Friday’s Endnotes – 01/19/24

A New Nonprofit Is Seeking to Solve the AI Copyright Problem — “On Jan. 17, Newton-Rex announced a new type of effort to incentivize AI companies to respect creators. He launched a nonprofit, called ‘Fairly Trained,’ which offers a certification to AI companies that train their models only on data whose creators have consented. Elevating companies with better practices around sourcing their training data, he hopes, will incentivize the whole ecosystem to treat creators more fairly.”

When is a derivative work original and thus protectable by copyright? Classicist’s critical edition makes its way to Luxembourg in fresh Romanian CJEU referral — “So far, the CJEU has tackled derivative works from the perspective of infringement, not copyright subsistence. Examples of cases concerning derivative works abound: some concern actual transformations, e.g., Painer (photo-fit) and Deckmyn (parody); others relate to incorporation, e.g., Pelham (music sampling) and Renckhoff (downloading and use of photograph). When the CJEU decides Institutul G. Călinescu, it will be required to tackle the question of what makes a derivative work protectable and what ‘freedom’ and ‘creativity, both cumulative requirements under the EU originality test, mean in this context.”

4 More Contested Cases Before the Copyright Claims Board — “In the last three months, some 14 claim responses have been filed in 12 cases. While this isn’t a large volume for a regular court, for the CCB this represents a serious uptick in participation by respondents, in particular by businesses. As such, it’s worth taking a few minutes to examine some of these cases and see what kinds of claimants and respondents are before the CCB and what kind of issues the board is being asked to address.”

Anthropic fires back at music publishers’ AI copyright lawsuit — “The publishers asked the court in November for a preliminary injunction to block the use of their copyrighted material to train Claude and force the company to implement ‘guardrails’ against reproducing their lyrics. Anthropic responded on Wednesday that it already has guardrails to prevent Claude from generating copyrighted material. ‘If those measures failed in some instances in the past, that would have been a ‘bug,’ not a ‘feature,’ of the product,’ Anthropic said.”

GitHub Copilot copyright case narrowed but not neutered — “The judge overseeing the AI code-copying case filed against GitHub, OpenAI, and Microsoft has dismissed some but not all of the aggrieved developers’ claims, leaving the plaintiffs a more limited but still potentially potent opportunity to challenge the alleged algorithmic reproduction of their source code.”