Posts in Copyright Litigation

Cox Communications, Inc. filed its opening brief with the U.S. Supreme Court on August 29, arguing that the justices should reverse a U.S. Court of Appeals for the Fourth Circuit decision holding the internet service provider (ISP) liable for contributory copyright infringement based on the actions of its users. According to the brief, the case presents fundamental questions regarding whether an ISP is “materially contributing” to infringement by providing internet infrastructure and what constitutes “willful” conduct under the Copyright Act.

In a Motion for Summary Judgment filed earlier this weekwith the U.S. District Court for the District of Colorado, AI artist Jason M. Allen requested that the court overturn the Copyright Office’s refusal to register his award-winning image “Théâtre D’opéra Spatial,” created with the AI system Midjourney. The U.S. Copyright Office Review Board previously denied registration for Allen’s artwork. The Review Board asserted that when AI produces complex works solely from a human prompt, the “traditional elements of authorship” are executed through the technology and not by the human user.

According to a Consent Motion filed Tuesday, August 26, with the U.S. Court of Appeals for the Ninth Circuit, Anthropic has requested that its petition appealing a district court ruling on class certification and its Emergency Motion to stay district court proceedings pending disposition of that petition both be held in abeyance. The request is based on the execution by both Anthropic and plaintiffs, Andrea Bartz, Charles Graeber, and Kirk Wallace Johnson, of “a binding term sheet intended to memorialize the terms of a proposed class settlement.”

The U.S. Court of Appeals for the Ninth Circuit ruled Friday, August 15, that internet service providers (ISPs) who merely serve as a conduit for service are protected from the requirements of Section 512(h) of the Digital Millennium Copyright Act (DMCA) under one of that section’s four safe harbors.Capstone Studios Corp. sought to subpoena Cox Communications, Inc./ CoxCom LLC to obtain the identities of 29 users it claimed to be showing pirated copies of its movie, Fall via BitTorrent. One of the users objected and the United States District Court for the District of Hawaii held that “Cox qualified for one of § 512’s four safe harbors—17 U.S.C. § 512(a)—because Cox merely provided its users with an Internet connection and played no other role in the alleged infringement.”

U.S. District Court for the Northern District of California Judge William Alsup on Monday denied Anthropic’s motion to stay proceedings in Bartz et al. v. Anthropic PBC. Anthropic had sought to pause the case while pursuing appellate review of two rulings, one on fair use and the other on class certification. The order maintains the trial date set for December 1, 2025, and says the case proceedings must continue.

When the framers made provision for copyright law in the U.S. Constitution, they probably didn’t envision a system that favors the wealthy. Yet today, that’s what we’ve got. High litigation costs and slow-moving courts have turned copyright enforcement into a luxury good. Unless you’re sitting on a pile of cash, your rights are often fool’s gold.

On Wednesday, July 16, the U.S. Senate Judiciary Committee’s Subcommittee on Crime and Counterterrorism held a hearing titled “Too Big to Prosecute?: Examining the AI Industry’s Mass Ingestion of Copyrighted Works for AI Training.” Subcommittee Chair Josh Hawley (R-MO) called generative AI companies’ use of copyrighted works to train their chatbots and other large language models (LLMs) “the largest IP theft in American history” and rejected the suggestion that the courts should determine the path forward.

Following a June order of the U.S. District Court for the Northern District of California on fair use in a case brought against generative AI tool Anthropic by a group of authors, Anthropic has now requested permission to file an interlocutory appeal. The underlying lawsuit was filed by journalists and book authors Andrea Bartz, Charles Graeber and Kirk Wallace Johnson in August 2024 against Anthropic on behalf of a class of plaintiffs, alleging widespread copyright infringement of “hundreds of thousands of copyrighted books.” The suit challenged only the inputs of the LLMs, not the outputs.

The U.S. Supreme Court today took the advice of the Solicitor General in granting a petition for certiorari brought by Cox Communications and denying one brought by Sony in the same matter. Music publishers including Sony, Arista Records, Warner Music and Universal Music Group filed copyright claims against Cox in July 2018, alleging that Cox was liable for the infringement of 10,017 musical works that were illegally distributed by the ISP’s subscribers. A 2020 jury verdict found Cox liable for both vicarious and contributory infringement, leading to a $1 billion damages verdict against Cox after damages were increased for the jury’s willfulness finding.

Last week, a coalition of entertainment companies filed a lawsuit against Midjourney, an AI company that builds generative tools using publicly available data. These lawsuits follow similar actions against other leading AI firms. The strategy is clear: ensnare AI startups under an avalanche of litigation before they can challenge entrenched business models. If established media wins this battle, it won’t just hurt AI companies—it will harm the millions of American businesses and consumers who stand to benefit from the most transformative technology since the internet itself.

Yesterday the U.S. District Court for the Northern of District of California ruled that a number of well-known authors, including Sarah Silverman and Ta-Nehisi Coates, failed to successfully argue that the market for their works was significantly harmed by Meta’s use of the works to train its generative AI tool, Llama….. In a 40-page summary judgment ruling issued just two days after another landmark decision on whether AI inputs infringe copyright, Judge Vince Chhabria said that the copying of works for training large language models (LLMs) will usually be found to be infringing, but that in this case the plaintiffs’ arguments missed the mark.

The advent of generative AI brings to the forefront many novel and complex legal questions related to fair use and copyright infringement. Historically, assessing whether a particular use qualifies as fair use has been analyzed through an established economic framework. Applying the same methodology to copyright matters involving generative AI, however, presents unique challenges—primarily due to the distinct nature of the AI-generated content and the processes involved.  

On Monday, the U.S. District Court for the Northern District of California issued a mixed  order on fair use as it relates to generative AI, in part likening the training of Large Language Models (LLMs) to the process of human learning, in a case brought against generative AI tool Anthropic by a group of authors. The lawsuit was filed by journalists and book authors Andrea Bartz, Charles Graeber and Kirk Wallace Johnson in August 2024 against Anthropic on behalf of a class of plaintiffs, alleging widespread copyright infringement of “hundreds of thousands of copyrighted books.” The suit challenged only the inputs of the LLMs, not the outputs.

In a moment that was both inevitable and seismic, Disney and Universal filed a high-profile copyright infringement lawsuit against Midjourney, a leading generative AI company specializing in image and video synthesis. The studios claim that Midjourney trained its generative models on copyrighted characters, including Yoda, Bart Simpson, Iron Man, Shrek, and others, without authorization, and facilitated public generation of derivative works through its platform.

Disney Enterprises, Inc. et. al. and Universal City Studios Productions LLLP, et. al. filed a complaint today with the U.S. District Court for the Central District of California against the AI image generator, Midjourney. The suit accuses Midjourney of being a “bottomless pit of plagiarism.” According to the plaintiffs, Midjourney could have stopped the infringement and copying of their copyrighted works at any time—either by controlling the data used to train, by controlling the prompts users input, or via technological protection measures—but chose not to and failed to respond to letters informing them of the infringement prior to the lawsuit.