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Home :: Copyright Law

08 Jan 2024

Three weak copyright suits against OpenAI and one stronger one Copyright Law
In the past few months there have been four similar suits filed in New York against OpenAI and Microsoft. All four look superficially similar, and all are likely to be heard by the same judge, but one of them is a lot stronger than the other three.

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18 Dec 2023

The Internet Archive defends Controlled Digital Lending again Copyright Law

The Internet Archive has a program they call Controlled Digital Lending (CDL). They have scanned a whole lot of physical books, put the books in storage, and then lend out the scans, ensuring that each scan is lent to one person at a time. Publishers don't like this, sued several years ago, and the Archive lost thoroughly in April. The judge ruled on a motion for summary judgment without a trial, which means the judge believed there was no significant dispute about the facts. He found that CDL was not fair use, the scans were a substitute for the paper books, and the Archive lost.

Unsurprisingly, the Archive has appealed the ruling. This looked to me to be a long shot. The appeal is to the Second Circuit which decided the Google Books case. Their decision said that Google's scanning is OK because they don't provide the full contents of the books, but do other stuff that makes it transformative. Since the Archive does provide the full contents of the books, they're out of luck.

The Archive appealed in September but until recently the only activity has been routine stuff like which lawyers will be representing whom On Friday they filed their brief laying out the legal theory of the appeal, and I have to say it's surprisingly strong.

They say that the judge misunderstood what CDL is, that he got all four prongs of the fair use analysis wrong, and that there are significant disagreements about facts that prevent summary judgment.

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14 Aug 2023

The Internet Archive hops out of the copyright frying pan into a new and different fire Copyright Law

In 2020 a group of book publishers sued the Internet Archive over their Controlled Digital Lending program, which made PDF scans of books and lent them out from the Archive's web site. For books still in copyright, the Archive usually limited the number of copies of a book lent to the number of physical copies of the book they had in storage. Several publishers sued with an argument that can be summarized as "that's not how it works". In late March the judge made a ruling that can be summarized as "of course that's not how it works." (More background here.)

After several months of quiet negotiations, on Friday the two parties filed a proposed consent agreement in which the Archive promised to stop it, and pay the plaintiffs an undisclosed but presumably not huge amount of money. The only disagreement was exactly what they promise to stop, with letters from each to the judge explaining their positions.

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07 May 2023

Can large language models use the contents of your web site? Copyright Law
Large Language Models (LLM) like GPT-4 and its front end ChatGPT work by ingesting gigantic amounts of text from the Internet to train the model, and then responding to prompts with text generated from those models. Depending on who you ask, this is either one step (or maybe no steps) from Artificial General Intelligence, or as Ted Chiang wrote in the New Yorker,
ChatGPT Is a Blurry JPEG of the Web. While I have my opinions about that, at this point I'm considering what the relationship is under copyright law between the input text and the output text. Keeping in mind that I am not a lawyer, and no court has yet decided a LLM case, let's take a look.

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  posted at: 13:17 :: permanent link to this entry :: 0 comments
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14 Apr 2023

Is there any hope for Controlled Digital Lending, and should there be? Copyright Law

The Internet Archive has for several years run a program they call Controlled Digital Lending (CDL.) The Archive takes physical paper books, scans them, puts the books in storage, and then lends out the scans, with each scan lent to only one person at a time. Their theory is that the scans are equivalent to the books, so what they're doing is the same as when a library lends physical books.

Not surprisingly, book publishers don't like this since they have their own idea about how e-books work. In 2020 several publishers sued, and on March 24 the court ruled quite firmly in favor of the publishers and said there is no such thing as CDL. While there was a lot not to like about the plaintiffs, and there are certainly reasons to want CDL to exist in some form, this decision reminds us that wishful thinking is not a substitute for legal research. What we think the law should say, or wishes it said, is not what it actually says. It also reminds us yet again why copyright law is such a poor fit for digital materals.

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