AI COPYRIGHT BATTLEFIELD: Two Recent Decisions Reshape the Creative Landscape

The Northern District of California has fired the opening salvos in what promises to be a protracted legal war over AI training data. Two judges reached similar conclusions but through dramatically different reasoning—creating a complex legal landscape that every copyright creator should pay attention to.

What makes these cases particularly fascinating? Even though there were findings of fair use in both cases, “[m]uch of the press coverage has treated these holdings as sweeping endorsements of fair use, but each ruling is narrow and fact-specific.“ Judge Chhabria, presiding over the Kadrey vs. Meta case, even stated bluntly that "in most cases," training LLMs on copyrighted works without permission is likely infringing and not fair use. Yet he still ruled for Meta because the plaintiffs "made the wrong arguments and failed to develop a record."

These rulings highlight three critical battlefronts that will determine the future of creative compensation:

• Evidence of AI outputs that replicate original works
• The emerging concept of "indirect substitution" market harm
• The unprecedented ability of AI to "flood the market" with competing content

To read the full analysis, click here: Fair Use and AI Training - Two Recent Decisions Highlight the Complexity of This Issue

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YOUR TAKE: THE FAIR USE DEBATE

Where do you stand on AI training with copyrighted materials? (post your answer in the comments below and state why)

1. It's clearly fair use - no compensation needed

2. LLMs should pay standard licensing fees (normal book price)

3. LLMs should pay higher premium rates reflecting potential market impact

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NAVIGATE THE AI FRONTIER - CREATORS ON BOTH SIDES

As courts refine these precedents, creative professionals face unprecedented challenges whether protecting original works or incorporating AI into their creative process. Strategic legal guidance is essential in this rapidly evolving landscape.

My practice serves creators across the AI spectrum:

For traditional creators: I develop tactical approaches to document potential infringement, structure rights agreements that account for emerging technologies, and create licensing strategies that protect your market position against algorithmic competition.

For AI-assisted creators: I guide you through the ethical and legal complexities of AI-generated content, establish workflows that maximize your copyright ownership, and help you create documentation trails that validate your rights to AI-assisted works.

Don't navigate these complex waters alone. The legal strategies you implement today will determine whether you can confidently claim, defend, and monetize your creative output tomorrow.

Schedule a consultation at https://www.djimlaw.com/contact to develop your customized AI strategy - whether you're protecting your work from AI or incorporating AI into your creative process.

Alarm Bells for Creators: US Copyright Office AI Report and Leadership Shakeup

The recent developments at the US Copyright Office have sent shockwaves through the creative industries, raising serious concerns about the future of intellectual property rights and the creative landscape. Two major events have unfolded that demand immediate attention from creators in the music, film, and book industries.

1. US Copyright Office AI Report: A Double-Edged Sword

The US Copyright Office has released a pre-publication version of its highly anticipated report on AI and fair use. This report, the third part of a comprehensive AI study, examines the legal implications of using copyrighted works to train generative AI models.

Key findings and implications:

a) Fair Use and Market Impact: The report introduces an expansive interpretation of the fourth fair use factor, identifying three categories of potential market harm caused by generative AI training:

• Lost licensing opportunities

• Lost sales

• Market dilution

The concept of "market dilution" is particularly noteworthy, as it suggests that the sheer volume of AI-generated content could potentially diminish the value of original works.

b) Human Authorship: The report reiterates the Copyright Office's stance on the necessity of human authorship for copyright protection. Works entirely generated by AI are not copyrightable, while those involving human creativity in conjunction with AI tools may be eligible for protection.

c) Prompts and Copyrightability: The mere use of prompts, even if detailed, does not yield copyrightable work. This position challenges the notion that extensive prompt engineering could be a basis for copyright claims. For a more thorough analysis of the report, I recommend reading this article at Copyright Lately by Aaron Moss: (Click HERE).

2. Leadership Shakeup: A Threat to Copyright Stability

In a sudden and unprecedented move, for reasons that seem sinister, the Trump administration has fired both Dr. Carla Hayden, the Librarian of Congress, and Shira Perlmutter, the Register of Copyrights and Director of the U.S. Copyright Office.

Implications for creators:

a) Policy Uncertainty: The abrupt removal of these key figures introduces significant uncertainty regarding the future direction of copyright policy and enforcement.

b) Potential Policy Shifts: There are concerns that these firings may lead to a reversal or modification of recent copyright policies, particularly those related to AI and creative works.

c) Disruption of Ongoing Initiatives: The leadership change may disrupt or delay important copyright initiatives and studies, potentially affecting creators' rights and protections.

Short-term and Long-term Consequences:

• Short-term:

  • Increased uncertainty in copyright registration and enforcement processes

  • Potential delays in addressing emerging copyright issues, particularly those related to AI

  • Confusion among creators about the status of recent copyright guidance and policies

• Long-term:

  • Possible shifts in copyright policy that could fundamentally alter the landscape for creators

  • Potential weakening of copyright protections if new leadership adopts more lenient policies towards AI-generated content

  • Uncertainty in international copyright negotiations and agreements

Call to Action for Creators:

1. Stay Informed: Regularly check updates from reputable copyright law sources and industry associations.

2. Document Your Creative Process: In light of the emphasis on human authorship, maintain detailed records of your creative process, especially when using AI tools.

3. Review Contracts: Ensure your contracts address potential AI-related copyright issues and include provisions for protecting your work from unauthorized AI training.

4. Advocate: Join or support organizations that advocate for creators' rights, such as:

   • The Creators Guild of America (https://creatorsguildofamerica.org/)

   • The Authors Guild (https://www.authorsguild.org/)

   • The Digital Creators Coalition (https://www.digitalcreatorscoalition.org/)

   • The Recording Academy (https://www.grammy.com/recording-academy)

   • The Directors Guild of America (https://www.dga.org/)

5. Engage with Policymakers: Write to your representatives expressing your concerns about copyright protection in the age of AI.

6. Collaborate and Share Knowledge: Engage with fellow creators to share experiences and strategies for navigating these changes.

The creative landscape is at a critical juncture. As creators, your voices and actions are crucial in shaping the future of copyright law and ensuring that your rights are protected in this rapidly evolving digital age. Stay vigilant, stay informed, and most importantly, continue creating while advocating for your rights.

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