Friday’s Endnotes – 02/21/25

Copyright’s Big Win in the First Decided US Artificial Intelligence Case — “Copyright lawyers know the most important factor is factor 4, ‘market harm.’ Here, Ross was destroyed. First, it intended to create a competing product. Second, the Court noted that it ‘must consider not only current markets but also potential derivative ones ‘that creators of original works would in general develop or license others to develop.’’ The burden of proof was on Ross to show that there was no licensing market, and it failed to do so. With new agreements regularly announced between AI firms and publishers, and with AI rights being made available under collective licenses, this burden will become harder for defendants.”

Birkenstocks are not works of art, top German court rules in copyright case — “The company, whose sandals have over the years transformed from unglamorous footwear to coveted fashion items, wanted to stop three of its competitors from selling similar products. It had wanted the products sold by the German retailers Tchibo and shoe.com, as well as the Danish retailer Bestseller, to be pulled from the shelves and destroyed.”

Judge Rakoff’s long-awaited decision allowing DMCA 1202(b)(1) claim to proceed in Intercept v. OpenAI. Creates SDNY split with Judge McMahon decision in Raw Story — Read the decision here.

Site Blocking is Back on the US Agenda: It’s Long Overdue — “At the end of January, Rep. Zoe Lofgren (D-CA) introduced the Foreign Anti Digital Piracy Act (FAPDA). Under this draft legislation, a blocking order would apply only to illegal content and would have to be issued by a US court, with due process and judicial oversight, supported by clear evidence of copyright infringement.”