Who Owns the Law? The Pro Codes Act’s Copyright Conundrum; The Federalist Society, July 26, 2024

Jill Jacobson , The Federalist Society;  Who Owns the Law? The Pro Codes Act’s Copyright Conundrum

"Voluntary consensus standards have become an essential but unseen part of everyday life. From ensuring your apartment building’s elevator is safe to enabling your router to get online, privately developed standards greatly impact modern life. A bill quietly percolating in Congress may impact this typically quiet intersection of law, policy, and regulation. The Protecting and Enhancing Public Access to Codes Act (“Pro Codes Act” (H.R. 1631)) permits standards development organizations (SDOs) to retain copyright protection when their standards are incorporated by reference into law, so long as they make a free version of the code available online. I take no position on this legislation and acknowledge the thoughtful arguments on both sides of this debate. I instead write to highlight how this below-the-radar legislation raises interesting and unintended intellectual property and takings issues with potentially far-reaching consequences.

The key players here are SDOs—typically private groups of industry experts who draft technical standards. Given the expertise that goes into drafting these standards, local, state, and federal governments often incorporate them into regulations by reference. Often, SDOs do not write standards for government use; many standards are authored for private sector guidance. Many SDOs derive significant revenues from licensing or selling copies of the standards. For example, many standards are only available for private viewing behind paywalls. However, government agencies may incorporate these same standards into regulations without the SDOs’ knowledge or consent. This creates tension between SDOs’ understandable wish to be compensated for the fruits of their labor and the regulated public’s need for open access to these standards.

SDOs also face uncertainty about whether the government edicts doctrine—which denies copyright protection to works created by government officials—extends to private entities’ work when it is incorporated into government regulations. At least some cases suggest it may. As the D.C. Circuit stated in American Society for Testing and Materials v. Public.Resource.Org, legal text “falls plainly outside the realm of copyright protection.”

On the surface, the Pro Codes Act aims to strike a fair balance between competing concerns over fair compensation and public access."

GENERATIVE AI IS CREATING A COPYRIGHT CRISIS FOR ARTISTS; Mind Matters, June 3, 2024

DENYSE O'LEARY, 

Mind Matters; GENERATIVE AI IS CREATING A COPYRIGHT CRISIS FOR ARTISTS

"The problem, Crawford and Schultz say, is that copyright law, as currently framed, does not really protect individuals under these circumstances. That’s not surprising. Copyright dates back to at least 1710 and the issues were very different then.

For one thing, as Jonathan Bartlett pointed out last December, when the New York Times launched a lawsuit for copyright violation against Microsoft and OpenAI, everyone accepted that big search engines have always violated copyright. But if they brought people to your site, while saving and using your content for themselves, you were getting something out of it at least.

But it’s different with generative AI and the chatbot. They use and replace your content. Users are not going back to you for more. OpenAI freely admits that it violates copyright but relies on loopholes to get around legal responsibility.

As the lawsuits pile up, it’s clear that gen AI and chatbots can’t work without these billions of images and texts. So we either do without them or we find a way to compensate the producers."

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."

If artificial intelligence uses your work, it should pay you; The Washington Post, July 26, 2023

Joseph Gordon-Levitt, The Washington Post; If artificial intelligence uses your work, it should pay you

"Renowned technologists and economists, including Jaron Lanier and E. Glen Weyl, have long argued that Big Tech should not be allowed to monetize people’s data without compensating them. This concept of “data dignity” was largely responding to the surveillance advertising business models of companies such as Google and Facebook, but Lanier and Weyl also pointed out, quite presciently, that the principle would only grow more vital as AI rose to prominence...

When I do a movie, and I sign my contract with a movie studio, I agree that the studio will own the copyright to the movie. Which feels fair and non-threatening. The studio paid to make the movie, so it should get to monetize the movie however it wants. But if I had known that by signing this contract and allowing the studio to be the movie’s sole copyright holder, I would then be allowing the studio to use that intellectual property as training data for an AI that would put me out of a job forever, I would never have signed that contract."

Thousands of authors urge AI companies to stop using work without permission; Morning Edition, NPR, July 17, 2023

Chloe Veltman, Morning Edition NPR; Thousands of authors urge AI companies to stop using work without permission

"Thousands of writers including Nora Roberts, Viet Thanh Nguyen, Michael Chabon and Margaret Atwood have signed a letter asking artificial intelligence companies like OpenAI and Meta to stop using their work without permission or compensation."

“I Have a Problem With the Stealing of My Material”: A Common Rallying Cry Emerges On AI; The Hollywood Reporter, July 3, 2023

BY WINSTON CHO , The Hollywood Reporter; “I Have a Problem With the Stealing of My Material”: A Common Rallying Cry Emerges On AI

"In a hearing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet examining the intersection of AI and copyright law, key players in Hollywood moved for guardrails to protect their work. “The rapid introduction of generative AI systems is seen as an existential threat to the livelihood and continuance of our creative professions unless immediate steps are taken on legal interpretive and economic fronts to address these emerging issues,” said Ashley Irwin, president of the Society of Composers and Lyricists (SCL), at the hearing on May 17. “It’s essential to prioritize policies and regulations to safeguard the intellectual property and copyright of creators and preserve the diverse and dynamic U.S cultural landscape.”"

G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?; The New York Times, July 17, 2018

Alan Feuer, The New York Times; G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?


"The law, however, is struggling to catch up with the change in taste and culture, especially when it comes to the issue of when graffiti — an ephemeral form of art — deserves the safeguards of a copyright. This month a federal judge in California will entertain exactly that question as he hears oral arguments in a copyright lawsuit that could determine if graffiti wins new protections, or if companies can use it for commercial purposes without having to compensate the artists who create it."

When Scientists Develop Products From Personal Medical Data, Who Gets To Profit?; NPR, May 31, 2018

Richard Harris, NPR; When Scientists Develop Products From Personal Medical Data, Who Gets To Profit?

"If you go to the hospital for medical treatment and scientists there decide to use your medical information to create a commercial product, are you owed anything as part of the bargain?

That's one of the questions that is emerging as researchers and product developers eagerly delve into digital data such as CT scans and electronic medical records, making artificial-intelligence products that are helping doctors to manage information and even to help them diagnose disease.

This issue cropped up in 2016, when Google DeepMind decided to test an app that measures kidney health by gathering 1.6 million records from patients at the Royal Free Hospital in London. The British authorities found this broke patient privacy laws in the United Kingdom. (Update on June 1 at 9:30 a.m. ET: DeepMind says it was able to deploy its app despite the violation.)

But the rules are different in the United States."

The Internet Is Where We Share — and Steal — the Best Ideas; New York Times, June 6, 2017

Jenna Wortham, New York Times; The Internet Is Where We Share — and Steal — the Best Ideas

"In April, a photograph of Rihanna and Lupita Nyong’o taken at a Miu Miu fashion show three years ago began recirculating online. Their friendly body language and chic clothes (Rihanna wore thigh-highs, fur and leather; Lupita a plum jacket with a jeweled collar) caught the imagination of the internet. A Twitter user named @1800SADGAL suggested that “Rihanna looks like she scams rich white men and Lupita is the computer-smart best friend that helps plan” the scams. People began talking about an “Ocean’s 11”-type film written by and starring black women. Issa Rae was nominated to write the script and Ava DuVernay to direct. All four women chimed in on Twitter, announcing their support, though what that meant seemed unclear. Like any other online frenzy, it disappeared after a few days.

But a few weeks later, Entertainment Weekly reported that the social-media fantasy was actually coming to life: Netflix beat out several bidders at Cannes to buy the concept, which could go into production as early as next year. Viewed one way, this is a tale about how the web has collapsed the distance between audience and creator. But it also raises questions about ownership in the digital age."

Supreme Court Rules on Legal Fees in Copyright Cases; New York Times, 6/16/16

Adam Liptak, New York Times; Supreme Court Rules on Legal Fees in Copyright Cases:

"The Supreme Court on Thursday unanimously ruled that a Thai student who in 2013 won a copyright case involving imported textbooks should have another chance to persuade a lower court that the textbook’s publisher should pay his legal fees...

Justice Elena Kagan, writing for the court, said whether the losing side’s position was objectively reasonable should play a major role in the analysis. But she said the United States Court of Appeals for the Second Circuit, in New York, and the district courts it supervises, may have placed nearly dispositive weight on that one factor.

Justice Kagan said other considerations — including motivation, deterrence and compensation — must also play a role in the analysis. But she appeared to suggest that the student, Supap Kirtsaeng, was unlikely to prevail under the correct standard."

After suits, Phoenix backs fair use and copyright law changes; Los Angeles Times, 2/28/14

August Brown, Los Angeles Times; After suits, Phoenix backs fair use and copyright law changes:

"Back in 2010, Harvard law professor Lawrence Lessig gave a lecture on copyright law. Speaking at a conference for the organization Creative Commons, he used YouTube clips of fans dancing to Phoenix's song "Lisztomania" as an example of proper "fair use" principles. He later uploaded the full lecture, which included the clips, to YouTube.

Liberation Music, the firm that licenses the Phoenix song in Australia and New Zealand, disagreed with Lessig's take. The firm issued a YouTube takedown order, asking that the lecture video be removed, and later threatened their own lawsuit against Lessig.

As perhaps was to be expected when one sues a law professor, Lessig and the Electronic Frontier Foundation countersued for "misusing copyright law."

The flurry of suits finally came to an end this week, according to Billboard, after Liberation admitted being in the wrong and would pay compensation associated with the cases."

[Documentary] Copyright Criminals; PBS, Independent Lens, Airing 1/19/10 10 PM (in Pittsburgh area; check local listings)

PBS, Independent Lens, Airing 1/19/10, 10 PM EST in Pittsburgh area (check for local listing broadcast times); [Documentary] Copyright Criminals:

"Long before people began posting their homemade video mashups on the Web, hip-hop musicians were perfecting the art of audio montage through sampling. Sampling — or riffing — is as old as music itself, but new technologies developed in the 1980s and 1990s made it easier to reuse existing sound recordings. Acts like Public Enemy, De La Soul and the Beastie Boys created complex rhythms, references and nuanced layers of original and appropriated sound. But by the early 1990s, sampling had collided with the law. When recording industry lawyers got involved, what was once called “borrowed melody” became “copyright infringement.”

COPYRIGHT CRIMINALS examines the creative and commercial value of musical sampling, including the related debates over artistic expression, copyright law and money. The film showcases many of hip-hop music’s founding figures like Public Enemy, De La Soul and Digital Underground, as well as emerging artists such as audiovisual remixers Eclectic Method. It also provides first-person interviews with artists who have been sampled, such as Clyde Stubblefield — James Brown's drummer and the world's most sampled musician — and commentary by another highly sampled musician, funk legend George Clinton.

Computers, mobile phones and other interactive technologies are changing our relationships with media, blurring the line between producer and consumer and radically changing what it means to be creative. As artists find more inventive ways to insert old influences into new material, COPYRIGHT CRIMINALS poses the question: Can you own a sound?"

http://www.pbs.org/independentlens/copyright-criminals/