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This week, a federal court in Tennessee transferred to California a lawsuit brought by several large music publishers against a California-based AI company, Anthropic PBC. Plaintiffs in Concord Music Group et al. v. Anthropic PBC[1] allege that Anthropic infringed the music publishers’ copyrights by improperly using copyrighted song lyrics to train Claude, its generative AI model.  The music publishers asserted not only direct copyright infringement based on this training, but also contributory and vicarious infringement based on user-prompted outputs and violation of Section 1202(b) of the Digital Millennium Copyright Act for allegedly removing plaintiffs’ copyright management information from copies of the lyrics.  On November 16, 2023, the music publishers also filed a motion for a preliminary injunction that would require Anthropic to implement effective “guardrails” in its Claude AI models to prevent outputs that infringe plaintiffs’ copyrighted lyrics and preclude Anthropic from creating or using unauthorized copies of those lyrics to train future AI models. 

Yesterday, the Supreme Court denied certiorari in Hearst Newspapers, LLC v. Martinelli, declining to determine whether the “discovery rule” applies in Copyright Act infringement cases and under what circumstances.  As a result, most circuits will continue to apply the rule to determine when an infringement claim accrues for purposes of applying the Copyright Act’s three-year statute of limitations.

Last week, a divided Supreme Court held in Warner Chappell Music, Inc. et al. v. Nealy et al. that a copyright plaintiff who timely files an infringement lawsuit based on the “discovery rule” may recover damages for infringements that occurred outside the Copyright Act’s three-year statute of limitations period.[1]  A claim generally accrues when an infringing act occurs, but many circuits apply a “discovery rule,” pursuant to which a claim accrues when a plaintiff has (or with reasonable diligence should have) discovered the infringement, which could be many years later.  Courts applying this rule have recently disagreed on how far back damages are available, with the Second Circuit holding that a copyright claimant may recover only three years’ of damages, even if the suit was otherwise timely under the discovery rule.  The Supreme Court rejected that conclusion, holding that “no such limit on damages exists” in the Copyright Act, which “entitles a copyright owner to recover damages for any timely claim” no matter when the infringement occurred.  

Last week the Fourth Circuit reversed a $1 billion copyright verdict against an internet service provider and ordered a new trial on damages allegedly arising from illegal music downloads by its subscribers.  In Sony Music Entertainment et al. v. Cox Communications Inc. et al.,[1] a group of music producers belonging to the Recording Industry Association of America brought suit against Cox for contributory and vicarious copyright infringement based on allegations that Cox induced and encouraged rampant infringement on its service.  In 2019, a jury found Cox liable on both theories for infringement of 10,017 copyrighted works and awarded $99,830.29 per work, for a total of $1 billion in statutory damages.  On appeal, the Fourth Circuit issued a mixed ruling – upholding the finding of contributory infringement but reversing the vicarious liability verdict and remanding for a new trial on damages. 

This week saw yet another California federal court dismiss copyright and related claims arising out of the training and output of a generative AI model in Tremblay v. OpenAI, Inc.,[1]a putative class action filed on behalf of a group of authors alleging that OpenAI infringed their copyrighted literary works by using them to train ChatGPT.[2]  OpenAI moved to dismiss all claims against it, save the claim for direct copyright infringement, and the court largely sided with OpenAI. 

This third part of our four-part series on using synthetic data to train AI models explores the interplay between synthetic data training sets, the EU Copyright Directive and the forthcoming EU AI Act.

On November 28, 2023, U.S. District Judge Fred W. Slaughter for the Central District of California granted motions for summary judgment against a screenwriter’s claims that the creation of Ad Astra, the 2019 Brad Pitt film, had infringed on a script he had written.[1]  The Court reasoned that the defendant companies could not have possibly copied the script in question, as they did not have access to the script until after Ad Astra was written.  Additionally, the court stated, the two films were significantly different so as to conclude there was no infringement, even if it could be shown there was access.  

On October 19, 2023, the U.S. Copyright Office announced in the Federal Register that it will consider a proposed exemption to the Digital Millennium Copyright Act’s (“DMCA”) anti-circumvention provisions which prohibit the circumvention of any technological measures used to prevent unauthorized access to copyrighted works.  The exemption would allow those researching bias in artificial intelligence (“AI”) to bypass any technological measures that limit the use of copyrighted generative AI models.

The U.S. District Court for the District of Columbia recently affirmed a decision by the U.S. Copyright Office (“USCO”) in which the USCO denied an application to register a work authored entirely by an artificial intelligence program.  The case, Thaler v. Perlmutter, challenging U.S. copyright law’s human authorship requirement, is the first of its kind in the United States, but will definitely not be the last, as questions regarding the originality and protectability of generative AI (“GenAI”) created works continue to arise.  The court in Thaler focused on the fact that the work at issue had no human authorship, setting a clear rule for one end of the spectrum.  As the court recognized, the more difficult questions that will need to be addressed include how much human input is required to qualify the user as the creator of a work such that it is eligible for copyright protection.