It's entertainment law update episode 180 R to believe 180 of these here we are on May 28 2020.
Music.
Hi everybody and welcome to another episode of Entertainment Law update from Los Angeles California I am Gordon Firemark,
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett.
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How are things? Things are good.
Just it's been a had a nice long Memorial Day weekend with with really great friends attended out of town wedding and just had a fun
Fun weekend. How about you? Actually, we had a busy weekend. We had,
We decided it was time to buy a new mattress and and oh my gosh. I have to say I saw the coolest. They had the smart bed mattress now that
Measures every,
Activators everywhere and just you shouldn't need an app to run your bed but oh I know. It was pretty cool. We did not buy the smart bed but.
You know, it's an investment in our health and comfort. So, anyway, that was that and then and then I'll
Whenever my mom's and did the Memorial Day grilling thing and had a nice time. Good to see everybody. So
Fine. That sounds great. Yeah. Good good. Yeah. Well, we have a big rundown so I say we just jump right in and,
And get started with the stories for the month we'll start off with a kind of an anomalous thing happening in the Supreme Court five justices recused themselves in the case of Baker versus Coats
and they had to,
Recuse themselves here would they hear the situation a copyright infringement coming from the second circuit having the accused infringement where the planet was suing,
The parent company of penguin house burlesman notably penguin house is the publisher of books authored by five of the supreme court
Justices. So those justice is all recused themselves. Leaving the court without a quarum.
And thus the lower cords decision that there had been no infringement nor any commonality with with the topics covered. Anyway, so that a non-infringment ruling stands.
Because the justice is recused themselves. So, nice to see that they're doing what they're supposed to do under those new ethics rules. And I.
It may be somebody else can confirm it. I think I saw that there's been three cases maybe where they've not been able to take it because of recusals.
Oh, in history, okay, okay. Because so many had to repeat themselves. So, this is not happened much and,
Anyway, this sort of just an interesting wrinkle in in the
Well it's and it's interesting for us because it's also deals with copyrights so anyway but for that so.
Sticking around the the while the the DC Environs anyway. Let's talk about this Isaac.
Yeah so Isaac hey Wall St was found in the US District Court in Georgia by Hayes Hayes
Hey enterprises the company representing the estate of legendary soul singer Isaac hey sweet talked about this a couple of times in the past it's a suit against Donald Trump and his presidential campaign,
Around the election, authorized use of the song Hold On. I'm coming at political rallies.
This suit really does raise significant and interesting issues regarding copyright law, trademark law, rights of publicity, in the context of political events,
And the limits that may be imposed in the blanket public performance music like I can sing that's available so.
Then mister Trump I guess he would now President Trump.
Begin using hold on I'm coming co written by Isaac Hayes and David Porter at rallies in 2020 under a blanket license in place at that time with broadcast music inc BMI,
That generally permitted the use of the every song in the catalog at any public event as long as it was licensed but then BMI as well as the other public performance rights organizations started to allow their members to opt out of police
Political licensing and that's what Hayes,
The Hazel State and his co-road reporter did formally withdrawing their song from the political licensing game but Trump continue to use the song triggering the copyright refringment claim,
And separately and very even more interesting to me is the fact that this case also centered around
The proper execution of termination rights by the estate under section 17 USC section 203 to reclaim,
The portion related to Isaac hey used to reclaim the copyright in the song from his publisher warner chapel,
And whether or not those rights did who they reverted to who had the ability to exercise those rights in relationship to this lawsuit so the estate originally.
Started three main legal claims against Trump which was copyright infringement
False endorsement under the land of act and then Tamara's just going to put in front of this because we don't have a federal right of publicity act and that's the closest thing to it. And violation of right of publicity law under Georgia.
State law. And there was a claim brought against a youth organization for hosting some of the events.
In the court looked at the falls indoors argument under the lanimac,
Saying that Trump's playing of the song created the false impression that Isaac Hayes or his estate endorsed Donald Trump they claimed to hold a trademark in Hays's name
And argued the use of the composition in a political setting without permission would miss lead the public into assuming into assuming you'll affiliation or endorsement and the court rejected that argument calling it quote.
Senseless the high will tell you I always include that argument in it.
The estate never alleged that Trump or his campaign used haze name or likeness only the musical composition which
I'm going to add in this case was insufficient to support a false endorsement claims. I think there could be situations where it could support it but that's just,
Judge Tamara the
Court said that this would be a dangerous president allowing any artist to sue over a properly licensed public performance undermining the utility of blanket licenses. The mere use of a song even at repeated public events does not.
Plausibly implying endorsement without further association or explicit approval. The core also went on to dismiss the
Third part the right of publicity claim under George a law again because Trump never used haze his name or image the claim failed but then let's talk about,
The.
Sorry this is what I do at my pages it messed up the copyright infinite claim only only because I had extra stuff to say today,
In the court person
The court said they can proceed on their copyright infringement claim but it was really interesting because the defense raised a couple of issues that I think if you're interested in how copyright,
Notices of termination work. This was a good case to go.
Take a read because the court walked through what you need to do to properly execute termination rights that they had a majority the widow plus one child qualified,
So I think that was just a good read. They also made an interesting claim. I guess that haze enterprises was an improper party. So once the rights were
Terminated and reclaimed from warner chapel they vested in
The appropriate stash story airs under the copyright act and then those rights were assigned into haze enterprises and Indianity,
And clear if there was a written assignment or not and that's what the defense was kind of hanging on and the court said under,
17 USC 204 A which requires the assignment to be an assigned writing.
You know what this is not for a third party to challenge that that's only between the assignee and the aspen,
Oh, I know. I thought that was. So, at least for purposes of this portion of the proceeding the court said ownership
What is sufficiently at Laj to proceed so the court dismissed the Boston endorsement publicity rights and the
Briefly mentioned third party liability claims but again it should be
Taking the next steps in litigation and possibly proceeding to trial as to they cooperate infringement claim because the public performance rights were not licensed to under the blanket license so,
I think it's yeah a little bit of a road map for future cases of this sort if if they,
Persist to make sure they will. Yeah, right, right.
So good. Alright. Well, we have several quick cases dealing with photocopy right through those sort of cars.
Quickly we've had picture three different photographers each wake up one morning to find their work wondering the internet without them.
Their journeys through the court illustrate the three main hurdles that creators now face timing access and fair use defenses so the first one is a discovery rule case basically Michael Greco versus Ruthie Davis
centers on a copright infringement claim that raises a
Pivotal legal question when does the statue
Of limitations begin to run Greco alleges that the designer Ruthie Davis and her company are a designs used his copyrighted photos of a model named Amber Rose from 2017 without his permission
Davis posted the images on her website and social media but Greco didn't sue until 2021 4 years later prompting a debate over whether that claim is timebar
So the key issue here is whether the claims a crew when the infringement occurs which is the injury rule or
When the plane of discovers it to the discovery rule Davis are used the copper that contains no support for the discovery rule and urges the court to adopt.
The injury rule. Greco defends on the on the basis of the discovery rule. Citing it's necessity in an age of hidden digital infringement.
An interesting argument. Just record dismiss the case as untimely finding that greco
Being an experienced photographer with a prior history of litigation should have discovered the infringement sooner but the second circuit reverse saying no the discovery rule plies equally to all planets regardless of sophistication in it.
It's a binding president unless it's overturned by congress or the Supreme Court.
So, in January, Davis petitioned the Supreme Court to resolve the
The split to over these accrual of the case rules and to reject the discovery rule Greco opposed and the court has now acknowledged this issue.
In that nearly case the one or chapel versus Neely from last year but they left it unresolved.
And so if the court takes the case and and here's it next term then we may get an answer on this for once and for all we'll see,
I mean I just feel like it has to be the discovery rule yeah I I think the the argument about you know the the possibility of these,
Hidden digital infringements going unnoticed for years and years. You just, we have to do something to sort of address that. If there's no recourse, just because it remain hidden then,
You know, it just doesn't seem right.
Yeah. Okay. Well, we'll see. Oh, okay. Well, let's talk about Woodland V Hill. In this case, where the plan of photographer failed to alleged sufficient access on basis of his postings on Instagram
Freelance artist Rodney Woodland sued Montero Lamar Hall.
Hey little no it's a X for cooperating fringing every infringement or ledging that hill,
No I think I said help properly alleging that he'll post photos on Instagram that unlawfully copied Woodlands original photographs,
Woodland the planet posted these photographs between 2018 and 2021 they received minimal engagement
Sounds like my Instagram page. But I'm not posting what he was posting. But in between eight and 75 likes. While hills allegedly similar post again, little Naza X.
Rapper countries.
Anyway, similar post in 2021 attractive, attractive, massive intention
Attention the subject matter of these photographs were African American man,
With no clothes on with something covering their parts. So, at first, I was thought
Little Nozz x reposted the exact picture of this gentleman. No, it that he didn't copy. He didn't post his picture. It's just.
Two people posing,
Naked. Anyway, so there we go. Woodland claimed heal appropriated the original expression in his photos. Starting claims of copyright infringement, requesting declaratory relief accounting and unjust in Richmond
But US district court for the central district of California this Woodland failed to plazably alleged that hill had access to his photos one oh
Or that the images were substantially similar and protected expression.
Woodland was given the opportunity to amend his filings but failed to state available claim the ninth circuit affirmed
The dismissal. The appellate court ruled that simply posting photos on a public Instagram account with limited engagement
Does not establish a reasonable possibility of access especially when there was no tagging or dissemination directly to Hill
The court emphasize that copyright law protects only the selection and arrangement I created elements not general ideas or poses applying the extremic test for substantial similarity
The court found the photos liked legally protectable similarities
Are they excited vice publications first versus rule telephone the Supreme Court decision that reiterated that copyright does not extend to unoriginal or general content because woodland could not show either access
Or substantial similarity the court upheld the dismissal law claims concluding there is no copyright infringement under the law and again these are
Two different people in different photographs posing.
And they just said no access and even I guess even if there was. It was just no substantial similarity. That access thing is the is the thing that caught my eye right off the bat and and,
I would think now what was how was this disposal? Was this an after a trial? It must have been an early motion, right?
It was a dismissal. So, yes, it seems to me that there might be a way to prove through forensic
Computer technology logs evidence those kinds of things that little nausea's account did in fact see those images for access purposes so it seems I mean maybe there was no briefing on that issue or or I don't know,
Seems like that might have been a jury question. The access part of it. So yeah, but they if you don't get to substantial similarity, then, doesn't make a difference. So, right.
Kinda interesting for district court well I don't know,
Judicial economy, my matters too. So, yeah. Well, the third of these photo cases is a second circuit saying that the trial court misunderstood
Fair use. The case is ramenova versus amylus. Ink.
Coming out of the second circuit professional photographer Jana Romanova sued amyla sinkin online publisher for
Willful copyright infringement after they allegedly published one of her photos without permission credit or payment. They failed to respond to the lawsuit
So she moves for summer excuse me a default judgement and instead of granting the default the district court raise the fair use defense on its own,
Suicponte fair used defense.
That's a exciting maybe. I don't know. That's weird. Yeah. For the court to bring up an affirmative defense. You know, so anyway, they asked for a woman over to justify why the use wasn't fair. And then eventually dismissed the complaint with prejudice.
Concluding that the the it was a fair use and reasoning that it conveyed a different message and therefore qualified as transformative use under,
The fairest doctrine. They said defendance article showed 10 photographs of people with pets. The article declared that it was published and continuation of the
Websites semi regular series focusing on the ever increasing amount of pet photography we find online so she appeals and the second circuit reversed saying the appellate court found the disrecord had both procedurally and substantively aired.
First it ruled the the fair uses a defense is an affirmative defense that must be raised and proved by the defendant not the court
Especially in a case of default and the court found that the use was not transformative it republished the photo without alteration commentary or new purpose,
And said the test for transformativeness turns on whether the copying of the original
Communicates a message that differs from the message of the original not whether the copier separately declares such a message
So because it like transformed character and valid justification it failed on the first end
Critical prong of the fair used tests so they said she's entitled to the default judgement on her unchallenged claims and remanded the case with instructions to enter that judgement in her favor,
And there's a key quote fair use cannot be conjured up by a court to excuse a defaulting parties infringement took,
Could the appellate court because,
Then why does the appellate court get to make a opinion about transformative if they're going to say district court you didn't have the authority to do this.
Why didn't they just stop there?
Instead of giving their own opinion on why it wasn't very used. Well, that is an interesting question, isn't it? I mean, I guess if the. I mean, it sounds got like what's you can't do it but we can.
Yeah, little, yeah. On the other hand, they are allowed to,
Correct a miss statement of the law of you know what is transformativeness I think so they were addressing probably something that the trial judge,
We think you got that wrong put it to the jury,
Not.
You got it wrong. Here's why. You know, and and too bad you're dealing with it. So, we'll see. Yeah. But you know, in a default judgement situation,
There is no jury you know it's it's never going to go there they're the the findings of fact all go in favor of the planet and then that's the procedural point they were making so,
So the the commentary on this is you know with digital platforms making infringement easy and discovery random,
And proof is complicated. So, here are these cases that show you got three gates to get through. To to bring a case. First off, if if the court decides with date of the Supreme Court sides with Davis on that case.
The clock ticking from the day the photo is first,
Infringed that maybe a thing so you gotta get the timing file on time you've gotta actually show there was access the opportunity to make the copy and then you know
Relying on fair use is risky and and the best of cases. So, but it's a defense not a. Not a,
To a sponte thing. Not for that, not for the judge to say, hey, what about this? Anyway,
Let's move on. We have another case over with the ruling is the jury should be just the ones to decide about similarities. So, let's talk about
Dancing with a stranger? Yeah. Yeah. So a new development in the case involving Sam Smith hit
Song and dancing with a stranger just lets month the ninth circuit court of appeals reversed a summary judgement
That was awarded in favor of Smith back in 2023 in 2015 Jordan Vincent and Christopher,
My rend co wrote and released a song entitled
Dancing with strangers. There are music publisher and party to this case is sounding color LLC and in 2019, Sam Smith road and as the artist released
Pop a song that was also entitled Dancing with Strangers.
There were also other songwriters, co writers. Sounding colors copyright infringement claims are based on their allegations that the Smith's song copied
Their lyrics key pitch sequence melodic contour rhythm and metric placement core progressions and other musical elements.
In 2023 Smith and the other defendants that are co-writers brought emotion for some rejuvenate have the case
Dismissed on the basis that there's no substantial similarity between their songs chorus and melody.
Versus the 2015 song owned by the plaintiffs.
In asserting the summary judgment motion the district court zoned in on using the extremic test to determine where the weather there was substantial similarity in musical elements between the two songs and so when the court uses the extremic test they rely on
Report reports and testimony of many experts that break down the two songs to determine any similarities in musical elements.
In the Smith case several experts testified regarding the similar lyrics quote dancing with a stranger and compared the two songs in terms of
The musical elements key pitch sequence of a lot of contour and metric placement as well as chord progressions,
Sounding claims sounding colors main claim is that the musical elements in their 2015 song are not protected by copyright and visually as individual components but rather
based on their original selection and arrangement and arrangement of all of these elements that make the ballotic phrase,
There are starting that Smith.
And his co-writers melodic phrase is substantially similar to the arrangement in their melody phrase the court also addressed the lyric issues
Basically stated that the phrasing dancing with a stranger is unprotectable under copyright law because it's in so many different musical works.
They looked at the musical elements.
Again determining all these different things related pitch rhythm so on and so forth and when it came to the plane of slam that it selected an arrangement of these elements has copyright projection
The district court decided that the musical elements in Sam Smith
Melodic phrase did not quote share in substantial amounts the same arrangement as that from the sound in color song
So Smith succeeded in his summer motion judgement.
On appeal the court of appeals made a decision just a few weeks ago that a jury would actually likely find there is a substantial salon there to selection in rage of musical elements in both songs,
Interesting not as to the lyric but as the musical element.
Sam Smith and other defendants tried to argue that the sound and color song had only thin copyright protection which would raise the bar,
And they would have to prove that the songs are identical,
I don't think that's the standard. Sam Smith arguments failed in this case and instead the pill appeals court decided that the hawk
So that chorus in sound and color song was uniquely selected and arranged and thus maybe protected,
So it's moving forward going down that road toward jury trial which will be following and will be updating who knows if it'll go if it'll settle or what will happen on that so,
Yeah. Lots of great music. Copyright cases we've got going on.
And.
Keeping things interesting did you know there was a restatement of copyright in the works.
Okay I did not and I no but okay so let me tell you what I remember from law school.
The restatement is just a restatement. It is not the authority. Right. Cuz I always remember, I mean it restament of torts. You know, so much of law school seemed to be,
Right rounding crosser and the restatement of torch but yet you know it wasn't the end all to be all so so I
It's a secondary source. That's right. So, what's happening around the restatement of copyright? Well,
There's been this move toward a restatement going on for I think about 10 maybe a little longer than 10 years and several copyright experts professor Jane Ginsburg and Sham Balganish of Columbia Law School Peter Manella,
You see Berkeley School of Law and Attorney David Nimmer from,
They have formally disassociated themselves from the ALI the American Lion Institute's restatement of the copyright law.
On May 12 that they sent a letter to ALI members urging the council to veto the draft.
Restatement when it came up for a vote arguing that the project's unprecedented move to restate a comprehensive federal statute without treating the acted self as the black letter baseline is a threat to the institutes
Scholarly credibility.
Their core objection is to the methodology the restatement has proceeded they say without adequate peer review or substance to feedback from these advisors including calls to preserve
Robust fair use protections that's been sideland they warn that the draft's paraphrasing of statutory text risks creating a shadow statute
That diverges from what congress and acted.
And confuses rather than clarifies the law for lawyers in court. This isn't merely an academic quibble about a but it's actually a fundamental breach.
Of the restatement's mission to synthesize not to supplant existing law. So, the ALI council will will decide on this and if they heal heed the plea, then the vote could be delayed or defeated
And that would be a rare rebuke of the project at the 11th hour but even if there were statements survives
There's a lot of confusing spotlighting the delicacy of balancing statue strength against the desire to guide the judicial interpretation. The background here is that
The the people who were driving the move toward the restatement in the first place are.
Information wants to be free types I guess you could say that the more libertarian approach to
Ownership of intellectual property and in particular connected with the tech industry which of course with the AI and and other things there there are some interests there that these folks feel are being,
Disproportionately represented in the way the restatement is being
Crafted so as to maybe undermine thoughts about fair use and and where the boundaries for infringement line things so,
Politics at the ALI I guess you could say it's economic politics
Really?
Yeah, what do you think about it? So,
So right as well as other other excellence sources,
Yeah. But it does make you think about here are these things that in law school we learned or you could sort of rely on them and,
You know to see that now that we're seeing how the sausage is made so to speak we're maybe not as thrilled about eating it or consuming it.
No because it's been a long time since I've been in law school. How old are you?
I always think of the restatement relating to common law not statutory law. It's
Am I wrong?
Well, I think there's probably, you know, property, well, that's also goes back to common law but there have been. Yeah. Yeah. So,
Anyway, it'd be interesting to see what happens with the vote of the community and and,
And what's next but it's sort of just took me by surprise that they're even was going to be a restatement of copyright and that it I'd never would have thought that it would be something that would be sort of.
Something to to pay attention to when you're reading when you're doing research is you know you have to,
Look at the source a little more carefully than we thought
I guess. Yeah, while students don't forget the rest statement is a secondary source. So, whatever people that might be opinions and points of view that may or may not be
Completely in line with the actual law. So, that's yeah. Interesting. Yeah. So,
Mixed feelings about this next revenge porn law. The president signed into law
On May 19 he signed the take it down act this is the first federal legislation in the US specifically targeting distribution of non consensual intimate images,
Including AI generated deep fake pornography. Sounds great.
Sounds like of the right thing and in fact the way it you know it was a sort of bipartisan bill. So the key provisions here are makes criminal it makes non consect nonconsensual content.
Published a criminal. The act makes it a federal crime to publish her distribute sexually explicit images or videos of individuals without their consent,
And that covers both real and AI generated content I have a little bit of a point to to make there in a second but also it puts on the social media platforms and websites a mandate that they need to remove the content
This kind of content within 48 hours of a victims request,
The penalties are up to 2 years in prison for publishing adult content and 3 years
If the content involves minors and the FTC will be tasked within forcing the law and using its authority over,
Deceptive trade practices.
So the first lady played a big role in advocating for the bill aligning it with one of her initiatives on Youth Wellbeing and online safety and she was lobbying and made a lot of public appearances to garner support.
And it did receive bipartisan support in the congress passing the house 409 to two
And the senate was unanimous companies like Meta TikTok and Snapchat endorsed the legislation recognizing the need for clear guidelines and handling non-consensual explicit content.
But there are some digital rights organizations that have expressed concerns about the overreach and suppression of lawful speech.
So critics argue that the laws language might be vague and leads could lead to intended consequences like removal of legitimate content or challenges to privacy tools like encryption
So also apprehensions about the use of the the potential or misuse of the law for politics purposes especially given,
The current administration in its relationship with certain agencies and things like that. So, significant step forward in addressing some challenges, you know, that are that have come up in this last few decades. And especially with AI.
But it it's trying to protect privacy and dignity but it also poses risks for free speech and things like that. So, the point I wanted to make was that I the case of ashcroft versus free speech coalition,
Ruled the child pornography protection act unconstitutional as applied to,
Fake child pornography where they weren't really kids or it wasn't a real person at all. Like cartoons and things like that.
Seems to me that A. I. Generated deep fake can look to the law like that and say well it doesn't apply to us either,
Although if it looks like a real person so I I just you know I do worry it's hard it's hard because I think we as,
Humans we as having children you know the last thing we want is someone we love to be a victim
Of something horrible like this. So, I I went back and I didn't, I just didn't remember Ashcroft. Everything about it and so, I proved it quickly. It was from 2002 hard to believe. It's been over 20 years ago.
And I thought it was interesting request descented
That maybe wasn't interesting but he sent it and he said in 2002 this is a rapid technology.
End
We're going to I'm summarizing we're going to get to the point where we can't distinguish between real versus fake and I think in 2002,
It was easier to distinguish. Now, it wouldn't be easier to distinguish between a real person who was over 18, who was pretending to be under 18, but,
You know some the wrong person's head attached to the wrong body maybe in 2002 that was,
Not as much of an issue as it is today. So, I I did not have an opportunity to look to see if any claims have been brought yet.
And I guess if it's is it a personal claim I mean if you have if you can file a take down notice I guess it is yeah and I mean it's only been in you know what 10 day effect yeah I mean,
I know Texas when I was at the Texas Capitol earlier this year advocating we were had a pending AI deep fake bill on the books and it looks like it did not
It passed one side but didn't never got to the other side. So,
A lot of states as well are trying to,
There are the fray to protect their their citizens now,
Federalism. Yeah.
You know, look, positive that that,
The congress was almost unanimous and,
And the technology industry mostly got on board but you know, yeah, I think I do worry about victim just being able to say, hey, take it down. In Allah DMCA. If there isn't a guardrail and a,
A responsive way of of addressing it to say wait a minute you're wrong here you know something like that
It right and like the DMCA how long is it
You know, there's going to have to be some kind of response and procedures and I don't know when all that has to be implemented by. So, it'll be interesting to watch and I think it's overall positive but I do worry about
Folks getting caught up in either false accusations of this stuff or expressive content that isn't,
A particular person, for example, being taken down in you know, certain amount of bridgement of of free
Expression rights and things like that too. So, we'll have to watch what happens. I'm sure it'll be,
Years and years ahead for now we'll still be seeing challenges to this kind of if it remains okay.
But now that there's a great transition into our AR corner where we have a fair lead large bit to talk about first off,
Sort of striking comment from the bench.
In the case against Meta this is Cadri versus Meta that's the case brought by author Sarah Silverman and Richard Cadry and others,
It's closely watched infringement case and the judge in the case is Vince Chabria who expressed pointed criticism over a claim by meta that using copyrighted books to train it's,
Large language model llama AI tool qualifies fair use during a hearing the judge interrupted me as legal team to say i just don't understand how that can be fair use.
Oh, sorry. I love it. You don't care about judges saying things like that.
Quite as black as as directly. So he he elaborate. He questioned me. How American claim for you some AI system that is quote capable of spitting out an infinite number of works that are going to compete with the original works.
Provide oh compensation to the authors and he warned that this kind of a model could obliterate the market for the original works
Highlighting a key factor courts have to consider in fair use that that fourth element right?
For factor. His comments suggest a deep concern that the AI generate outputs could replace human created works in the marketplace and that calling that fair use might be legally untenable
So, no ruling yet. He indicated the outcome might hinge on whether the planets can prove actual market harm from the AI training and output,
But this
Rare kind of on the bench gives authors creators and AI companies a preview of how the courts may be looking at some of these cases as they stand for and maybe some doubt on the the breadth of the fair used defense in these cases. So.
We'll be watching but it could be a turning point so we'll see what happens there. Yeah. What,
What about the cupright office report that by now everybody's alright so that's yeah been a lot going on the copyright office report in pre-publication part three on January of AI training was released,
Feels 2 weeks ago maybe.
We we've got last week here but I think it was 2 weeks ago. Middle of May. The US copyright office released a preplication version of part three of its report on quote copyright and artificial intelligence focusing on the use of copyrighted materials.
And what we just talked about training, generative AI systems. It's 108 page document. I have not read all 100 in age but eight pages.
But I I think I will because these these reports are so,
Detailed and comprehensive but on related to AI training fair use it gives us nuanced insights into how existing copyright laws apply to emerging technologies,
It actually takes a firm stands against the owners and operators of AI platforms. The chiroprite office focused on fair use.
The office teams at training may be a highly transformative use,
Okay but that is tempered by what the AI algorithm is being trained to provide as output. The algorithms are trained to produce similar material to copyright at works.
Dis favor. I train to help with moderation. Finding and blocking profanity say it's a document you're looking at
That used to be more favored. The office has adopted the theory that AI poses are real market harm which is what we just heard the judge speaking about.
For licensing works for training and for creating substitutes as to the factor of the amount and substantial substance reality of the work kind of a toss up the
The,
Document said. The nature of the works copied especially as it pertains to more expressive works dis favors of finding a fair use.
So that's interesting. So if AI trained on news articles and cyclopedia entries.
Those kinds of things are less protected. Even though I think it's like ladia botanica might disagree.
But what about the impact on the market that's usually factor four in the analysis on fair use,
And it's saying that's a major focus though it is based on more speculative measures I need delusion do the due to the creation of art or lost licenses.
You know is there going to be market delusion,
I don't know is AI going to flood the market that could harm potential market for original works even if there's not direct copying,
I think that's where the controversy is kind of lying is in this market delusion theory the report also argues that AI should not be compared to human learning and that AI is capable of perfectly,
Replicating any content it learns. It is the machine. So,
It's the report sounds to me like it's saying look we can't separate out the ingestion.
Of the the data the the training from the outputs that it's all one big infringement we have to look or one
Integrated infringement we have to look at because the nature of the outputs and that market dilution and and how similar is the output to the original work those are really factors that have to be considered so we're not I think the
It sounds like the office is saying we can't just look at the training it's more than that,
Is that?
Defendance in these cases are saying, well, all we've done is train. Yeah.
We can't control what how someone might use this oh are we going to have a well
Video tape case here just because we create the beaterbacks I mean we created the machine that doesn't mean we're responsible.
Maybe there comes into questions that the nature of the design of the machine itself did we train the machine to copy or did we train it to adapt and transform,
Oh they're training the machine toppy.
So
Yeah, interesting. Well, this is, you know, you're damned if you do, you're damned if you don't and you know, Congress says, hey, copyright office.
Give us a report. Give us a report. We need, we need, oh, register of copyrights who serves at our pleasure.
Segue give us a report.
Interesting that it was published as a preliminary draft rather than
Here it is. I don't know what's going on there. And I wasn't able to find much about it.
Hi that we all know what was going on there but anyway go ahead.
The president fires your promoter the register of copyrights. No specific reason given.
Also back up so I just didn't interrupt also as well the library and of congress was fired and the position I believe of librarian of Congress is the one who,
Has the authority to appoint the registrator of copyrights but both received an email saying see ya. I'm sorry. Go ahead.
The librarian of Congress role the the White House did come out stating reasons for the firing including that they had.
Chosen DEI and and other inappropriate books to include in the library for children and anybody who's been to the library of congress knows this is not a child friendly life and it is a,
It is a what's the word an archive not a lending library so.
Anyway, so that was a little little preposterous and the reasoning there but ultimately, no reason given for why permater was fired. The timing of the report of course,
Has to be the the nexus there in this unfavorable stance toward the AI company point of view on fair use in training and so on. So,
Broader tensions between tech and the actual property community and you know just to note,
The president and his connections in particular to mask but also other tech folks definitely viewed as a probable,
Motivation here. So per motor has filed suit against the White House for this termination arguing congress made this law congress made this office. Congress appoints you know and,
The president doesn't have the power to fire,
The director of the copyright office it's position under the library of congress and that's a legislative body and so.
So we'll see. We'll see. It's going to be a while. But it's troubling. I think. To
To see the what has again restating the copyright never really thought much about it never really thought much about the partisan politics affecting the copyright office and the library of congress it just doesn't seem like these are partisan organization agencies,
So I found this somewhat fascinating and went down a lot of,
Where I know that rabbit trails but just kind of more related to the appointment of the librarian of congress.
Prior to the last 2030 years it was a very political post and I had no idea yeah and often times it wasn't a librarian so I with the
Library and of course who was just fired not only was she a,
Yeah a library science educated person she was the
I believe the first female and I know she was the first first person of color to surf in that role. But I had no idea that that was a political appointment. It never thought about it. But it clearly,
Now we know when if you go back and look through history it was so political or just sort of patronage let's just find a job,
Maybe that's the better term. Okay. Well, maybe that's better term. Interesting.
Again Tamara's opinions nobody else's opinion just my opinion well it's not just the US that has to deal with these political questions and and fights over how to regulate these things you know,
in the UK there's a big bruh ha ha going over,
the government's,
Move to set up some.
What's the word I'm looking for is an AI regulation hundreds of leading figures from the UK's creative sectors Paul McCartney do a lipa in McAllen Royal Shakespeare company they have penned and open letter to the prime minister Kier Starmer
Warning that the bill the data use and access bills proposed copyright exception for commercial AI training,
Threatens the very life blood of their professions and the draft legislation would allow,
AI developers to ingest protected works in less creators explicitly opt out effectively shifting the burden onto the rights holders to please usage.
So opt out not opt in. Okay. So oppositions opponent to the bill urge the parliament to back an amendment requiring AI firms
To disclose what works they've used and to negotiate fair licing terms.
Rather than a free for all model that's just the default that endangers the UK as a creative a place for creativity
so the critics resorts of course say the opt out proposal forces creators to rent back their work on unfavorable terms
And they want it for a transparent framework that
This disclosure so long. As of May 20, the House of Lords rejected so so the House of Commons passed at the the House of Lords has attached an amendment,
That would mandate the disclosure of what materials were used in the training and so now the bill goes back to the commons where the debate continues and I don't know exactly how they arrive at a final answer in these things but.
The yellow at each other a lot right yes so that's the fear or is that just TV okay it's okay yes the theater of of government is is a whole other thing I guess you could say so.
I I think that's it for a rundown. Yeah, there we go. Sorry, I got distracted. And we should be more theatrical.
So I thought we're going to go long but we're actually a little shorter than most reps so I guess something went right. That's okay. Yeah. Well, Wilson
That does bring us to the end of this episode and I want to say thank you to all of our loyal listeners for spending your time with us. We would love it if you got in touch, gave us feedback just to tell us how we're doing, are we doing a good job? Are we doing a lousy job?
What would you improve? What would you like to see as a stories or topics we're not covering that you think we should?
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As well. Tamara tell folks how to find you,
Yes, you can find me at my new firm, Harper Bates. Com. You can also continue to find me at Create Protect. Com. That's where all of my historical information is housed.
Social media on most sites at.
Tamara Bennett T A M E R A B E N N E T T. And I'm going to ask folks so that we,
Can be in the category of having lots of clicks in the case we get infringed come,
One like a song wherever you listen to podcast but also,
Go visit us on YouTube. Were there live edited person? If you ever wondered what Gordon and I look like.
Maybe maybe not I don't know. Go check us out. We're how can people find us on YouTube Gordon?
Type in the words entertainment law update or just you can search on my name G Firemark is my handle on
Youtube and it's under my account. Okay. So, entertainment update. So, there you go. We're there.
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