A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Copyright

Infringement Ex Machina

Nathan R. Hoeschen, Sept. 26, 2023
Copyright Fair Use

It's my dear hope that this post will be one of the few that appeals to muggles. Please, if you see one, thrust your phone at them proudly and demand they read it. Watch their terrified eyes scan over every word. Do not allow them to flee. Repeat. Repeat. Repeat!

We call this SEO in the biz
We call this SEO in the biz AI-Generated, displayed with permission

Judge Bibas gave us this gift of a general interest (comparatively) post with his decision yesterday in Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence Inc., C.A. No. 20-613-SB (D. Del. Sept. 25, 2023) (Mem. Op.).

The case deals with the exceptionally buzzy issue of AI data scrubbing. Thompson Reuters runs the hugely popular Westlaw legal research platform. As part of that service they provide they provide vaguely useful "headnotes" describing the holdings of the cases.

(Eds. Note - Westlaw, if you are reading this, we can be bought. Every 10% you discount our service will result in an improvement of the adjective above. We can go all the way from "vaguely", to "quite", to "masterfully." It's about time this blog started paying the bills).

Ross is attempting to start some sort of AI-driven competitor where you just type in a question and receive a plain language legal answer. No Booleans, no problem.

To accomplish this, they ...

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Chief Judge Connolly Borrows from Patent Law to Permit Consideration of Non-Infringing Alternatives in Copyright Case

Emily DiBenedetto, Feb. 13, 2023
Patent Non-Infringing Alternatives

AI-generated
AI-Generated

Our recent post on copyright claims concerning AI-generated images reminded me of another interesting copyright opinion from last month. In it, Judge Connolly applied a patent law damages principle to a copyright infringement case involving a computer program.

In patent cases, defendants may use evidence of non-infringing alternatives to attempt to reduce the damages calculation if their product is shown to infringe a valid patent. For example, plaintiffs may argue that they are due lost profit damages under the Panduit factors:

  1. Demand for the patented product,
  2. Absence of acceptable non-infringing substitutes,
  3. The plaintiff possesses manufacturing and marketing capability to exploit the demand, and
  4. The amount of profit plaintiff would have made.

Therefore, a defendant can lower a plaintiff’s …

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Getty Images Files Action Against Stability AI for Copyright Infringement—and for Falsely Marking AI-Generated Images with Getty Watermarks

Andrew E. Russell, Feb. 8, 2023
Trademark Litigation Copyright

I put
I put "getty images" into Stability AI, and it spat this image right out, complete with mangled Getty Images watermark. AI Generated

There was a big complaint filed on Friday in the District of Delaware—Getty Images, a the very-well-known provider of stock images, filed suit against Stability AI over its use of Getty Images stock photos to train its image generation algorithm, which it calls Stable Diffusion.

Stable Diffusion is one of the incredible AI-based image generators making news recently (along with others like Dall-E 2 and Midjourney). These AI models can accept a text prompt and generate a corresponding image. For example, prompted with "an elephant in roller skates," Stable Diffusion generated the following:

Elephant in Roller Skates
AI-Generated

So Why Is Getty Coming After Them?

Broadly speaking—and as alleged in Getty Images' complaint—Stability AI created Stable Diffusion by training a machine learning model to generate output by ...

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Chief Judge Stark Suggests Requirement for Copyright Infringement Contentions, Similar to Patent Infringement Contentions

Andrew E. Russell, Feb. 12, 2021
Infringement Contentions Copyright

Books
Alfons Morales, Unsplash

In May 2020, West Publishing and Thomson Reuters filed a copyright action against ROSS Intelligence LLC, alleging that ROSS (through a third party) scraped content from WestLaw to start its own Artificial-Intelligence-based legal research platform. (ROSS has since ceased operations but persists solely to litigate this case.)

Down the line, I imagine the case may raise some interesting questions about AI and copyright. For example, what are the copyright implications of ROSS's use of Westlaw's copyrighted compilation of otherwise public domain materials to train an AI? Isn't that fair use (talk about transformative!)? If not, what are the damages? And so on.

For now, ROSS has moved to dismiss on the ground that West failed to …

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District of Delaware: Buying a Website With Infringing Content and Running It Is Not Copyright Infringement (!?)

Andrew E. Russell, Dec. 18, 2020
MTD Copyright

Photographer
Francois Olwage, Unsplash

The District of Delaware issued a copyright decision today that I found fascinating.

As the Court describes it, back in 2011 a website called Flavorwire posted an article describing (and displaying) nine images from Tom Hussey Photography, LLC, without permission from the photographer.

In 2018, the defendant in the case, BDG, bought the Flavorwire website, including that article. After BDG purchased the site, the photographer discovered the article and sued them for infringement in Delaware, where BDG is incorporated.

In response, BDG moved to dismiss, arguing that it had merely bought, operated, and maintained the website itself (the asset, not the company that created the website), and therefore that it never committed a "volitional …

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