AEON Law, JD Supra; What’s Happening with AI and Copyright Law
"Not surprisingly, a lot is happening at the intersection of artificial intelligence (AI) and intellectual property (IP) law.
Here’s a roundup of some recent developments in the area of copyright law and AI.
Copyright Office Denies AI Security Research Exemption under DMCA...
Former OpenAI Employee Says It Violates Copyright Law...
Blade Runner Production Company Sues Tesla for AI-Aided Copyright Infringement"
Shiva Stella , Public Knowledge; Public Knowledge, iFixit Free the McFlurry, Win Copyright Office DMCA Exemption for Ice Cream Machines
"Today, the U.S. Copyright Office partially granted an exemption requested by Public Knowledge and iFixit to allow people to circumvent digital locks in order to repair commercial and industrial equipment. The Office did not grant the full scope of the requested exemption, but did grant an exemption specifically allowing for repair of retail-level food preparation equipment – including soft serve ice cream machines similar to those available at McDonald’s. The Copyright Office reviewed the request as part of its 1201 review process, which encourages advocates and public interest groups to present arguments for exemption to the Digital Millennium Copyright Act.
Section 1201 of the DMCA makes it illegal to bypass a digital lock that protects a copyrighted work, such as a device’s software, even when there is no copyright infringement. Every three years, the Copyright Office reviews exemption requests and issues recommendations to the Librarian of Congress on granting certain exceptions to Section 1201. The recommendations go into effect once approved by the Librarian of Congress."
Isaiah Poritz , Bloomberg Law; OpenAI Faces Early Appeal in First AI Copyright Suit From Coders
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Judge Jon S. Tigar granted the programmers’ request for a mid-case turn to the US Court of Appeals for the Ninth Circuit, which must determine whether OpenAI’s copying of open-source code to train its AI model without proper attribution to the programmers could be a violation of the Digital Millennium Copyright Act...
The programmers argued that Copilot fails to include authorship and licensing terms when it outputs code. Unlike other lawsuits against AI companies, the programmers didn’t allege that OpenAI and GitHub engaged in copyright infringement, which is different from a DMCA violation."
LUKE HOGG , Reason; How John Deere Hijacked Copyright Law To Keep You From Tinkering With Your Tractor
"For nearly 25 years, Section 1201 has been hanging over the developers and distributors of tools that give users more control over the products they own. The ways in which John Deere and other corporations have used the copyright system is a glaring example of regulatory capture in action, highlighting the absurdity of a system where owning a product doesn't necessarily convey the right to fully control it. There are certainly circumstances where the manufacturers are justified in protecting their products from tampering, but such cases should be handled through warranty nullification and contract law, not through exorbitant fines and lengthy prison sentences."
Ernesto Van der Sar, TorrentFreak; U.S. Copyright Office Consultation Triggers Massive “Upload Filter” Opposition
"Late 2020, Senator Thom Tillis released a discussion draft of the “Digital Copyright Act” (DCA), which aims to be a successor to the current DMCA.
The DCA hints at far-reaching changes to the way online intermediaries approach the piracy problem. Among other things, these services would have to ensure that pirated content stays offline after it’s taken down once.
This “takedown and staydown’ approach relies on technical protection tools, which include upload filters. This is a sensitive subject that previously generated quite a bit of pushback when the EU drafted its Copyright Directive.
To gauge the various options and viewpoints, the Copyright Office launched a series of consultations on the various technical tools that can help to detect and remove pirated content from online platforms.
This effort includes a public consultation where various stakeholders and members of the public were invited to share their thoughts, which they did en masse."
"Copyrights: Even in the digital age, you must respect them. Donald Trump Jr.’s controversial Skittles image that was tweeted last week has been taken down after a report from the copyright holder, according to a message that now replaces the photo."
"THE CALL FOR copyright reform in America has grown so loud that Congress has finally heard it. Lawmakers have ordered a slate of studies to look into how to fix what has become a broken system, and activists are cautiously optimistic that this could be the first step toward reform. The source of the fracture? The Digital Millennium Copyright Act. The DMCA was passed in 1998 as an anti-piracy statute effectively making it illegal to circumvent copy protections designed to prevent pirates from duplicating digital copyrighted works and selling or freely distributing them. It also makes it illegal to manufacture or distribute tools or techniques for circumventing copy controls. But in reality the controversial law’s effects have been much broader by allowing game developers, music and film companies and others to keep a tight control on how consumers use their copyrighted works, preventing them in some cases from making copies of their purchased products for their own use or from jailbreaking smartphones and other devices to use them in ways the manufacturers dislike. The DMCA has two problematic sections: section 1201, which deals with the circumvention of copy-protections, and section 512, which allows a copyright holder to send a so-called takedown notice to web sites and others believed to be infringing a copyright."
"Censorship by copyright The motivation of Ashraf can only be guessed at, but censorship using the DMCA is common online. The act allows web hosts a certain amount of immunity from claims of copyright infringement through what is known as the “safe harbour” rules: in essence, a host isn’t responsible for hosting infringing material provided they didn’t know about it when it went up, and took it down as soon as they were told about it. In practice, however, this means that web hosts (and the term is broadly interpreted, meaning sites like YouTube, Twitter and Google count) are forced to develop a hair-trigger over claims of copyright infringement, assuming guilt and asking the accused to prove their innocence. As such, a very easy way to remove something from the internet is to accuse its creator of infringing copyright. Worse, the potential downside of such a false claim is minimal: the accused would have to first file a counterclaim, proving they own the copyright; then file a private lawsuit, and prove material damage; and then track down the offending party to actually recover any monies granted by the court. That doesn’t happen all that often. But in recent years, big web companies have started funding lawsuits themselves, to fill the gap in the law and tilt the scales a bit further in favour of content creators wrongly accused."
"Three of America's sharpest copyright scholars have released a landmark study of the impact of copyright takedowns on free expression in America: Notice and Takedown in Everyday Practice, by Jennifer Urban (UC Berkeley), Joe Karaganis (Columbia), and Brianna L. Schofiel (UC Berkeley) uses detailed surveys and interviews and a random sample from over 100,000,000 takedown notices to analyze the proportion of fraudulent, malformed or otherwise incorrect acts of censorship undertaken in copyright's name, using the Digital Millennium Copyright Act's takedown procedure. The DMCA is nearly 20 years old, and even before it was passed into law, virtually everyone who was paying attention said that creating a system that allows anything online to be censored through copyright infringement accusations, without due process or even penalties for getting it wrong, would get us into trouble. Now the evidence is in, and it couldn't be more damning."
"In early September, someone downloaded my video of Cleo, stripped it of all identifying information, changed the title from “Cleo on Equality” to “Wisdom of a 4-Year-Old”, and re-uploaded it to YouTube, passing it off as his or her own video. A woman in Amsterdam posted an embedded version of the stolen video to her Facebook page, from which it went viral. Within a matter of days, the stripped-down version of the video had been shared over 80,000 times. I only learned about it when the pirated video began appearing in the news feed of people who recognized Cleo and noticed that it was not linked to any of my accounts. I felt sick on multiple levels. I have always known, of course, that the mere act of uploading a video to any digital site means potentially losing control over that content. But now it had happened, and even though the shares appeared to be harmless — approving, even — it was still terrifying. What if someone decided to do something creepy with it? There was also a part of me that saw all the comments lauding Cleo’s grasp of acceptance, and I wanted those people to be linked back to my anti-bullying work. I missed the opportunity to share what I do for a living with a wide audience. I was sad and confused. Was I upset because the video was out there being viewed by tons of strangers, or was I upset because it was out there and I wasn’t getting credit? Both, probably... I knew I had rights under the Digital Millennium Copyright Act. Since I speak to students and teachers all the time about good digital citizenship, I knew what steps to take next: • Do not retaliate against someone online • Take a screen shot and record the evidence • Use this online form to report the violation to Facebook. • Use this online form to report a copyright infringement on YouTube."
