Friday’s Endnotes – 05/26/23

Former Copyright Office GC Tells House IP Subcommittee His Counterpart Got It Wrong on AI Fair Use — “Baumgarten said that he ‘could not disagree more’ with Damle’s characterization of the process and that his ‘blanket assertion that input for generative AI “is fair use” may well be simply wrong.’ Baumgarten compared Damle’s statements with the perspective of some stakeholders during the 1960s, when the photocopier gained popularity for use in businesses and education. While many dismissed the concerns of authors and scientific textbook publishers as ‘clearly fair use’, case law later proved them wrong, Baumgarten wrote.”

Biden administration backs Google in song lyrics case at Supreme Court — The case is ML Genius Holdings v. Google, and the issue involves copyright preemption of breach of contract claims. But the idiosyncratic facts at issue here may make this a poor vehicle for Supreme Court review.

European Commission Calls for Pirate Site Blocking Around the Globe — “The European Commission has published its biannual list of foreign countries with problematic copyright policies. One of the highlighted issues is a lack of pirate site blocking, which is seen as an effective enforcement measure. Interestingly, the EU doesn’t mention the United States, which is arguably the most significant country yet to implement an effective site-blocking regime.”

AI tools like ChatGPT are built on mass copyright infringement — “It takes enormous amounts of data to train a generative AI program like ChatGPT, and in order to build these tools cheaply and quickly, developers are committing mass copyright infringement. These datasets are largely created by combing and scraping the internet for every type of content, from articles, books and artwork to our photos and tweets. These methods give rise to some big questions: Is the use of our copyright-protected content for training generative AI models legal”

10 Takeaways from the SCOTUS Decision in AWF v. Goldsmith (Part I) — “There is no doubt that the AWF v. Goldsmith decision will have a monumental impact on how courts interpret fair use in the future. However, it is important to understand that the decision does not actually change copyright law or our understanding of the fair use doctrine. What the decision does is level-set fair use jurisprudence to where the Supreme Court always intended it to be after its landmark fair use case, Campbell v Acuff-Rose Music.”