Where AI and property law intersect; Arizona State University (ASU) News, April 5, 2024

  Dolores Tropiano, Arizona State University (ASU) News; Where AI and property law intersect

"Artificial intelligence is a powerful tool that has the potential to be used to revolutionize education, creativity, everyday life and more.

But as society begins to harness this technology and its many uses — especially in the field of generative AI — there are growing ethical and copyright concerns for both the creative industry and legal sector.

Tyson Winarski is a professor of practice with the Intellectual Property Law program in Arizona State University’s Sandra Day O’Connor College of Law. He teaches an AI and intellectual property module within the course Artificial Intelligence: Law, Ethics and Policy, taught by ASU Law Professor Gary Marchant.

“The course is extremely important for attorneys and law students,” Winarski said. “Generative AI is presenting huge issues in the area of intellectual property rights and copyrights, and we do not have definitive answers as Congress and the courts have not spoken on the issue yet.”"

George Carlin’s Estate Reaches Settlement After A.I. Podcast; The New York Times, April 2, 2024

 Christopher Kuo , The New York Times; George Carlin’s Estate Reaches Settlement After A.I. Podcast

"The estate of the comedian George Carlin reached a settlement on Monday with the makers of a podcast who had said they had used artificial intelligence to impersonate Mr. Carlin for a comedy special...

Mr. Carlin’s estate filed the suit in January, saying that Mr. Sasso and Mr. Kultgen, hosts of the podcast “Dudesy,” had infringed on the estate’s copyrights by training an A.I. algorithm on five decades of Mr. Carlin’s work for the special “George Carlin: I’m Glad I’m Dead,” which was posted on YouTube. The lawsuit also said they had illegally used Mr. Carlin’s name and likeness."

A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression; AP, March 28, 2024

Colleen Barry, AP; A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression

"The decisions challenge a widely held practice that intellectual property rights are protected for a specified period before entering the public domain — the artist’s lifetime plus 70 years, according to the Berne Convention signed by more than 180 countries including Italy.

More broadly, the decisions raise the question of whether institutions should be the arbiters of taste, and to what extent freedom of expression is being limited...

Court cases have debated whether Italy’s law violates a 2019 European Union directive stating that any artwork no longer protected by copyright falls into the public domain, meaning that “everybody should be free to make, use and share copies of that work.”

The EU Commission has not addressed the issue, but a spokesman told the AP that it is currently checking “conformity of the national laws implementing the copyright directive” and would look at whether Italy’s cultural heritage code interferes with its application."

Amicus Briefs Filed in Internet Archive Copyright Case; Publishers Weekly, March 25, 2024

 Andrew Albanese , Publishers Weekly; Amicus Briefs Filed in Internet Archive Copyright Case

"Internet Archive lawyers filed their principal appeal brief on December 15, and 11 amicus briefs were filed in support of the Internet Archive a week later, in December, representing librarians and library associations, authors, public advocacy groups, law professors, and IP scholars, although some of the IA amicus briefs are presented as neutral.

The briefs are the latest development in the long-running copyright infringement case and come a year after a ruling by judge John G. Koeltl on March 24, 2023 that emphatically rejected the IA’s fair use defense, finding the scanning and lending of print library books under a protocol known as “controlled digital lending” to be copyright infringement.

The Internet Archive’s reply brief is now due on April 19, and oral arguments are expected to be set for this fall."

Google hit with $270M fine in France as authority finds news publishers’ data was used for Gemini; TechCrunch, March 20, 2024

 Natasha Lomas, Romain Dillet , TechCrunch; Google hit with $270M fine in France as authority finds news publishers’ data was used for Gemini

"In a never-ending saga between Google and France’s competition authority over copyright protections for news snippets, the Autorité de la Concurrence announced a €250 million fine against the tech giant Wednesday (around $270 million at today’s exchange rate).

According to the competition watchdog, Google disregarded some of its previous commitments with news publishers. But the decision is especially notable because it drops something else that’s bang up-to-date — by latching onto Google’s use of news publishers’ content to train its generative AI model Bard/Gemini.

The competition authority has found fault with Google for failing to notify news publishers of this GenAI use of their copyrighted content. This is in light of earlier commitments Google made which are aimed at ensuring it undertakes fair payment talks with publishers over reuse of their content."

Introducing CopyrightCatcher, the first Copyright Detection API for LLMs; Patronus AI, March 6, 2024

 Patronus AI; Introducing CopyrightCatcher, thefirst Copyright Detection API for LLMs

"Managing risks from unintended copyright infringement in LLM outputs should be a central focus for companies deploying LLMs in production.

• On an adversarial copyright test designed by Patronus AI researchers, we found that state-of-the-art LLMs generate copyrighted content at an alarmingly high rate 😱
• OpenAI’s GPT-4 produced copyrighted content on 44% of the prompts.
• Mistral’s Mixtral-8x7B-Instruct-v0.1 produced copyrighted content on 22% of the prompts.
• Anthropic’s Claude-2.1 produced copyrighted content on 8% of the prompts.
• Meta’s Llama-2-70b-chat produced copyrighted content on 10% of the prompts.
• Check out CopyrightCatcher, our solution to detect potential copyright violations in LLMs. Here’s the public demo, with open source model inference powered by Databricks Foundation Model APIs. 🔥

LLM training data often contains copyrighted works, and it is pretty easy to get an LLM to generate exact reproductions from these texts1. It is critical to catch these reproductions, since they pose significant legal and reputational risks for companies that build and use LLMs in production systems2. OpenAI, Anthropic, and Microsoft have all faced copyright lawsuits on LLM generations from authors3, music publishers4, and more recently, the New York Times5.

To check whether LLMs respond to your prompts with copyrighted text, you can use CopyrightCatcher. It detects when LLMs generate exact reproductions of content from text sources like books, and highlights any copyrighted text in LLM outputs. Check out our public CopyrightCatcher demo here!

Researchers tested leading AI models for copyright infringement using popular books, and GPT-4 performed worst; CNBC, March 6, 2024

 Hayden Field, CNBC; Researchers tested leading AI models for copyright infringement using popular books, and GPT-4 performed worst

"The company, founded by ex-Meta researchers, specializes in evaluation and testing for large language models — the technology behind generative AI products.

Alongside the release of its new tool, CopyrightCatcher, Patronus AI released results of an adversarial test meant to showcase how often four leading AI models respond to user queries using copyrighted text.

The four models it tested were OpenAI’s GPT-4, Anthropic’s Claude 2, Meta’s Llama 2 and Mistral AI’s Mixtral.

“We pretty much found copyrighted content across the board, across all models that we evaluated, whether it’s open source or closed source,” Rebecca Qian, Patronus AI’s cofounder and CTO, who previously worked on responsible AI research at Meta, told CNBC in an interview.

Qian added, “Perhaps what was surprising is that we found that OpenAI’s GPT-4, which is arguably the most powerful model that’s being used by a lot of companies and also individual developers, produced copyrighted content on 44% of prompts that we constructed.”"

Public Symposium on AI and IP; United States Patent and Trademark Office (USPTO), Wednesday, March 27, 2024 10 AM - 3 PM PT/1 PM - 6 PM ET

 United States Patent and Trademark Office (USPTO); Public Symposium on AI and IP

"The United States Patent and Trademark Office (USPTO) Artificial Intelligence (AI) and Emerging Technologies (ET) Partnership will hold a public symposium on intellectual property (IP) and AI. The event will take place virtually and in-person at Loyola Law School, Loyola Marymount University, in Los Angeles, California, on March 27, from 10 a.m. to 3 p.m. PT. 

The symposium will facilitate the USPTO’s efforts to implement its obligations under the President’s Executive Order (E.O.) 14110 “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The event will include representation from the Copyright Office, build on previous AI/Emerging Technologies (ET) partnership events, and feature panel discussions by experts in the field of patent, trademark, and copyright law that focus on:

1. A comparison of copyright and patent law approaches to the type and level of human contribution needed to satisfy authorship and inventorship requirements;
2. Ongoing copyright litigation involving generative AI; and 
3. A discussion of laws and policy considerations surrounding name, image, and likeness (NIL) issues, including the intersection of NIL and generative AI.

This event is free and open to the public, but in-person attendance is limited, so register early"

The Intercept, Raw Story and AlterNet sue OpenAI for copyright infringement; The Guardian, February 28, 2024

 Nick Robins-Early, The Guardian ; The Intercept, Raw Story and AlterNet sue OpenAI for copyright infringement

"OpenAI and Microsoft are facing a fresh round of lawsuits from news publishers over allegations that their generative artificial intelligence products violated copyright laws and illegally trained by using journalists’ work. Three progressive US outlets – the Intercept, Raw Story and AlterNet – filed suits in Manhattan federal court on Wednesday, demanding compensation from the tech companies.

The news outlets claim that the companies in effect plagiarized copyright-protected articles to develop and operate ChatGPT, which has become OpenAI’s most prominent generative AI tool. They allege that ChatGPT was trained not to respect copyright, ignores proper attribution and fails to notify users when the service’s answers are generated using journalists’ protected work."

How to Think About Remedies in the Generative AI Copyright Cases; LawFare, February 15, 2024

  Pamela Samuelson, LawFare; How to Think About Remedies in the Generative AI Copyright Cases

"So far, commentators have paid virtually no attention to the remedies being sought in the generative AI copyright complaints. This piece shines a light on them."

On Copyright, Creativity, and Compensation; Reason, February 12, 2024

 DAVID POST, Reason; On Copyright, Creativity, and Compensation

"Some of you may have seen the article by David Segal in the Sunday NY Times several weeks ago [available here] about a rather sordid copyright fracas in which I have been embroiled over the past few months...

What to make of all this? I am not oblivious to the irony of being confronted with this problem after having spent 30 years or so, as a lawyer and law professor, reflecting on and writing about the many mysteries of copyright policy and copyright law in the Internet Age.

Here are a few things that strike me as interesting (and possibly important) in this episode."

European Publishers Praise New EU AI Law; Publishers Weekly, February 2, 2024

Ed Nawotka, Publishers Weekly; European Publishers Praise New EU AI Law

"The Federation of European Publishers (FEP) was quick to praise the passage of new legislation by the European Union that, among its provisions, requires "general purpose AI companies" to respect copyright law and have policies in place to this effect.

FEP officials called the EU Artificial Intelligence (AI) Act, which passed on February 2, the "world’s first concrete regulation of AI," and said that the legislation seeks to "ensure the ethical and human-centric development of this technology and prevent abusive or illegal practices law, which also demands transparency about what data is being used in training the models.""

The economy and ethics of AI training data; Marketplace.org, January 31, 2024

Matt Levin, Marketplace.org;  The economy and ethics of AI training data

"Maybe the only industry hotter than artificial intelligence right now? AI litigation. 

Just a sampling: Writer Michael Chabon is suing Meta. Getty Images is suing Stability AI. And both The New York Times and The Authors Guild have filed separate lawsuits against OpenAI and Microsoft. 

At the heart of these cases is the allegation that tech companies illegally used copyrighted works as part of their AI training data. 

For text focused generative AI, there’s a good chance that some of that training data originated from one massive archive: Common Crawl. 

“Common Crawl is the copy of the internet. It’s a 17-year archive of the internet. We make this freely available to researchers, academics and companies,” said Rich Skrenta, who heads the nonprofit Common Crawl Foundation."

California copyright-case leaves tattoo artists in limbo; Fox26 Houston, January 29, 2024

 Tom Zizka, Fox26 Houston ; California copyright-case leaves tattoo artists in limbo

"Patent and Copyright expert Joh Rizvi, known at The Patent Professor, says the California case never got to the issue of whether images reproduced in tattoos are fair to use as art and expression. 

"What I find is the more interesting question is, 'Is a tattoo different? Is this free speech?'" he wonders.

Fair Use has been the subject of countless lawsuits, and Rizvi says this one leaves artists in a legal gray area, with no precedent."

Lawyers weigh strength of copyright suit filed against BigLaw firm; Rhode Island Lawyers Weekly, January 29, 2024

 Pat Murphy , Rhode Island Lawyers Weekly; Lawyers weigh strength of copyright suit filed against BigLaw firm

"Jerry Cohen, a Boston attorney who teaches IP law at Roger Williams University School of Law, called the suit “not so much a copyright case as it is a matter of professional responsibility and respect.”"

Library Copyright Alliance Principles for Copyright and Artificial Intelligence; Library Copyright Alliance (LCA), American Library Association (ALA), Association of Research Libraries (ARL), July 10, 2023

Library Copyright Alliance (LCA), American Library Association (ALA), Association of Research Libraries (ARL); Library Copyright Alliance Principles for Copyright and Artificial Intelligence

"The existing U.S. Copyright Act, as applied and interpreted by the Copyright Office and the courts, is fully capable at this time to address the intersection of copyright and AI without amendment.

• Based on well-established precedent, the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.

  • Because tens—if not hundreds—of millions of works are ingested to create an LLM, the contribution of any one work to the operation of the LLM is de minimis; accordingly, remuneration for ingestion is neither appropriate nor feasible.

  • Further, copyright owners can employ technical means such as the Robots Exclusion Protocol to prevent their works from being used to train AIs.

• If an AI produces a work that is substantially similar in protected expression to a work that was ingested by the AI, that new work infringes the copyright in the original work.

• If the original work was registered prior to the infringement, the copyright owner of the original work can bring a copyright infringement action for statutory damages against the AI provider and the user who prompted the AI to produce the substantially similar work.

• Applying traditional principles of human authorship, a work that is generated by an AI might be copyrightable if the prompts provided by the user sufficiently controlled the AI such that the resulting work as a whole constituted an original work of human authorship.

AI has the potential to disrupt many professions, not just individual creators. The response to this disruption (e.g., not be treated as a means for addressing these broader societal challenges. support for worker retraining through institutions such as community colleges and public libraries) should be developed on an economy-wide basis, and copyright law should not be treated as a means for addressing these broader societal challenges.

AI also has the potential to serve as a powerful tool in the hands of artists, enabling them to express their creativity in new and efficient ways, thereby furthering the objectives of the copyright system."

Training Generative AI Models on Copyrighted Works Is Fair Use; ARL Views, January 23, 2024

 Katherine Klosek, Director of Information Policy and Federal Relations, Association of Research Libraries (ARL), and Marjory S. Blumenthal, Senior Policy Fellow, American Library Association (ALA) Office of Public Policy and Advocacy |, ARL Views; Training Generative AI Models on Copyrighted Works Is Fair Use

"In a blog post about the case, OpenAI cites the Library Copyright Alliance (LCA) position that “based on well-established precedent, the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.” LCA explained this position in our submission to the US Copyright Office notice of inquiry on copyright and AI, and in the LCA Principles for Copyright and AI.

LCA is not involved in any of the AI lawsuits. But as champions of fair use, free speech, and freedom of information, libraries have a stake in maintaining the balance of copyright law so that it is not used to block or restrict access to information. We drafted the principles on AI and copyright in response to efforts to amend copyright law to require licensing schemes for generative AI that could stunt the development of this technology, and undermine its utility to researchers, students, creators, and the public. The LCA principles hold that copyright law as applied and interpreted by the Copyright Office and the courts is flexible and robust enough to address issues of copyright and AI without amendment. The LCA principles also make the careful and critical distinction between input to train an LLM, and output—which could potentially be infringing if it is substantially similar to an original expressive work.

On the question of whether ingesting copyrighted works to train LLMs is fair use, LCA points to the history of courts applying the US Copyright Act to AI."

Richard Prince to Pay Photographers Who Sued Over Copyright; The New York Times, January 26, 2024

Matt Stevens, The New York Times; Richard Prince to Pay Photographers Who Sued Over Copyright

"The artist Richard Prince agreed to pay at least $650,000 to two photographers whose images he had incorporated in his own work, ending a long-running copyright dispute that had been closely monitored by the art world...

Brian Sexton, a lawyer for Prince, said the artist wanted to protect free expression and have copyright law catch up to changing technology...

Marriott said the judgments showed that copyright law still provided meaningful protection to creators and that the internet was not a copying free-for-all.

“There is not a fair use exception to copyright law that applies to the famous and another that applies to everyone else,” he said."

Artificial Intelligence Law - Intellectual Property Protection for your voice?; JDSupra, January 22, 2024

 Steve Vondran, JDSupra ; Artificial Intelligence Law - Intellectual Property Protection for your voice?

"With the advent of AI technology capable of replicating a person's voice and utilizing it for commercial purposes, several key legal issues are likely to emerge under California's right of publicity law. The right of publicity refers to an individual's right to control and profit from their own name, image, likeness, or voice.

Determining the extent of a person's control over their own voice will likely become a contentious legal matter given the rise of AI technology. In 2024, with a mere prompt and a push of a button, a creator can generate highly accurate voice replicas, potentially allowing companies to utilize a person's voice without their explicit permission for example using a AI generated song in a video, or podcast, or using it as a voice-over for a commercial project. This sounds like fun new technology, until you realize that in states like California where a "right of publicity law" exists a persons VOICE can be a protectable asset that one can sue to protect others who wrongfully misuse their voice for commercial advertising purposes.

This blog will discuss a few new legal issues I see arising in our wonderful new digital age being fueled by the massive onset of Generative AI technology (which really just means you input prompts into an AI tool and it will generate art, text, images, music, etc."

‘Who Owns This Sentence?’ Increasingly, Who Knows?; The New York Times, January 24, 2024

 Alexandra Jacobs, The New York Times ; ‘Who Owns This Sentence?’ Increasingly, Who Knows?

"David Bellos and Alexandre Montagu’s surprisingly sprightly history “Who Owns This Sentence?” arrives with uncanny timing...

They sort out the difference between plagiarism, a matter of honor debated since ancient times (and a theme, tellingly, of many recent novels); copyright, a concern of modern law and, crucially, lucre (“the biggest money machine the world has ever seen”); and trademark. If I wanted a picture of Smokey Bear to run with this article, for instance — and I very much do — The New York Times would have to fork up."...

They themselves have a wry way with technical material; this is less Copyright for Dummies, like that endlessly extended, imitatedand spoofed series, than for wits. Discouraged by their publisher from naming a chapter title after the Beatles’ “All You Need Is Love,” the authors deftly illustrate this “absurd” circumstance by only describing in close identifiable detail the band and the song."