after the defendant had been denied a license of its own. Other cases involve generative AI technologies that operate by scraping publicly available content.

The parties filed cross-motions for summary judgment. While those motions were pending, the U.S. Supreme Court issued its decision in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ___, 143 S. Ct. 1258 (2023). The parties have now filed supplemental briefs asserting competing arguments about whether and how the Court’s treatment of transformative use in that case should be interpreted and applied in this case. A decision on the motions is expected soon.

Doe 1 et al. v. GitHub et al. (November, 2022)

Doe 1 et al. v. GitHub, Inc. et al., No. 22-cv-06823 (N.D. Calif. November 3, 2022)

This is a class action lawsuit against GitHub, Microsoft, and OpenAI that was filed in November, 2022. It involves GitHub’s CoPilot, an AI-powered tool that suggests lines of programming code based on what a programmer has written. The complaint alleges that Copilot copies code from publicly available software repositories without complying with the terms of applicable open-source licenses. The complaint also alleges removal of copyright management information in violation of 17 U.S.C. § 1202, unfair competition, and other tort claims.

Andersen et al. v. Stability AI et al. (January 13, 2023)

Andersen et al. v. Stability AI et al., No. 23-cv-00201 (N.D. Calif. Jan. 13, 2023)

Artists Sarah Andersen, Kelly McKernan, and Karla Ortiz filed this class action lawsuit against generative-AI companies Stability AI, Midjourney, and DeviantArt on January 13, 2023. The lawsuit alleges that the defendants infringed their copyrights by using their artwork without permission to train AI-powered image generators to create allegedly infringing derivative works.  The lawsuit also alleges violations of 17 U.S.C. § 1202 and publicity rights, breach of contract, and unfair competition.

Getty Images v. Stability AI (February 3, 2023)

Getty Images v. Stability AI, No. 23-cv-00135-UNA (D. Del. February 23, 2023)

Getty Images has filed two lawsuits against Stability AI, one in the United Kingdom and one in the United States, each alleging both input and output copyright infringement. Getty Images owns the rights to millions of images. It is in the business of licensing rights to use copies of the images to others. The lawsuit also accuses Stability AI of falsifying, removing or altering copyright management information, trademark infringement, trademark dilution, unfair competition, and deceptive trade practices.

Stability AI has moved to dismiss the complaint filed in the U.S. for lack of jurisdiction.

Flora et al. v. Prisma Labs (February 15, 2023)

Flora et al. v. Prisma Labs, Inc., No. 23-cv-00680 (N.D. Calif. February 15, 2023)

Jack Flora and others filed a class action lawsuit against Prisma Labs for invasion of privacy. The complaint alleges, among other things, that the defendant’s Lensa app generates sexualized images from images of fully-clothed people, and that the company failed to notify users about the biometric data it collects and how it will be stored and/or destroyed, in violation of Illinois’s data privacy laws.

Young v. NeoCortext (April 3, 2023)

Young v. NeoCortext, Inc., 2023-cv-02496 (C.D. Calif. April 3, 2023)

This is a publicity rights case. NeoCortext’s Reface app allows users to paste images of their own faces over those of celebrities in photographs and videos. Kyland Young, a former cast member of the Big Brother reality television show, has sued NeoCortext for allegedly violating his publicity rights. The complaint alleges that NeoCortext has “commercially exploit[ed] his and thousands of other actors, musicians, athletes, celebrities, and other well-known individuals’ names, voices, photographs, or likenesses to sell paid subscriptions to its smartphone application, Reface, without their permission.”

NeoCortext has asserted a First Amendment defense, among others.

Walters v. Open AI (June 5, 2023)

Walters v. OpenAI, LLC, No. 2023-cv-03122 (N.D. Ga. July 14, 2023) (Complaint originally filed in Gwinnett County, Georgia Superior Court on June 5, 2023; subsequently removed to federal court)

This is a defamation action against OpenAI, the company responsible for ChatGPT. The lawsuit was brought by Mark Walters. He alleges that ChatGPT provided false and defamatory misinformation about him to journalist Fred Riehl in connection with a federal civil rights lawsuit against Washington Attorney General Bob Ferguson and members of his staff. ChatGPT allegedly stated that the lawsuit was one for fraud and embezzlement on the part of Mr. Walters. The complaint alleges that Mr. Walters was “neither a plaintiff nor a defendant in the lawsuit,” and “every statement of fact” pertaining to him in the summary of the federal lawsuit that ChatGPT prepared is false. A New York court recently addressed the questions of sanctions for attorneys who submit briefs containing citations to non-existent “precedents” that were entirely made up by ChatGPT. This is the first case to address tort liability for ChatGPT’s notorious creation of “hallucinatory facts.”

In July, 2023, Jeffrey Battle filed a complaint against Microsoft in Maryland alleging that he, too, has been defamed as a result of AI-generated “hallucinatory facts.”

P.M. et al. v. OpenAI et al. (June 28, 2023)

P.M. et al. v. OpenAI LP et al., No. 2023-cv-03199 (N.D. Calif. June 28, 2023)

This lawsuit has been brought by underage individuals against OpenAI and Microsoft. The complaint alleges the defendants’ generative-AI products ChatGPT, Dall-E and Vall-E collect private and personally identifiable information from children without their knowledge or informed consent. The complaint sets out claims for alleged violations of the Electronic Communications Privacy Act; the Computer Fraud and Abuse Act; California’s Invasion of Privacy Act and unfair competition law; Illinois’s Biometric Information Privacy Act, Consumer Fraud and Deceptive Business Practices Act, and Consumer Fraud and Deceptive Business Practices Act; New York General Business Law § 349 (deceptive trade practices); and negligence, invasion of privacy, conversion, unjust enrichment, and breach of duty to warn.

Tremblay v. OpenAI (June 28, 2023)

Tremblay v. OpenAI, Inc., No. 23-cv-03223 (N.D. Calif. June 28, 2023)

Another copyright infringement lawsuit against OpenAI relating to its ChatGPT tool. In this one, authors allege that ChatGPT is trained on the text of books they and other proposed class members authored, and facilitates output copyright infringement. The complaint sets forth claims of copyright infringement, DMCA violations, and unfair competition.

Silverman et al. v. OpenAI (July 7, 2023)

Silverman et al. v. OpenAI, No. 23-cv-03416 (N.D. Calif. July 7, 2023)

Sarah Silverman (comedian/actress/writer) and others allege that OpenAI, by using copyright-protected works without permission to train ChatGPT, committed direct and vicarious copyright infringement, violated section 17 U.S.C. 1202(b), and their rights under unfair competition, negligence, and unjust enrichment law.

Kadrey et al. v. Meta Platforms (July 7, 2023)

Kadrey et al. v. Meta Platforms, No. 2023-cv-03417 (N.D. Calif. July 7, 2023)

The same kinds of allegations as are made in Silverman v. OpenAI, but this time against Meta Platforms, Inc.

J.L. et al. v. Alphabet (July 11, 2023)

J.L. et al. v. Alphabet, Inc. et al. (N.D. Calif. July 11, 2023)

This is a lawsuit against Google and its owner Alphabet, Inc. for allegedly scraping and harvesting private and personal user information, copyright-protected works, and emails, without notice or consent. The complaint alleges claims for invasion of privacy, unfair competition, negligence, copyright infringement, and other causes of action.

On the Regulatory Front

The U.S. Copyright Office is examining the problems associated with registering copyrights in works that rely, in whole or in part, on artificial intelligence. The U.S. Federal Trade Commission (FTC) has suggested that generative-AI implicates “competition concerns.”. Lawmakers in the United States and the European Union are considering legislation to regulate AI in various ways.

Copyright Registration and Management Services

There is now an inexpensive, intelligent alternative to “copyright mills” that is creator-friendly as well as a time-saver for attorneys.

In the United States, as in most countries, it is possible to own a copyright without registering it. Copyright registration is not a prerequisite to copyright protection. Rather, a copyright comes into being when a human being fixes original, creative expression in a tangible medium (or when it is fixed in a tangible medium at a human being’s direction.) Nevertheless, there are important reasons why you should register a copyright in a work you’ve created, particularly if you live in the United States.

Reasons for registering copyrights

If you live in the United States, the most important reason for registering a copyright is that you will not be able to enforce it unless you do. As a condition of filing an infringement claim in court, the United States Copyright Act requires a copyright owner to have applied for registration and received either a certificate of registration or a denial of registration from the U.S. Copyright Office. Registration is not a prerequisite to serving a cease-and-desist letter or a DMCA take-down notice. If you want to enforce your copyright in court, though, then you will need to register it.

This is true, as well, of infringement claims filed in the new Copyright Claims Board (sometimes called the “copyright small claims court” or “CCB”). It is not necessary to have received either a registration certificate or denial letter from the Copyright Office before filing a claim with the CCB. It is necessary, however, to have at least applied for registration before filing a claim.

Prompt registration is also important. You may not be able to recover statutory damages and attorney fees in an action for copyright infringement unless you registered the copyright either within three months after first publication or before the infringement began.

Registration gives you the benefit of a legal presumption that the copyright is valid. It also gives rise to a presumption of ownership, and that all of the other facts stated in the certificate (date of creation, etc.) are true.

Registration is not only critical to enforcement; it is also an important defensive strategy. If someone else registers the work and you do not, then they get all of the benefits described above and you do not. As the original creator of a work, you do not want to find yourself in the position of being sued for “infringing” your own work.

Registration workarounds that aren’t

The “poor man’s copyright”

One dangerous myth that has been circulating for years is that simply mailing yourself a copy of your work will be enough to establish your rights in it. This is not true. Anybody can make a copy of someone else’s work and mail it to himself or herself. Even if doing that could establish a person’s rights in a work, it is still going to be necessary to register the copyright in the work in order to enforce it in the U.S. legal system. And you won’t get any of the other benefits of registration, either, unless you do.

Posting to YouTube or another Internet website

Posting a copy of a work to YouTube or another Internet website is a modern-day version of the “poor man’s copyright” myth. The best this will do, however, is provide a date and time of posting. That proves nothing about authorship, and it does not provide any of the benefits of registration.

Notary

Notarization only verifies the validity of a signature; it does not prove anything about authorship.

Having an agent, distributor or licensing agency

Having an agent or a distributor, or listing with ASCAP, for example, does not prove authorship, nor does it provide any of the benefits of registration.

Registries and databases

Some websites offer to list your work in a “registry” or other database, supposedly as a means of protecting your copyright in the work. Some of these websites border on fraud. “Registering” your work with a private company or service will not prove authorship and will not give you any of the other benefits of registration. In the United States, the benefits of registration flow only to those who register the copyrights in their works with the United States Copyright Office.

True copyright registration services

Not all online copyright registration services are scams. Some of them will actually get a customer’s copyright registered with the United States Copyright Office. It is still necessary to proceed with caution when using them, however. Here are some things to watch out for.

Per-work vs. per-application

Pay careful attention to whether service fees are charged “per work,” on one hand, or “per application,” on the other.

If you have more than one work to register, it may sometimes be possible to register them with the Copyright Office as a group rather than individually. For example, a group of up to ten unpublished works by the same author may be registered with the Office using one application and paying one filing fee. Similarly, up to 750 photographs can sometimes be registered together as a group using only one application and paying only one filing fee.

An online service that offers to register copyrights at the rate of $100 “per work” might not inform users about the Copyright Office’s group registration options. Imagine paying $75,000 plus $33,750 filing fees to register copyrights in 750 photographs when you might have done it yourself, using one application, for a $55 filing fee.

Single, standard or group application

Once you’ve selected a service whose rates are “per application” rather than “per work,” you will want to ensure that the service includes group registration options. If a service indicates that it will prepare a “single” or “standard” application, then this may mean that it will not prepare applications for group registrations. Find that out before proceeding.

GRAM and GRUW applications

If you are a musician or composer, you may be able to qualify for a significant discount on Copyright Office filing fees by filing a GRAM or GRUW application. These are special application forms that allow the registration of up to 10 unpublished songs, or up to 20 published songs on an album, using one application and paying one filing fee. They are relatively new additions to the Copyright Office’s application forms repertoire. Some registration services will not, or do not yet, work with them.

Fees

First, understand the difference between a service fee and the Copyright Office filing fee. The Copyright Office filing fee is usually going to be between $45 and $85, depending on the kind of application. When a website quotes a fee for the service it provides, the fee it quotes normally does not include the Copyright Office filing fee — unless, of course, the website expressly says so.

Online registration service companies charge different rates for their services. One attorney website I saw quoted a $500 flat fee “per work.” Apparently, he would intend to charge $5,000 to register a group of 10 works.

Other services quote a much lower fee, typically somewhere between $100 and $250, either per work or per application.

These services typically are limited to filing a registration application, and nothing more. Some of them stand behind their work. Others charge additional fees if an application is rejected and they need to do additional work to fix the problem.

RightsClick™

A new online copyright service entered the scene last year. Called RightsClick™ it boasts processing fees that are 85% lower than most other registration services. Rather than charging $100 to $500 plus the Copyright Office filing fee, RightsClick charges $15 plus the Copyright Office filing fee.

It is also one of the few services that processes applications for group registration, and is up-front and clear about the cost. A group of up to 10 unpublished works, for example, can be registered for $15, that is to say, the same low processing fee that is charged for a single application.

There are monthly subscription charges, but even adding these into the mix does not bring the cost up to anything near to what many online services are charging.

The services provided include more than copyright registration, and additional features are planned for the future.

Learn more

Because I believe this innovative new service can be a great time and money saver for attorneys who work with authors and other copyright owners, I am hosting a continuing legal education (CLE) course through EchionCLE. It will be presented by Steven Tepp and David Newhoff, the developers of RightsClick. It will include an update on registration law and a demonstration of what RightsClick can do and how it works.

This program is FREE and is open to both attorneys and non-attorneys.

EchionCLE has applied to the Minnesota Board of Continuing Legal Education for 1.0 Standard CLE credit.

The live webinar will be held on May 17, 2023.

There will be a video replay on June 1, 2023.

For more detailed information, or to register, click here.

Disclosure statement

I do not own or have any interest in RightsClick. I have not been paid and have not received anything of value in connection with this post. This post is not an endorsement or advertisement for RightsClick or the services it offers. It is simply an announcement of what appears to me to be a service that could be of considerable benefit to authors, creators, publishers and attorneys.

Copyright owners prevail in Internet Archive lawsuit

A federal district court has ruled in favor of book publishers in their copyright infringement lawsuit against Internet Archives

In June, 2020 four book publishers filed a copyright infringement lawsuit against Internet Archive. The publishers asserted that the practice of scanning books and lending digital copies of them to online users infringed their copyrights in the books. On Friday, March 24, 2023, a federal district court judge agreed, granting the publishers’ motion for summary judgment.

The Internet Archive operation

Internet Archive is a nonprofit organization that has undertaken several archiving projects. For example, it created the “Wayback Machine,” an online archive of public webpages. This lawsuit involves another of its projects, namely, the creation of a digital archive of books. Some of these are in the public domain. Also included in this archive, however, are over 3 million books that are protected by copyright. The judge determined that 33,000 of them belong to the plaintiffs in the lawsuit.

According to the Order granting summary judgment, after scanning the books, Internet Archive made them publicly available online for free, without the permission of the copyright owners.

“Fair Use”

According to the Order, Internet Archive did not dispute that it violated copyright owners’ exclusive rights to reproduce the works, to make derivative works based on them, to distribute their works, to publicly perform them (Internet Archive offered a “read aloud” function on it website), and to display them (in this case, on a user’s browser.) In short, the Order determined that the operation violated all five of the exclusive rights of copyright owners protected by the United States Copyright Act (17 U.S.C. sec. 106).

Internet Archive asserted a “fair use” defense.

In previous cases involving massive operations to scan and digitize millions of books, Authors Guild v. Google., Inc. and Authors Guild v. HathiTrust, judicial analyses resulted in “fair use” determinations unfavorable to copyright owners. Internet Archive, of course, invited the judge to do the same thing here. The judge declined the invitation.

The judge distinguished this case from its predecessors by ruling that unlike the uses made of copyrighted works in those cases, the use in this case was not transformative. For example, Google had digitized the entire text of books in order to create a searchable index of books. “There is nothing transformative,” however, about copying and distributing the entire texts of books to the public, the judge declared.

The judge observed that Google reproduces and displays to the public only enough context surrounding the searched term to help a reader evaluate whether the book falls within the range of the reader’s interest. The Court of Appeals in Google had warned that “[i]f Plaintiff’s claim were based on Google’s converting their books into a digitized form and making that digitized version accessible to the public,” then the “claim [of copyright infringement] would be strong.”

The judge also determined that the alleged benefit to the public of having access to the entire text of books without having to pay for them “cannot outweigh the market harm to the publishers.”

Ultimately, the judge concluded that all four “fair use” factors (character and purpose of the use, nature of the work, amount and substantiality of the portion copied, and the effect on the market for the work) weighed against a finding of fair use.

What’s next?

Internet Archive apparently intends to appeal the decision. In the meantime, it appears that it will continue other kinds of digitized book services, such as interlibrary loans, citation linking, access for the print-disabled , text and data mining, purchasing e-books, and receiving and preserving books.

New AI Copyright Guidance

The Copyright Office is providing guidance to copyright applicants who wish to register works with AI-generated content in them.

On Thursday, March 16, 2023, the United States Copyright Office published new guidance regarding the registration of copyrights in AI-generated material. in the Federal Register. Here is the tl;dr version.

The Problem

Artificial intelligence (AI) technologies are now capable of producing content that would be considered expressive works if created by a human being. These technologies “train” on mass quantities of existing human-authored works and use patterns detected in them to generate like content. This creates a thorny question about authorship: To what extent can a person who uses AI technology to generate content be considered the “author” of such content?

It isn’t a hypothetical problem. The Copyright Office has already started receiving applications for registration of copyrights in works that are either wholly or partially AI-generated.

The U.S. Copyright Act gives the Copyright Office power to determine whether and what kinds of additional information it may need from a copyright registration applicant in order to evaluate the existence, ownership and duration of a purported copyright. On March 16, 2023, the Office exercised that power by publishing Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence in the Federal Register. [Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (March 16, 2023)]

Sorry, HAL, No Registration for You

Consistent with judicial rulings, the U.S. Copyright Office takes the position that only material that is created by a human being is protected by copyright. In other words, copyrights only protect human authorship. If a monkey can’t own a copyright in a photograph and an elephant can’t own a copyright in a portrait it paints, a computer-driven technology cannot own a copyright in the output it generates. Sorry, robots; it’s a human’s world.

As stated in the Compendium of Copyright Office Practices:

The Copyright Office “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices sec. 313.2 (3d ed. 2021)

Partially AI-Generated Works

A work that is the product of a human being’s own original conception, to which s/he gave visible form clearly has a human author. A work that is entirely the result of mechanical reproduction clearly does not. Things get murkier when AI technology is used to generate content to which a human being applies some creativity.

According to the new guidance, merely prompting an AI technology to generate a poem, drawing or the like, without more, is not enough to establish human authorship if the AI technology determines the expressive elements of its output. This kind of content is not protected by copyright and a registration applicant therefore will need to disclaim it in the application.

On the other hand, if a human being selects and arranges AI-generated content, the selection and arrangement may be protected by copyright even if the content itself is not. Similarly, if a human being makes significant modifications to AI-generated content, then those modifications may receive copyright protection. In all cases, of course, the selection, arrangement or modification must be sufficiently creative in order to qualify for copyright protection.

Disclosure required

The new guidance imposes a duty on copyright registration applicants to disclose the inclusion of AI-generated content in any work submitted for registration.

Standard application

If you use AI technology to any extent in creating the work, you will need to use the Standard application, not the Single application, to register the copyright in it.

Claims and disclaimers

The applicant will need to describe the human author’s contributions to the work in the “Author Created” field of the application. A claim should only be made in this.

Any significant AI-generated content must be explicitly excluded (disclaimed), in the “Limitations of the Claim” section of the application, in the “Other” field, under the “Material Excluded” heading.

Previously filed applications

If you have already filed an application for a work that includes AI-generated material, you will need to make sure that it makes an adequate disclosure about that. The newly-issued guidance says you should contact the Copyright Office’s Public Information Office and report that you omitted AI information from the application. This will cause a notation to the record to be made. When an examiner sees the notation, s/he may contact you to obtain additional information if necessary.

If a registration has already been issued, you should submit a supplemntary registration form to correct it. Failing to do that could result in your registration being cancelled, if the Office becomes aware that information essential to its evaluation of registrability has been omitted. In addition, a court may ignore a registration in an infringement action if it concludes that you knowingly provided the Copyright Office with false information.

Need help with a copyright application or registration?

Contact attorney Tom James.

A Recent Entrance to Complexity

The United States Copyright Office recently reaffirmed its position that it will not register AI-generated content, because it is not created by a human. The rule is easy to state; the devil is in the details. Attorney Thomas James explains.

Last year, the United States Copyright Office issued a copyright registration to Kristina Kashtanova for the graphic novel, Zarya of the Dawn. A month later, the Copyright Office issued a notice of cancellation of the registration, along with a request for additional information.

The Copyright Office, consistent with judicial decisions, takes the position that copyright requires human authorship. The Office requested additional information regarding the creative process that resulted in the novel because parts of it were AI-generated. Kashtanova complied with the request for additional information.

This week, the Copyright Office responded with a letter explaining that the registration would be cancelled, but that a new, more limited one will be issued. The Office explained that its concern related to the author’s use of Midjourney, an AI-powered image generating tool, to generate images used in the work:

Because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output”

U.S. Copyright Office letter

The Office concluded that the text the author wrote, as well as the author’s selection, coordination and arrangement of written and visual elements, are protected by copyright, and therefore may be registered. The images generated by Midjourney, however, would not be registered because they were “not the product of human authorship.” The new registration will cover only the text and editing components of the work, not the AI-generated images.

A Previous Entrance to Paradise

Early last year, the Copyright Office refused copyright registration for an AI-generated image. Steven Thaler had filed an application to register a copyright in an AI-generated image called “A Recent Entrance to Paradise.” He listed himself as the copyright owner. The Copyright Office denied registration on the grounds that the work lacked human authorship. Thaler filed a lawsuit in federal court seeking to overturn that determination. The lawsuit is still pending. It is currently at the summary judgment stage.

The core issue

The core issue, of course, is whether a person who uses AI to generate content such as text or artwork can claim copyright protection in the content so generated. Put another way, can a user who deploys artificial intelligence to generate a seemingly expressive work (such as artwork or a novel) claim authorship?

This question is not as simple as it may seem. There can be different levels of human involvement in the use of an AI content generating mechanism. At one extreme, there are programs like “Paint,” in which users provide a great deal of input. These kinds of programs may be analogized to paintbrushes, pens and other tools that artists traditionally have used to express their ideas on paper or canvas. Word processing programs are also in this category. It is easy to conclude that the users of these kinds of programs are the authors of works that may be sufficiently creative and original to receive copyright protection.

At the other end of the spectrum are AI services like DALL-E and ChatGPT. Text and images can be generated by these systems with minimal human input. If the only human input is a user’s directive to “Write a story” or “Draw a picture,” then it would be difficult to claim that the author contributed any creative expression. That is to say, it would be difficult to claim that the user authored anything.

Peering into the worm can

The complicating consideration with content-generative AI mechanisms is that they have the potential to allow many different levels of user involvement in the generation of output. The more details a user adds to the instructions s/he gives to the machine, the more it begins to appear that the user is, in fact, contributing something creative to the project.

Is a prompt to “Write a story about a dog” a sufficiently creative contribution to the resulting output to qualify the user as an “author”? Maybe not. But what about, “Write a story about a dog who joins a traveling circus”? Or “Write a story about a dog named Pablo who joins a traveling circus”? Or “Write a story about a dog with a peculiar bark that begins, ‘Once upon a time, there was a dog named Pablo who joined a circus,’ and ends with Pablo deciding to return home”?

At what point along the spectrum of user-provided detail does copyright protectable authorship come into existence?

A question that is just as important to ask is: How much, if at all, should the Copyright Office involve itself with ascertaining the details of the creative process that were involved in a work?

In a similar vein, should copyright registration applicants be required to disclose whether their works contain AI-generated content? Should they be required to affirmatively disclaim rights in elements of AI-generated content that are not protected by copyright?

Expanding the Rule of Doubt

Alternatively, should the U.S. Copyright Office adopt something like a Rule of Doubt when copyright is claimed in AI-generated content? The Rule of Doubt, in its current form, is the rule that the U.S. Copyright Office will accept a copyright registration of a claim containing software object code, even though the Copyright Office is unable to verify whether the object code contains copyrightable work. If effect, if the applicant attests that the code is copyrightable, then the Copyright Office will assume that it is and will register the claim. Under 37 C.F.R. § 202.20(c)(2)(vii)(B), this may be done when an applicant seeks to register a copyright in object code rather than source code. The same is true of material that is redacted to protect a trade secret.

When the Office issues a registration under the Rule of Doubt, it adds an annotation to the certificate and to the public record indicating that the copyright was registered under the Rule of Doubt.

Under the existing rule, the applicant must file a declaration stating that material for which registration is sought does, in fact, contain original authorship.

This approach allows registration but leaves it to courts (not the Copyright Office) to decide on a case-by-case basis whether material for which copyright is claimed contains copyrightable authorship.  

Expanding the Rule of Doubt to apply to material generated at least in part by AI might not be the most satisfying solution for AI users, but it is one that could result in fewer snags and delays in the registration process.

Conclusion

The Copyright Office has said that it soon will be developing registration guidance for works created in part using material generated by artificial intelligence technology. Public notices and events relating to this topic may be expected in the coming months.

Need help with a copyright matter? Contact attorney Thomas James.

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