Roy Kaufman’s Post

Okay people. Here's what I find to be the most interesting part of Judge Orrick's ruling (and the one that hasn't received the attention it deserves). And it's important for ANY COMPANY that provides generative AI tools based on the tools of others (like Stability AI). BOTTOM LINE: THE COURT OPENED THE DOOR TO POTENTIAL "SECONDARY LIABILITY" for the use of the infringing generative AI products of others! (I've read the entire Court ruling - and am an IP attorney by trade - so feel that I can convey the issues accurately). Specifically, the Judge addressed whether the copyright infringement claims against DeviantArt, Inc. could go forward and survive its Motion to Dismiss, even when DeviantArt itself is NOT alleged to have trained any genAI model (but instead is alleged to have "simply to have implemented and used the AI tools provided by Stability AI and others."). DeviantArt had argued that copyright infringement claims must be dismissed as a matter of law because it did not itself do the purportedly infringing training. It had argued that "holding it liable for that conduct would make the millions of third parties who have downloaded and implemented the AI products challenged in this case -- many of which are open source software -- liable for infringement, which is unsupportable." The Judge REJECTED that argument in the context of DeviantArt's Motion to Dismiss on BOTH the "input" and "output" sides of the equation -- allowing it to move forward. On the "input" side, in the Judge's words, "The actual operation of Stable Diffusion 1.4 and whether the amount of any plaintiff's copyrighted works in that program suffices for copyright infringement or a fair use defense concerning #DeviantArt remains to be tested at summary judgment." And on the "output" side, the Judge wrote that whether DeviantArt's "Dream Up" software "operates in a way that could draw upon or otherwise reproduce plaintiffs' works to an extent that violates the Copyright Act and whether a fair use defense applies are issues that must be tested on an evidentiary basis" at the summary judgment phase. Want to learn more on a continuing basis? Subscribe to my generative AI and media/entertainment focused newsletter called "the brAIn" on Substack. https://lnkd.in/gtsk8AH8 #copyright #infringement #media #entertainment #music #hollywood Edward Lee

Major milestone in the artist lawsuit against Tech companies, the case can move forward to trial :) Lots of people have told me lawsuits won't work, that artists are wasting our time, well it seems to be working thus far. Because nothing is inevitable and society is what we make it. You can read more from this law professor and download the court pdf. I'm just a regular folk who knows my friends can go to trial now, not an expert on the law.

Lessons we learned from this case in the era of AI: You need REAL registration of your trademarks and copyrights in place, common law rights of first use or copy ownership do NOT work well in the AI world. You need to claim your rights continuously in commercial use. You need due diligence in using your IPs in commerce.

Really important one to watch here!

MAJOR RULING for Plaintiffs in one of the most closely watched generative AI copyright infringement cases. Edward Lee posts that the relevant California federal judge denied Stability AI's motion to dismiss copyright claims on the "output" side of the equation (the "input" side of the equation was not part of defendant's motion to dismiss). This is somewhat surprising, given the federal judge's earlier rulings in the case. It certainly gives more pause to the Tech community about training their AI without consent and compensation. All the more reason for a new equitable solution that seeks consent and fairly allocates the new value generated by AI (which is only made possible by the content that empowers it). #ai #artificialintelligence #media #entertainment

The new article "Copyright for technical standards after the CJEU judgment in the case Public.Resource.Org" has just been published in UfR 🎉 The article is written by scholars Thomas Riis and Jens Schovsbo from CIIR and William Unmack from CEPRI, and in the article it is examined whether "harmonized standards" are covered by section 9 in the danish copyright law, which excludes public documents from copyright protection. We conclude that harmonized standards with high probability will be covered by section 9. Find out more details about how harmonized standards are handled by copyright law by reading the article here: https://lnkd.in/deFHdFJ3  

The New Zealand Supreme Court will hear Burden v ESR today. Not often a copyright case gets it to the Supreme Court so I will be watching this one with interest (particularly as I appeared in the Court of Appeal in 2017 for one of the early fights in the saga). The questions on which leave have been granted are: (a) Was the Court of Appeal correct to conclude, for the purposes of s 9(1) of the Copyright Act 1994, that a copyright holder’s consent is not necessary for a work to be “in circulation”? (b) Was the Court of Appeal correct to conclude, for the purposes of s 9(1) of the Copyright Act 1994, that circulation outside of New Zealand could constitute “circulation”? The case will involve interesting questions of statutory interpretation interacting with international law obligations of the WCT. Copyright nerds can watch here:

I blogged the #DCCircut’s recent decision subjecting the Library of Congress and U.S. Copyright Office to judicial review under the Administrative Procedure Act for copyright rulemaking, including the triennial review of exemptions from Section #1201. An important confluence of #copyright, #administrative, and #constitutional law.

Looking forward to the discussion on the possible consequences and practical implications of the CJEU judgment in C-588/21 P (right to access harmonised standards referenced in EU law and copyright)#copyright #EUlaw: