Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Where Are All the Trolls at the CCB?

A lot of world-shaking events have occurred since 2018, when the CASE Act was introduced for the purpose of creating a small-claim copyright alternative, now known as the Copyright Claims Board (CCB). After a pandemic, an attempted coup d’ etat, and other jaw-dropping moments, it’s easy to forget all the ululating noise produced by the Electronic Frontier Foundation, Fight for the Future, Public Knowledge, Mike Masnick, the Niskanen Center, Sen. Wyden, and Computer & Communications Industry of America, et al. to warn the public about the perils of the CCB. The loudest talking point in that cacophony was the unfounded prediction that the small-claim tribunal would be an ideal forum for copyright trolls. For example…

“The CASE Act would give copyright trolls a faster, cheaper way of coercing Internet users to fork over cash “settlements,” bypassing the safeguards against abuse that federal judges have labored to create.”  – EFF, April 2018 –

A “copyright troll” is an attorney who consistently files questionable or unmeritorious claims with the intent to extract settlements from alleged copyright infringers. In response to predictions that the CCB would be a perfect venue for trolling, I and others responded by highlighting the many safeguards in the CASE legislation that were written specifically to anticipate and prevent abuse of the tribunal. In fact, that EFF quote above was a double lie because safeguards against abusive or unmeritorious claims do not easily prevent trolling in federal court, which is why trolling happens in those venues, although not nearly so often as the anti-copyright hecklers like to claim.

CCB Safeguards Triggered for the First Time

As Jonathan Bailey describes in a recent post on his blog Plagiarism Today, the CCB has, for the first time, invoked its authority to bar an attorney from filing small claims for one year. To be clear, based on Bailey’s description, the attorney in question does not deserve the description “troll,” let alone the kind of predatory actor copyright hecklers refer to when they use that term.

Instead, this attorney triggered the safeguard provisions by filing several unmeritorious claims against Amazon, which was improperly named, and foreign resellers, which cannot be named in CCB claims. As Bailey notes, the effort is understandable because, “Many creators have complained that marketplaces like Amazon, Wish, Temu and so forth have become havens for infringement.”

My point here is not to comment upon or critique this one attorney’s intentions or errors, but to emphasize that the sanctions he activated at the CCB are the same safeguards written to prevent copyright trolls from even using the tribunal, let alone abusing it. As noted in this post, the CCB is a cost-prohibitive venue for the would-be troll due to the limited number of claims that may be filed in a single year, the potential fines for intentional abuse, and the possibility of being barred from the CCB for a year.

During the roughly two years between introduction and passage of the CASE Act, a typical response to the statutory safeguards was, “Well, we can’t trust the Copyright Office.” This familiar, dimwitted tactic is indistinguishable from those who say “We can’t trust the DOJ” in response to meritorious indictments against the former president. Meanwhile, the CCB, in demonstrating that it will enforce safeguards as the law requires belies all those scary headlines predicting that sharing memes on social media would result in a tidal wave of $30,000 fines.

The anti-CASE messaging has since evaporated into the digital ether, of course, but at moments like this, I think it’s fair to say that every time these same hecklers predict anything about copyright law, they should be ignored. I don’t mean that their views should be heavily scrutinized. I mean ignored. They lie about basic facts. They use fearmongering as a primary tactic. They claim to represent interests they do not represent. And they battle chimeras to stay relevant and raise funds. On that last point, expect to see the EFF look for an opportunity to litigate the constitutionality of the CCB—an effort that will likely fail but, as I say, will make good material to promote with a “Donate Now” button.

AI “Training” Still an Open Copyright Question

On October 30, Judge Orrick of the Northern District of California largely granted the AI companies’ motions to dismiss the class-action complaints filed by Sarah Andersen, Karla Ortiz, and Kelly McKernan on behalf of all visual artists whose works have been used without permission for the purpose of “training” generative AI models. Several complaints were dismissed with leave to amend, but without detailing every allegation, dismissal, and possible cure, a few points are noteworthy for creators watching these developments with understandable anxiety.

First, the dismissals are not surprising because several of the complaints were not well founded in law. For instance, as discussed in other posts, the claim that all outputs of the AI systems are unlicensed “derivative works” of the works ingested is a football bat[1] of an argument. “I am not convinced that copyright claims based a derivative theory can survive absent ‘substantial similarity’ type allegations,” states Judge Orrick. One may be hard-pressed to find a copyright advocate who would disagree with that statement because a “derivative work” must share some protectable elements derived from the originally protected work.

Also, of note as both a matter of civil procedure and enforcing one’s rights in general, the copyright allegations by plaintiffs McKernan and Ortiz were dismissed with prejudice[2] for the simple reason that neither artist named works in suit that were registered with the U.S. Copyright Office. Although a class-action copyright suit can be filed on behalf of “all artists,” who created works that will not be registered, the named plaintiff(s) must allege infringement of registered works identified in the complaint. Timely registration (generally before the infringement occurs) is a prerequisite to filing a lawsuit in federal court.

On a more positive note, the court did not dismiss Andersen’s allegation of direct copyright infringement by Stability AI. Here, Judge Orrick finds that the complainant reasonably alleges that illegal copying occurs as part of Stability’s “training” process and, therefore, triable issues of fact are presented which cannot be dismissed at this stage. As indicated in older posts about these cases, this question—namely infringement of the “reproduction” right §106(1)—will likely be the most illuminating for both creators and AI developers as to where the legal boundaries lie when it comes to “training” with protected works.

On a related note, I was reviewing the comments submitted by the Computer & Communications Industry Association (CCIA) to the Copyright Office NOI on artificial intelligence. Although I do not disagree with every conclusion (e.g., on copyrightability of AI-generated works), CCIA is so dead certain that “training” with protected works is fair use that it states, “No one should have the ‘right’ to object to an AI model being trained on their work.” Of course, this overstatement was the first sentence in an answer to an odd question by the Office, which asks the following:

9.5. In cases where the human creator does not own the copyright—for example, because they have assigned it or because the work was made for hire—should they have a right to object to an AI model being trained on their work? If so, how would such a system work?

 I don’t understand the intent of this question. A work in copyright is protected until its term of protection expires. The rights attached to that work may be infringed at any point during the term of protection, and it makes no difference whether the rights are owned by an entity under the work made for hire doctrine or if the rights have been transferred by agreement, inheritance, sale, etc. The question of whether AI “training” constitutes infringement is in no way affected by the status or nature of the copyright owner of the work(s) used.

Unfortunately, this question provided the CCIA with a basis to respond thus:

If a right to object to the use of a work for hire existed, it would belong to the employer. However, given the volume of copyrighted works owned by large employers, allowing employers to take this type of action would exclude large swaths of data that would aid in technological progress and the quality of AI systems and create significant barriers to entry for small entities wishing to develop new AI technologies.

The “right to object” to the use of works in AI “training” may be decided in instances like the surviving claim in Andersen. Meanwhile, CCIA’s broader argument appears to be that the potential cost of doing business should inform the threshold question of copyright infringement. No doubt, AI developers would like unlimited access to free materials, but this “don’t stop the innovation” argument is not a legal question; it is a hackneyed retread of the utopian claim that copyright enforcement online will stifle the “free flow of information.”

Well, whatever is freely flowin’ out there, I wouldn’t necessarily call it information, and against that background, I see no reason to give AI developers carte blanche to exploit creators (again) for the sake of innovation that may not be progress.

[1] Football bat is a military expression for an improvised, cobbled-together tool.

[2] i.e., The complaint cannot be amended and refiled.

AIs Don’t Learn Jack Shit About Art

While people may continue to debate whether robots dream of electric sheep, let us please stop entertaining the notion that AIs “learn from artistic works the same way human artists learn” to make art. In a recent article solidly arguing that Big Tech is going to win again for exploiting creators to develop AI, Peter Csathy concludes:

For those of you who push back and argue that humans “train” on pre-existing copyrighted works all the time when they create works inspired by (or even “in the style of”) of others, let’s be clear. They typically aren’t plagiarizing or making actual copies. But generative AI is when it “scrapes” each and every word.

Csathy is right, of course, but even his counterargument still accepts the premise of the analogy. And that’s part of the problem. Because the analogy is dumb and should be rejected as dumb, or at least useless in the broader discussion about machine learning and generative AI. The comparison of AI “training” to human artistic “training” fosters a legal, moral, and cultural equivalency that should be dismissed with prejudice, if only because whatever we call the product of generative AI, it ain’t art.

A child finds a shell on the beach she thinks is pretty. She takes the shell home, cleans it off, and places it on a nightstand or other surface to decorate her room. The shell is fun to look at, and its texture, shape, and color inspire the child to hold it in her hand, study it for long periods of time, and perhaps even make new discoveries about it. The shell shares many qualities with art, but it is not art for the simple fact that no human made the object. Likewise, autonomously, AI-generated works are just pretty sea shells on the beach.

The essential anthropic contribution to artistic expression is not merely a doctrinal principle of copyright law (i.e., one cannot own rights in the “works” of nature), but it is axiomatic to the nature of art as both practice and experience. Whether good or bad, high or low, decorative or provocative, commercial or non-commercial, art, by definition, is made by humans. In fact, it is the only enterprise I can think of—other than religion—that entails an instinct or acceptance that something ineffable and profound is inherent.

Art is talismanic much like an autograph, rare book, or historic artifact. The value of an original Van Gogh is not merely underwritten by its uniqueness but by a metaphysical—perhaps even spiritual—sense that the canvas, paint, and expression are all imbued with eidolons of the artist and his place in the human continuum. The instinct to perceive meaning in objects or to form personal relationships with works of expression may be ineffable, but the phenomenon cannot be denied any more than the element of faith can rationally be stripped from religious ritual. With a little practice, I could correctly perform a religious rite, but because I’m an atheist, it would be a meaningless act. An observer might not know, but I would, and so (according to the faithful) would God. Likewise, “art” without the undefinable ingredient (call it what you will) is as empty as a prayer without faith.

Whether readers agree with any of this, perhaps it is enough to simply understand that artists do not merely “learn” to make art by studying the mechanics of prior art. Yes, that is often part of the artist’s education but not necessarily the most important part. And many artists are autodidacts without any kind of formal training. But whatever training, methods, or media may be cited to describe the journey toward art-making, what the artist fundamentally does is synthesize experience into expressive works that both comment upon and alter human experience. And since AI’s can’t have human experience, they really can’t learn shit about art.

Image source by: ipopba