Judge Orrick throws out most of the class action lawsuit against Stability.ai, Deviant Art and Midjourney. But the plaintiffs will be back with an amended complaint.
"copyright law is all about preserving the past at the expense of the future” This sounds great, but it isn’t true. Copyright law is definitely about preserving something at the expense of something. “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” It is about preserving the authors/inventors exclusive right [including their exclusive right to determine how their work will be used (with the Fair Use exception) and the right to transfer ownership] for a limited time [don’t get started on protesting the current implementation of ‘limited time’; we’re probably in agreement on that issue] AT THE EXPENSE OF someone unilaterally making use of their work without their permission within that limited time window [I believe you wrote about the consequences of that in an earlier post of your series on copyright] regardless of whether that someone profit from it.
This flows into your other statement which is also not true; "Copyright law is the first line of defense against technological disruption, but it doesn’t always work.” This is a misrepresentation of the history of negotiations between the copyright owners and the makers of VCRs, DVD players, DVRs, file-sharing, search engine indexing and streaming. No one stopped Napster from filesharing copyrighted IP voluntarily given to them by the owners of the IPs. They could have pulled a Netflix and established a whole new industry. Years of negotiations among the IP Industry, PC Industry, CE Industry, and public interest groups [including the EFF] were meant to find the balance between honoring copyright and allowing new consumer uses. But CE, PC, and public interest groups chose to release press statements about ‘progress being made’ and wait out the clock until the market penetration of their devices was so great that there was no way to implement technologies, which they fought, that would respect creators’ rights - including UGC creators.
But you understand all this, since you write: "At the core, copyright is a simple economic deal. A trade-off. The government agrees to grant a time-limited monopoly to an artist or author, but only in exchange for the right of the public to make use of the work in the specific ways defined as Fair Use.” But your statement is why Fair Use is just as much in play as Copyright. Fair Use is a defense, not a right. It was premised on it having de minimus impact on the Copyright owners ability to monetize the work. Since a Fair Use claim occurs after the release of the content in an environment where, now, once the IP is out it cannot be recalled, then Fair Use and Copyright need to be reconsidered as two sides of the same coin as these discussions move forward.
Of course all of this may be mute when the courts decide that, if photographs can be copyrighted, and digital cameras already are using AI to create the best shot, then why can’t the direct output of AI be similarly copyrighted. That will allow copyright and fair use to remain as legal constructs as the volume of content explodes to the point where enforcement is impractical - at least until an AI-based solution is proposed.
From The Verge: How to use the Pixel 8’s Best Take to pick your favorite faces in group photos
Best Take is available now on the Google Pixel 8 and Pixel 8 Pro, but we expect it to come to older Pixel phones sometime in the near future. The way it works is simple. You take a bunch of shots of your group as you normally would and then edit your favorite facial expressions into a single frame after the fact. Sounds a little creepy, and honestly it is, but it’s a real lifesaver — especially if you’re taking pictures of kids.
Best Take will only work with images taken in a burst of very similar shots all captured within a 10-second timeframe. Faces need to be clearly visible and, for the best results, not obscured by objects or hands in any of your shots. Oh, and it only works with human subjects right now.
Thanks for your comment. What I wrote is my opinion. I maintain that it is true. I see that you hold a different opinion. Perhaps we disagree, or perhaps you misunderstand me. Or perhaps your professional role obliges you to write comments to defend the companies that pay your salary.
In the hands of major media companies that seek to prevent innovation that changes business models and wish to extract the maximum rent from their monopolies, copyright is about preserving the past at the expense of the future. I don't think you can present any examples of these industries embracing disruptive innovation. It's a documented fact that they fought digital transformation, particularly online distribution, with every tool and weapon at their disposal, and they very often lost.
In no case were any of the copyright monopolies the first to adopt a novel technology. Not once, never.
Moreover, these companies have warped copyright into a weapon. The copyright aggregators (principally motion picture studios, record labels and book publishers) have distorted copyright into grotesque shapes that no longer resemble the original intent, thereby fashioning a weapon that is routinely used to inflict maximum economic harm on any company that seeks to cater to consumer desires by modifying the distribution and delivery of content.
The provision in the US Constitution in Article 1 Section 8 Clause 8 very clearly states the purpose of copyright is to foster innovation: "To promote the progress of Science and the useful Arts". That is a benefit to society at large. Fair use is the legal mechanism for society to use copyrighted works without permission to conduct the experimentation and invention that will promote the progress of science and the useful arts.
No one can make the argument that the media industry is supportive of innovation. As an industry, the media monopolies always prioritize preserving the monetization systems established in the past.
The motion picture, music and book publishing companies have used copyright to fight the future and defend the past for 30 years, probably longer. I refer to 30 years because I have firsthand experience, as a senior executive inside television and motion picture companies, and also as a co-founder of digital media startups. I was present in boardroom discussions where studio heads vowed to use every tool at their disposal, including copyright, to fight online distribution. This worked for a little while, but it's a bit like putting a finger in the dike when the water level is rising. It never works in the long run, and worse, it pits the publishing company against their customers.
The essence of innovation is finding new ways to please and delight customers. This is precisely what the media companies fight against.
It therefore comes as no surprise that the leading motion picture companies are failing spectacularly in the race to build audience for SVOD streaming services. The studios gave Netflix a ten year head start through lassitude and inaction. That's because they prioritized squeezing every drop of revenue from the old business model of before migrating to SVOD.
Since you reference Napster, you should not neglect the fact that RIAA and the record labels sued 30,000 music fans, in most cases inflicting grievous economic harm and in some cases bankrupting families. That's right, the record companies actually sued their customers, often for ridiculous amounts of money relative to any possible damage. That's not all, record label executives lied to Congress, making up grossly exaggerated claims about the number of downloads and the economic damage of file sharing, and thereby enlisted Congress to impose unfunded mandates on US colleges and universities to police their networks for fictitious file sharing activity that never occurred.
At one point in the mid 2000s, the music industry claimed that their annual losses due to file sharing exceeded the entire profit of the motion picture, music and book publishing industries combined. Years later this ruse was exposed by Julien Sanchez, and it was later carefully documented in the book Moral Panics and Copyright Wars by William Patry. These authors demonstrated that the figures cited by RIAA were entirely fictitious.
Subsequent research revealed the detail that the most avid file sharers were likely to increase consumption of CDs.
In my opinion, there is no honest or principled way to defend the actions of these companies.
"copyright law is all about preserving the past at the expense of the future” This sounds great, but it isn’t true. Copyright law is definitely about preserving something at the expense of something. “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” It is about preserving the authors/inventors exclusive right [including their exclusive right to determine how their work will be used (with the Fair Use exception) and the right to transfer ownership] for a limited time [don’t get started on protesting the current implementation of ‘limited time’; we’re probably in agreement on that issue] AT THE EXPENSE OF someone unilaterally making use of their work without their permission within that limited time window [I believe you wrote about the consequences of that in an earlier post of your series on copyright] regardless of whether that someone profit from it.
This flows into your other statement which is also not true; "Copyright law is the first line of defense against technological disruption, but it doesn’t always work.” This is a misrepresentation of the history of negotiations between the copyright owners and the makers of VCRs, DVD players, DVRs, file-sharing, search engine indexing and streaming. No one stopped Napster from filesharing copyrighted IP voluntarily given to them by the owners of the IPs. They could have pulled a Netflix and established a whole new industry. Years of negotiations among the IP Industry, PC Industry, CE Industry, and public interest groups [including the EFF] were meant to find the balance between honoring copyright and allowing new consumer uses. But CE, PC, and public interest groups chose to release press statements about ‘progress being made’ and wait out the clock until the market penetration of their devices was so great that there was no way to implement technologies, which they fought, that would respect creators’ rights - including UGC creators.
But you understand all this, since you write: "At the core, copyright is a simple economic deal. A trade-off. The government agrees to grant a time-limited monopoly to an artist or author, but only in exchange for the right of the public to make use of the work in the specific ways defined as Fair Use.” But your statement is why Fair Use is just as much in play as Copyright. Fair Use is a defense, not a right. It was premised on it having de minimus impact on the Copyright owners ability to monetize the work. Since a Fair Use claim occurs after the release of the content in an environment where, now, once the IP is out it cannot be recalled, then Fair Use and Copyright need to be reconsidered as two sides of the same coin as these discussions move forward.
Of course all of this may be mute when the courts decide that, if photographs can be copyrighted, and digital cameras already are using AI to create the best shot, then why can’t the direct output of AI be similarly copyrighted. That will allow copyright and fair use to remain as legal constructs as the volume of content explodes to the point where enforcement is impractical - at least until an AI-based solution is proposed.
From The Verge: How to use the Pixel 8’s Best Take to pick your favorite faces in group photos
Best Take is available now on the Google Pixel 8 and Pixel 8 Pro, but we expect it to come to older Pixel phones sometime in the near future. The way it works is simple. You take a bunch of shots of your group as you normally would and then edit your favorite facial expressions into a single frame after the fact. Sounds a little creepy, and honestly it is, but it’s a real lifesaver — especially if you’re taking pictures of kids.
Best Take will only work with images taken in a burst of very similar shots all captured within a 10-second timeframe. Faces need to be clearly visible and, for the best results, not obscured by objects or hands in any of your shots. Oh, and it only works with human subjects right now.
Thanks for your comment. What I wrote is my opinion. I maintain that it is true. I see that you hold a different opinion. Perhaps we disagree, or perhaps you misunderstand me. Or perhaps your professional role obliges you to write comments to defend the companies that pay your salary.
In the hands of major media companies that seek to prevent innovation that changes business models and wish to extract the maximum rent from their monopolies, copyright is about preserving the past at the expense of the future. I don't think you can present any examples of these industries embracing disruptive innovation. It's a documented fact that they fought digital transformation, particularly online distribution, with every tool and weapon at their disposal, and they very often lost.
In no case were any of the copyright monopolies the first to adopt a novel technology. Not once, never.
Moreover, these companies have warped copyright into a weapon. The copyright aggregators (principally motion picture studios, record labels and book publishers) have distorted copyright into grotesque shapes that no longer resemble the original intent, thereby fashioning a weapon that is routinely used to inflict maximum economic harm on any company that seeks to cater to consumer desires by modifying the distribution and delivery of content.
The provision in the US Constitution in Article 1 Section 8 Clause 8 very clearly states the purpose of copyright is to foster innovation: "To promote the progress of Science and the useful Arts". That is a benefit to society at large. Fair use is the legal mechanism for society to use copyrighted works without permission to conduct the experimentation and invention that will promote the progress of science and the useful arts.
No one can make the argument that the media industry is supportive of innovation. As an industry, the media monopolies always prioritize preserving the monetization systems established in the past.
The motion picture, music and book publishing companies have used copyright to fight the future and defend the past for 30 years, probably longer. I refer to 30 years because I have firsthand experience, as a senior executive inside television and motion picture companies, and also as a co-founder of digital media startups. I was present in boardroom discussions where studio heads vowed to use every tool at their disposal, including copyright, to fight online distribution. This worked for a little while, but it's a bit like putting a finger in the dike when the water level is rising. It never works in the long run, and worse, it pits the publishing company against their customers.
The essence of innovation is finding new ways to please and delight customers. This is precisely what the media companies fight against.
It therefore comes as no surprise that the leading motion picture companies are failing spectacularly in the race to build audience for SVOD streaming services. The studios gave Netflix a ten year head start through lassitude and inaction. That's because they prioritized squeezing every drop of revenue from the old business model of before migrating to SVOD.
Since you reference Napster, you should not neglect the fact that RIAA and the record labels sued 30,000 music fans, in most cases inflicting grievous economic harm and in some cases bankrupting families. That's right, the record companies actually sued their customers, often for ridiculous amounts of money relative to any possible damage. That's not all, record label executives lied to Congress, making up grossly exaggerated claims about the number of downloads and the economic damage of file sharing, and thereby enlisted Congress to impose unfunded mandates on US colleges and universities to police their networks for fictitious file sharing activity that never occurred.
At one point in the mid 2000s, the music industry claimed that their annual losses due to file sharing exceeded the entire profit of the motion picture, music and book publishing industries combined. Years later this ruse was exposed by Julien Sanchez, and it was later carefully documented in the book Moral Panics and Copyright Wars by William Patry. These authors demonstrated that the figures cited by RIAA were entirely fictitious.
Subsequent research revealed the detail that the most avid file sharers were likely to increase consumption of CDs.
In my opinion, there is no honest or principled way to defend the actions of these companies.