John R. Wierzbicki
Law Offices of John R. Wierzbicki
In this edition of the Copyright Roundup, we present the major developments in copyright through January, 2024. If you are interested in discussing items like these with other copyright lawyers, we invite you to the monthly meetings of the Copyright Interest Group which take place via Zoom at 12pm Pacific time on the first Wednesday of each month. Attendees have included representatives of the US Copyright Office and the USPTO, in-house counsel, academics, lawyers from large and small firms (and those in-between), and solo practitioners. There is also a newly formed ListServ to foster communication outside of our regularly scheduled meetings. If you would like to receive an invitation to join these lively (and no-stress) discussions, you may contact the IG's Chair, Marcus Peterson (marcus.peterson@oracle.com) or the vice-chairs—Angus MacDonald (Angus.MacDonald@ucop.edu) or me (jwierzbickilaw@gmail.com).
On December 27, 2023, New York Times filed a copyright infringement suit against OpenAI and Microsoft, alleging that the ChatGPT and Copilot large language models "can generate output that recites the Times content verbatim, closely summarizes it, and mimics its expressive style," thus depriving the Times of revenue. It also alleges that in training its system, OpenAI gave the Times content "particular emphasis." Apparently, the Times had been negotiating a licensing deal with both companies but those talks fell through. The Times is seeking "billions of dollars in statutory and actual damages" along with injunctive relief and removal of the Times' work from the companies' datasets. The case is New York Times Co. v. Microsoft Corp. et al., case no. 1:23-cv-11195 (SDNY).
Open AI has now posted a statement online, in which it insists that the lawsuit is without merit, and summarizes its position as follows:
- OpenAI collaborates with news organizations including the Associated Press, Axel Springer (a German media company), and the American Journalism Project, and is creating new opportunities for them.
- Although training AI models using publicly available internet materials is fair use, OpenAI provides an opt-out for publishers "because it's the right thing to do."
- "Regurgitation," or returning ingested content "as is," is a rare bug; the intentional
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- manipulation of the models to cause them to regurgitate "is not an appropriate use of our technology and is against our terms of use."
- OpenAI thought that talks with the New York Times were "progressing constructively" and that regurgitation did not seem to be a substantive issue until they were surprised by the lawsuit. OpenAI remains "hopeful for a constructive partnership with The New York Times."
UIRC-GSA Holdings, which acquires and manages properties for use by the U.S. government, recently lost the appeal of its copyright action against William Blair, a financial services company. Blair was helping UIRC with a bond offering when a third company undertook a similar offering. Both UIRC and the third company used certain documents during the offering process. UIRC showed Blair its documents, which UIRC had copyrighted. When UIRC learned that Blair was involved in the similar offering, UIRC sued Blair for copyright infringement. Blair prevailed at summary judgment and the district court awarded Blair attorneys' fees under the Copyright Act. UIRC appealed, arguing that the district court erred when it ruled that UIRC lacked the requisite originality for valid copyrights in the documents and by awarding fees to Blair.
In its decision on January 12, 2024, the Seventh Circuit agreed with the district court judge that the UIRC documents lacked originality. UIRC did not independently create most of the language in the documents at issue, but instead copied it from a third party. Any new language inserted by UIRC lacked the creative expression required for copyright protection because it was either facts, fragmented phrases, or language dictated solely by functional considerations. The court also upheld the district court's award of attorneys' fees of $1,531,611.75 as an appropriate exercise of the court's discretion. The case is UIRC-GSA Holdings, LLC v. William Blair & Company, LLC, et al., case no. 15-cv-9518 (7th Cir.)
Google has reported that it is expecting to receive it 8 billionth DMCA takedown request in 2024. At present, it is receiving over 30 million requests per week; by contrast, Google...
