Law Commons^™

Copyright's Public Reliance Interests, Bo S. L. Kim

Washington Law Review

Courts are increasingly invoking copyright law’s “scenes a faire” doctrine, which precludes infringement liability for copying typical or standard elements in a copyrighted work. But judges and commentators only cursorily discuss why certain elements constitute scenes a faire. Alternatively, they characterize the doctrine as merely an extension of other copyrightability doctrines. The result is doctrinal inconsistency in how scenes a faire applies and theoretical disagreement about why the doctrine exists.

This Article advances a “public reliance interests” theory of scenes a faire that provides descriptive clarity to the doctrine and highlights its underexplored importance to copyright law writ large. Drawing …

Robots As Pirates, Henry H. Perritt Jr.

Catholic University Law Review

Generative AI has created much excitement over its potential to create new works of authorship in the literary and graphical realms. Its underling machine-learning technology works by analyzing the relations among elements of preexisting material in enormous databases assembled from publicly available and licensed sources. Its algorithms “learn” to predict “what comes next” in different types of expression. A complete system thus can become glib in creating new factual summaries, essays, fictional stories and images.

A number of authors of the raw material used by Generative AI engines claim that the machine learning process infringes their copyrights. Careful evaluation of …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

Artificial Intelligence And Transformative Use After Warhol, Gary Myers

Washington and Lee Law Review Online

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of …

That Thing Ain't Human: The Artificiality Of "Human Authorship" And The Intelligence In Expanding Copyright Authorship To Fully-Autonomous Ai, Ernest Oleksy

Cleveland State Law Review

The U.S. Copyright Review Board (the "Board") decided that works entirely created by fully-autonomous artificial intelligence ("AI") are not entitled to copyright protections. The Board based its decision on a copyrightability requirement referred to as “human authorship.” However, the Copyright Act of 1976 (the "Act") never mentions a “human” requirement to copyright authorship, nor do most of the Board’s cited authorities. Denying authorship to intellectually-impressive and economically-valuable works under a poorly-established legal subelement is antithetical to copyright law’s history and to Congress’s constitutional mandate to “promote . . . [the] useful [a]rts . . . .” It leaves creators who …

Protection And Prevention: The Shortcomings Of U.S. Copyright Law In Combatting Cultural Appropriation In The Fashion Industry, Luke E. Steffe

IP Theory

American fashion represents an eclectic patchwork of diverse experiences and ideas; however, drawing upon Indigenous communities’ cultural identities and sacred traditions can easily cross the line between inspiration and appropriation. In reality, designs derived from culturally significant symbols, which have been stolen from Indigenous communities and stripped of their meaning, flood the American market. From runway shows to sports teams’ mascots to undergarment designs, these manifestations of cultural appropriation occur legally under the existing U.S. copyright regime, and adaptations to the current, Westernized system of intellectual property (IP) rights must integrate Indigenous perceptions of communal ownership with respect to their …

Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler

IP Theory

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …

The Perks Of Being Human, Max Stul Oppenheimer

Washington and Lee Law Review Online

The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. …

One Small Step On Tiktok, One (Possibly) Giant Leap For The Dance Community: How Tiktok Spearheaded A Change In The Seemingly Stagnant Field Of Copyright Law, Sydney L. Solferino

Catholic University Journal of Law and Technology

No abstract provided.

Managing Digital Resale In The Era Of International Exhaustion, Seth Niemi

Indiana Journal of Global Legal Studies

The Copyright Act of 1970 and Directive 2001/29/EC of the European Parliament both guarantee copyright holders’ exclusive rights of reproduction and distribution of their copyrighted material. Starting from a similar statutory basis, United States and European Union courts have diverged in their interpretation of these protections with respect to the first sale rule for digital goods. This paper analyzes the treatment of such “digital exhaustion” arguments under copyright law between the two legal systems from both the statutory interpretations employed and the policy rationales considered. The paper concludes by discussing the implications of adoption of digital exhaustion, within international law, …

A Potential Status Update For The Visual Artists Rights Act: The Role Of Social Media Response In Judicial Analysis Of Recognized Stature, Olivia Calamia

St. John's Law Review

(Excerpt)

In 2020, visual artists used the power and reach of social media platforms to share works of art inspired by the Black Lives Matter movement, which experienced renewed vigor following the police murder of George Floyd on May 25, 2020. Many of these works have taken the form of murals painted on city streets, building faces, and other spaces that promote public viewing. Many artists hope that their works will endure long past this moment of social and political reckoning. Manhattan based artist Amir Diop expressed his wishes simply but eloquently: “My hope is that [my art] is a …

Technologies Of Servitude Understanding Firmware Tpms As Interests In Personal Property, Anthony D. Rosborough

Canadian Journal of Law and Technology

Widespread computerization and embedded system design has facilitated the pervasive and latent implementation of technological protection measures (‘‘TPMs”) to restrict device firmware access. Often referred to as ‘‘digital locks,” these restrictions impose a whole host of limitations on how owners use and manage the increasing number of products and devices in which they are incorporated. In many cases, TPM restrictions can prevent activities with social, environmental, and economical benefits, including repair, repurposing, and interoperability. In response, governments around the world are now revisiting and scrutinizing their TPM anti-circumvention laws within copyright and competition policy. Beyond these perspectives, this article looks …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Rethinking Copyright Harmonization, Clark Asay

Indiana Law Journal

For nearly half a century, the United States has been one of the main proponents of harmonizing the world’s copyright laws. To that end, the U.S. government has worked diligently to persuade (and, in some cases, bully) most of the world’s countries to adopt copyright standards that resemble those found in the United States. The primary reason for this push to harmonize the world’s copyright laws is simple: the United States has long been a net exporter of copyrighted works, and so the U.S. government has sought to ensure that other countries provide U.S. authors with the same economic rights …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Articles in Law Reviews & Other Academic Journals

The Supreme Court'srecent decision in Google LLC v. Oracle America, Inc. has provided the latest word on an issue that many have described as "interoperability," and it comes at a time when lawmakers around the world are debating a policy called "interoperability" with respect to majorInternetplatforms. At first glance, these two similarly named policy conversations copyright protection of software interfaces and interconnection among competing Internet platforms, respectively have little to do with each other. Yet they are vitally intertwined: the activities and issues featured in Google are so closely linked to the questions of digital competition that interoperability reforms directed …

Submission To Canadian Government Consultation On A Modern Copyright Framework For Ai And The Internet Of Things, Sean Flynn, Lucie Guibault, Christian Handke, Joan-Josep Vallbé, Michael Palmedo, Carys Craig, Michael Geist, Joao Pedro Quintais

Reports & Public Policy Documents

We are grateful for the opportunity to participate in the Canadian Government’s consultation on a modern copyright framework for AI and the Internet of Things. Below, we present some of our research findings relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). As the consultation paper recognizes, TDM is a critical element of artificial intelligence. Our research supports the adoption of a specific exception for uses of works in TDM to supplement Canada’s existing general fair dealing exception.

Empirical research shows that more publication of citable research takes place in countries with “open” …

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

A Modern Copyright Framework For The Internet Of Things (Iot): Intellectual Property Scholars' Joint Submission To The Canadian Government Consultation, Pascale Chapdelaine, Anthony D. Rosborough, Aaron Perzanowski, Bita Amani, Sara Bannerman, Carys Craig, Lucie Guibault, Cameron J. Hutchison, Ariel Katz, Alexandra Mogyoros, Graham Reynolds, Teresa Scassa, Myra Tawfik

Reports & Public Policy Documents

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and the Internet of Things (IoT). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian, US, and international intellectual property law.

In what follows, we explain:

•The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance …

A Modern Copyright Framework For Artificial Intelligence: Ip Scholars' Joint Submission To The Canadian Government Consultation, Carys Craig, Bita Amani, Sara Bannerman, Céline Castets-Renard, Pascale Chapdelaine, Lucie Guibault, Gregory R. Hagen, Cameron J. Hutchison, Ariel Katz, Alexandra Mogyoros, Graham Reynolds, Anthony D. Rosborough, Teresa Scassa, Myra Tawfik

Reports & Public Policy Documents

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and artificial intelligence (AI). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian and international intellectual property law.

In what follows, we explain:
- The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights …

Poland’S Challenge To Eu Directive 2019/790: Standing Up To The Destruction Of European Freedom Of Expression, Michaela Cloutier

Dickinson Law Review (2017-Present)

In 2019, the European Parliament and Council passed Directive 2019/790. The Directive’s passage marked the end of a fouryear- long legislative attempt to impose more liability for copyright violations on Online Service Providers, an effort which was controversial from the start. Online Service Providers fear that the 2019 Directive, especially its Article 17, will completely change the structure of liability on the Internet, forcing providers to adopt expensive content filtering systems. Free speech advocates fear that ineffective filtering technology will infringe upon Internet users’ rights to express themselves, and legal scholars have pointed out the Directive’s inconsistency with prior European …

Automated Copyright Enforcement Online: From Blocking To Monetization Of User-Generated Content, Henning Grosse Ruse-Khan

Joint PIJIP/TLS Research Paper Series

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter Menell

All Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Prods., Inc. v. McDonald’s Corp., ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonaldland characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Brief Fof The R Street Institutte, Public Knowledge, And The Niskanen Center As Amici Curiae In Support Of Petitioner, Charles Duan, Meredith F. Rose

Amicus Briefs

The Java SE declarations of this case are simply a language of commands. As an application programming interface, or API, they exhibit features common to any language: a structured vocabulary and grammatical syntaxes, which a computer system understands as instructions to perform predefined tasks. What Oracle accuses as infringement is “reimplementation,” namely the building of a system, in this case Google’s Android platform, that repurposes the same words and syntaxes of the Java declarations.

A Siri-Ous Societal Issue: Should Autonomous Artificial Intelligence Receive Patent Or Copyright Protection?, Samuel Scholz

Cybaris®

No abstract provided.

Artificial Creativity: A Case Against Copyright For Ai-Created Visual Artwork, Megan Svedman

IP Theory

Artificial intelligence is becoming increasingly complex, and provides examples of compelling, human-like performances. One such artificial intelligence technology is known as Creative Adversarial Network (“CAN”) technology, which relies on inputs of preexisting pieces of art to create pieces of original art that pass as human-made. Whether the coders responsible for CAN-technology should be granted coverage for the resultant art remains an open question in United States jurisprudence. This paper seeks to explore why, given both software’s historical legacy in copyright law and bedrock copyright justifications, extending copyright coverage to the coders responsible for CAN technology would be a grave misstep …

Artificial Intelligence, Copyright, And Copyright Infringement, Zach Naqvi

Marquette Intellectual Property Law Review

None.

Unscrewing The Future: The Right To Repair And The Circumvention Of Software Tpms In The Eu, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

This analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerisation and TPMprotected software into their design and function. In utilising software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this …

Implementing User Rights For Research In The Field Of Artificial Intelligence: A Call For International Action, Sean Flynn, Christophe Geiger, Joao Pedro Quintais, Thomas Margoni, Matthew Sag, Lucie Guibault, Michael W. Carroll

Articles, Book Chapters, & Popular Press

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, …

Implementing User Rights For Research In The Field Of Artificial Intelligence: A Call For International Action, Sean Flynn, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, …