Posts Tagged: "Copyright Office"

Copyright exits everywhere—from books on a library shelf to music playing on the radio, to the software running the electronic device on which you are reading this article. Copyright’s broad scope and extensive reach foster a varied and fascinating landscape of copyright cases. From cases involving the use of a celebrity photograph, animated dancing video game characters, to artificial intelligence (AI) infringement inquiries, the number and type of matters copyright touches is seemingly infinite. This provides an evergreen bounty of copyright cases to digest. The following highlights some of the top copyright decisions of 2023.

Last week, the U.S. Copyright Office issued a notice of proposed rulemaking (NRPM) in the Federal Register as part of the triennial rulemaking process for exceptions to 17 U.S.C. § 1201’s prohibition against circumventing technological protection measures (TPMs) controlling digital access to copyrighted works. This proceeding is the ninth triennial Section 1201 rulemaking since passage of the Digital Millennium Copyright Act (DMCA) in 1998, and it starts with the Copyright Office intending to recommend renewal of all but one existing exemption. The Office also announced that it has received petitions for seven classes of newly proposed exemptions for which the agency will initiate three rounds of public comments.

On Friday, Judge Beryl Howell issued an opinion in Dr. Stephen Thaler’s challenge against the U.S. Copyright Office (USCO) over the denial of his application for a work generated entirely using generative artificial intelligence (AI) technology. The opinion supports the USCO’s refusal to register a work in which the claimant disclosed in the application that the image was the result of an AI system, called The Creativity Machine. The case is Stephen Thaler v. Shira Perlmutter and The United States Copyright Office (1:22-cv-01564) (June 2, 2022).

Current artificial intelligence (AI) systems can generate an astonishing variety of content, including text-based works, audio, video, images, programming code, product designs, technical papers, etc. In many cases, the output from an AI system is virtually indistinguishable from that of a human. This trend is expected to continue at an ever-increasing rate in the coming years. Since content solely generated by an AI system is not available for protection under existing intellectual property laws, the following are practical guidelines for human creators who wish to protect content that was created with the assistance of an AI system.

Now is an exciting time in the world of artificial intelligence (AI) and intellectual property law. Academics have been interested in this field for a long time, and more narrowly in certain issues, like the legal status of works created by an AI in the absence of a traditional human author (AI-generated works). But AI-generated works have not traditionally been very interesting to lawyers, policymakers, or businesses, because while AI has been functionally making creative works for decades, the technology was never that commercially useful.

The Constitution empowers Congress to enact federal copyright laws because the Founders recognized that the best way to advance the public interest is by enabling creators to pursue their own private interests. The copyright system secures uniform property rights to creators across the nation as a reward for their productive labors and as incentive for them to profit in the marketplace. The incredible selection of creative works available to consumers today, in terms of quantity and quality, shows that copyright law is working well. Of course, that doesn’t stop the detractors from throwing as many monkey wrenches as they can. However, looking back over this past year, there’s good reason to think that the naysayers are becoming less relevant. There’s cause to be hopeful that the plight of all creators, big and small, is improving and will continue to get better in the years to come.

On November 10, the U.S. Court of Appeals for the Ninth Circuit ruled in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. following remand from the U.S. Supreme Court, which clarified the knowledge standard required for invalidating copyright registrations based on inaccuracies in the registration application. In light of that ruling, the Ninth Circuit upheld Unicolors’ ability to maintain its copyright infringement action against H&M because the plaintiff did not have the requisite knowledge of the legal inaccuracy on its registration application to invalidate the registration. While the Ninth Circuit dismissed most of H&M’s arguments on remand, the appellate court did agree with H&M that the district court’s post-remittitur damages were improperly calculated, leading to a significant reduction in the amount awarded to Unicolors in the case.

The Copyright Claims Board (CCB), established by the CASE Act passed in December 2020, is now up and running and taking cases. The CCB is an alternative to federal court. Just like patents, copyrights are bound by federal law. Previously, a copyright owner would have to take their case to federal district court to in order to seek damages or relief. But the CCB allows a claimant to bring a copyright suit before a tribunal at the Copyright Office instead.

How does it make any sense that fixing something, which you bought and paid for, is a violation of the manufacturer’s copyright? It’s not, and here’s why. Fixing things is legal under multiple sections of Copyright Law. Repair doesn’t modify books, music, videos or licensed software, so it’s absurd that copyright law is even being used to restrict repair.

The U.S. Supreme Court today granted a motion made by the Acting U.S. Solicitor General to participate in oral argument as an amicus in the case of Unicolors v. H&M. The case asks the Court to decide whether the Ninth Circuit properly construed the language of 17 U.S.C. § 411 relating to whether courts must have evidence of intent to defraud before referring copyright registration validity questions to the Copyright Office. Oral argument is set for November 7.

On Tuesday, February 23, the United States Copyright Office issued a final rule that creates a new “group” registration option for albums of music and works related to that music. The new option, or  Group Registration for Works on an Album of Music (GRAM) allows applicants to register either a group of up to 20 musical works or a group of up to 20 sound recordings and associated literary, pictorial, or graphic works contained on an album of music. An “album” is defined as “a single physical or electronic unit of distribution containing at least two musical works and/or sound recordings embodied in phonorecords…” Artists can take advantage of the copyright rule to protect their original music beyond the basic protections automatically bestowed to them once it is fixed in a format in which others can hear it.

Earlier this month, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) held a joint event titled, “Copyright in the Age of Artificial Intelligence” (AI) at the Library of Congress in Washington, DC. The event explored how global copyright law and intellectual property law, as well as broader policy, may currently address AI technology, and included dialogue about changes that may be needed. Panelists also shared how AI is being utilized now and what future technology deployment and innovation may look like. The event was part of a series of conversations organized by the U.S, Copyright Office and WIPO both in the United States and Europe, with the next conversation scheduled for May 11 and 12 in Geneva, Switzerland. The summit illustrated that AI presents unique opportunities for innovation, assuming intellectual property rights are respected, but questions remain in several areas, including whether machine learning is producing “original” work and whether the product of such software is inherently reproductive, derivative or the result of a system or process devoid of human action.

This week in Other Barks & Bites: the Federal Circuit strikes down a district court’s finding of design patent infringement on summary judgment; the USPTO advises trademark attorneys to monitor filings to prevent against the unauthorized use of their names; the U.S. Copyright Office issues final rules eliminating options for physical material submissions for newspaper and serial registrations; the U.S. Supreme Court will take up Booking.com’s appeal of the rejection of its trademark application by the USPTO; AG Barr supports the FCC’s plan to restrict Huawei and ZTE equipment purchases through the Universal Service Fund; Nirvana’s copyright case against Marc Jacobs moves past a motion to dismiss; Biogen loses $3 billion in market value after PTAB hearing; and Amazon seeks an injunction against a patent owner asserting infringement claims against Amazon Fire product retailers.

While there are a number of falsehoods being spread about the CASE Act by those who philosophically oppose any legislation that will help the creative community, there are a few honest critiques that are based on simple misunderstandings about the bill rather than malice. Take, for instance, an article published earlier this week on this blog which characterizes the CASE Act’s intentions as noble, but argues that there are “three gaping holes” that make for bad policy…. The CASE Act will not bring an end to copyright infringement, nor is it intended to. Subversive parties that intend to infringe and skirt the law are unlikely to be brought to justice under the CASE Act. But the CASE Act is good policy for achieving what it is intended to do: provide an alternative to federal court where consenting parties who presently cannot afford to, might finally get their day in court.