On August 18, 2023, the U.S. District Court for the District of Columbia denied Dr. Stephen Thaler’s motion and granted the U.S. Copyright Office’s cross motion to dismiss Thaler’s complaint. The facts of Thaler’s struggle to overcome the Copyright Office’s Human Authorship Requirement and register copyright in an AI-generated work are recounted here.
In this week’s News of Note, ransomware attacks break records and wipe data for a majority of a cloud provider’s customers, while one RaaS case delivers useful details about cybercriminal techniques and tactics. Also, the development of algorithms to protect against quantum computers continues, facial recognition software nabs an elderly criminal, and more.
Whose content is it anyway? This is one of the questions that many hope will be answered by a federal court in Thaler v. Perlmutter. In June 2022, computer scientist Dr. Stephen Thaler sued the U.S. Copyright Office to redress the denial of his application to register copyright in his AI system’s visual output under the Office’s “Human Authorship Requirement.” A few months later, the Office again enforced this requirement, reversing its decision to register Kristina Kashtanova’s illustrated comic book, Zarya of the Dawn, after it became clear that AI was used to generate those images. While Thaler now asks a U.S. federal court to determine whether an AI system can author copyrightable work, and to effectively overrule the Office’s “Human Authorship Requirement,” it remains to be seen whether the court will tackle those broad issues, or instead narrowly focus on whether the Office had reasonable grounds to deny Thaler’s application.
Private investors are pouring billions into space-based endeavors. While satellite technology is a common use of these dollars, money is also flowing to projects like the (highly publicized) building of reusable rockets by SpaceX and others, cleaning up “space trash,” mining on the moon and even tackling climate change and health. The renewed interest comes on the heels of more affordable building materials and the arrival of modular components and 3D printing for such projects. The Brookings Institute makes the case that this latest round of space exploration is fueling the fourth industrial revolution.
On June 29, 2023, in Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. ___ (2023), the U.S. Supreme Court held that the Lanham Act could not extend to trademark infringement that occurred almost entirely outside the United States. While it is not surprising that the Court adhered to the longstanding presumption against extraterritorial application of U.S. law, the rationale underlying its decision may complicate future U.S. trademark actions to stop foreign-sourced counterfeits.
On June 13, 2023, the American Society of Composers, Authors and Publishers (ASCAP) announced a series of initiatives to guide and protect creators as artificial intelligence (AI) continues to develop and impact the music industry. ASCAP has a strong history of supporting artists, technological innovation and music royalties. Following in suit, ASCAP’s AI initiatives consist of a series of events and principles that seek to promote AI education, innovation and implementation in the music industry, and ensure that artists are justly compensated. The initiatives include the 2023 ASCAP Lab/NYC Media Lab Music and AI Challenge, the ASCAP Experience, the ASCAP AI Symposium, and ASCAPs AI Principles and Advocacy.
On May 5, 2023, the National Advertising Division (NAD) of BBB National Programs handed down its Final Decision in T-Mobile USA, Inc. v. Comcast Cable Communications Management, LLC. The NAD found that Comcast made several express and implied claims that were disparaging and/or unsubstantiated regarding T-Mobile’s home internet service, T-HINT, by way of television and online advertising. The decision is a useful reminder that advertiser claims must be (1) truthful, (2) not misleading, and (3) supported by a reasonable (and often evidentiary) basis.
The European Union (EU) has made steady progress in shaping its proposed AI law, known as the “AI Act.” With the European Parliament approving its preferred version, the AI Act has now entered the final stage of the legislative process (a three-way negotiation, known as “trilogue”). The aim is to agree to a final version of the law by the end of 2023. The EU’s objective is to ensure that AI developed and utilized within Europe aligns with the region’s values and rights, including ensuring human oversight, safety, privacy, transparency, non-discrimination, and social and environmental well-being.
On June 8, 2023, a unanimous U.S. Supreme Court resolved the petition in Jack Daniel’s Properties, Inc. v. VIP Products LLC with two narrow holdings: (1) the threshold trademark infringement test espoused by the Second Circuit in Rogers v. Grimaldi for “expressive” works does not apply to allegedly infringing trademark use; and (2) humor and parody does not constitute “non-commercial use” within the meaning of the Lanham Act’s exclusion from liability for trademark dilution. In so doing, the Supreme Court reversed the Ninth Circuit’s ruling and remanded to the District Court, leaving questions about the continued viability of the Rogers test, as well as the bounds of the Lanham Act’s “non-commercial use” exclusion from dilution liability.
On May 31, 2023, the U.S. Copyright Office (USCO) held the final session of its Spring 2023 AI Listening Session. This session was held across two panels and discussed the copyright implications of AI-generated content (AIGC) in music and sound recordings. The panelists consisted of various stakeholders in the music industry such as founders of AIGC music companies, songwriters, professors, and counsel to music and streaming companies.
