Essentially, the judge found that this qualifies as fair use because (a) publishing this with commentary is "transformative" even through "Defendants used the exact, unaltered [photo] in the blog post"; (b) "the blog post is not focused on the [photo]"; and (c) "there is no indication that [the use] impacted or has potential to impact the market or value of the Photo".
As an amateur photographer, this doesn't give me warm fuzzy feelings about posting anything I shoot online. By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.
> By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
That is how copyright has worked since forever. This isn't something new. Copyright is primarily about protecting your ecconomic rights (and attribution rights. In some countries also the integrity of the work). Its not meant as a way for you to fully control what happens to your creative output.
This particular case does seem very borderline though, if you are selling (or potentially selling) your photos, them using it as an illustration without permission is something that would be commercially negative to you and speak against fair use. I wonder to what extent the judge wasn't thrilled to be bothered by something with so few views and as a result was more sympathetic to thd blogger. I'm somewhat doubtful this would go the same way if it wasn't about something so inconsequential.
> Copyright is primarily about protecting your ecconomic rights
One of those economic rights, somewhat inconvenient to your argument, is charging for editorial usage.
The entire function of what remains of the stock photography economy relies on the basis that usage can be billed for. Not sure how else a photographer is ever going to earn money.
If we get to "it's not as if you were making money out of it before" as an argument, which this is approximate to, then the ability to earn as a photographer is destroyed.
I think it is obvious that legal system is adapting to new interests of megacorps. Some time ago they were super pro copyright, but now it's a big big problem for them.
> The blog post is transformative because “the Parker Train Photo is part of a broader work as published in the blog and accompanies fashion guidance, rather than being part of an anthology of the Photographer’s work.”
I know! Totally bizarre —- I think photographers' trade groups are going to have to seek some kind of clarification on that, because it's the end of the profession in the USA otherwise. Bonkers.
It would likely weigh in favour of a finding of fair use, but by itself not be sufficient to make wholesale sharing of entire book without some other special circumstances fair use. (not a lawyer, not legal advice)
“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” - Anatole France
"Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect." - Frank Wilhoit
Even countries with strong moral right regimes usually have quite significant limitations on what they protect. Typically its about ensuring credit and making sure the work is presented in a way that preserves its integrity. Although there is significant variation between countries.
Copyright didn't come out of nothing, it largely evolved out of censorship regimes. Having copyright being about protecting authors economic rights instead of being about censorship or printer's ecconomic interests, was a huge step forward.
Somehow we'll all have to endure a world where you don't post your amateur photos online because you are "troubled" that you might not be able to shake down a personal stylist for incidental use on their blog.
> Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.
This imbalance is the issue. The photographer attempted to use a fraudulent system designed for the wealthy. Hopefully the loss disillusions those among us hoping for scraps. As an amateur photographer, post all you want, and expect nothing in return. If you shoot digital, keep your raw files to harvest lower-fidelty, online-ready formats. If you shoot film, you have both the scans and the negatives.
I think the judge was just reaching for an excuse to kill the lawsuit.
The reason why Fair Use exists is because we have a copyright law, a First Amendment, and common-law courts that are empowered to legislate from the bench[0]. That last bit is important: everything the courts rule can potentially become new law that binds the hands of future courts. This means the court needs to be careful when issuing their ruling.
They can't rule that the statute of limitations has passed, because the files were hosted continuously on a web server. If they did rule this way, then any online infringement can become unprosecutable so long as you keep the website up for 3 years before anyone notices.
They can't rule that it's de minimus. The whole photo was used.
They can't rule innocent infringement[1] because that requires specific facts that are not present in this case.
Normally in this sort of case, the courts would rule that a crime had been committed but not award any damages. Unfortunately, Congress decided that if you register your copyright, you are automatically entitled to an insane damage award. Otherwise, it would never be financially profitable to sue for copyright infringement in all but the most airtight cases, and copyright would be unenforceable.
The next available legal tool to dismiss the case is Fair Use, and that is so fact-intensive that you can get particularly arbitrary with what is and isn't binding precedent. In particular, the market usurpation factor (part C) can be adjusted to emphasize or de-emphasize the harm done to the original work. If a blogger uses a photo for a blog post with 43 views, there is no potential of market harm. If that same blogger gets a million views, then suddenly there IS a market harm and the courts will be more favorable to you.
My personal opinion is that the statutory damage award for registered copyright was a really fucking stupid idea. People who do not have a constructive[2] revenue stream should not be on the hook for damages they can't pay. If you want your photo off the blog post, that's one thing; but you shouldn't be able to demand life-ruining sums of money from legally careless bloggers.
Why? Because that's the basis of a very long-running extortion scheme that has been enabled by our copyright system. It started with the RIAA suing grandmas whose kids downloaded KaZaA, and only got worse from there, involving criminal enterprises started by lawyers who would upload fake porn to The Pirate Bay and then extort people who downloaded it. Really, there needs to be some kind of legal cutoff to immunize the ordinary man on the street from this bullshit while still allowing lawsuits against people actually involved in creative industry. But Congress hasn't bothered doing that. So the courts have to make it up as they go.
[0] You may have heard that certain other countries "don't have Fair Use". This is facially true because they aren't common-law countries, not because they don't have free speech. In civil-law countries the role of Fair Use is instead taken up by legislatively-granted exceptions to copyright.
[1] There is a specific defense to infringement called innocent infringement that the defense can use if they have evidence that they attempted to license the work in question.
[2] "Had or should have had", "known or should have known", etc. In law, a judge can coercively impute all sorts of things "constructively". You can have constructive knowledge, owe a constructive debt, etc.
>You may have heard that certain other countries "don't have Fair Use". This is facially true because they aren't common-law countries
The UK is a common law country and technically doesn't have fair use. We have "fair dealing" exceptions, but these are stricter in than American fair use. This is in part because the laws originated from EU legislation which is normally written to suit Napoleonic law countries...
I don't think Fair Dealing is strict because it derives from EU law - what makes you say that?
UK copyright legislation largely started with the Statute of Anne in 1810 (or thereabouts). I'm not sure we can blame the EU! Much of what we have now derives from ratification of the Berne Convention in the early part of the 20th Century. Although TRIPS also impacts things. The most recent changes to the CDPA 1988 derive from WIPO treaty, IIRC, rather than from EU law itself.
It has certainly felt like there has been undue influence of UK copyright from USA-based interests over the last few decades.
These are civil penalties. I wonder if the prohibition against cruel and unusual punishments applies to the (high) statutory punitive damages. Any legal scholars want to help us out?
As far as I'm aware, the 8th Amendment does not apply here. I mean, just because the punishment is high doesn't mean it's cruel, and it's certainly not unusual, if it applies to everyone. There are certainly some defendants who would not be deterred without the ability of copyright law to generate absurdly high damage awards. And, of course, nothing legally stops a court from assigning punitive damages in a copyright case. In fact, that probably would have worked out better for the Internet age than the law the MAFIAA[1] bought.
That being said, a lot of constitutional provisions don't apply the moment you step foot in a civil court. For example, you actually can be compelled to self-incriminate, 4th Amendment be damned[0], so long as it's not a criminal proceeding. Likewise, there's caselaw stating that the 8th Amendment flat-out does not apply until the US is named as a party on the lawsuit.
On the other hand, SCOTUS has also thrown out punitive damage awards on 14th Amendment due-process clause grounds. In this case[2], we even have a math formula: punitive damages cannot exceed 10x the compensatory damages. Of course, because copyright already has very high statutory damages, we rarely even need to impute punitive damages to get billion dollar awards.
This is all dancing around another question, though: why do the damages have to fit the crime and not the person? Europe assigns scaling damages based on the defendant's ability to pay, and that would neatly solve the problem of well-pocketed copyright scofflaws that Congress attempted to fix with a sledgehammer. The problem is, American law doesn't actually do this. As far as I'm aware, it's not outright unconstitutional to scale fines to income, but given that it's unusual, I could imagine SCOTUS also finding it to be cruel. I mean, you are singling out the rich for being rich, and America was built to protect the interests of the rich.
[0] When I asked Gemma 4 what it thought of an earlier version of this post, it pedantically pointed out that the only legal compulsion civil courts can apply is an adverse inference - i.e. juries and judges in civil court are allowed to assume you're hiding evidence of guilt, whereas in criminal court they're not. I don't think this distinction matters.
> I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???
Yeah, fascinating that a 43-view blog post would go all the way to the federal court like this. Surely the plaintiff often has people give up and pay because they fear the case? Otherwise the economics of chasing down copyright violations of this scale surely don't make sense.
Years ago, like around 2000, I had a personal blog where I mentioned a local TV celebrity talking about something. The post was about 90% the topic, but in referencing the guy himself, I said something like, "this guy's cool." The local celeb had a trademarked moniker "The Car Czar," and I used it in reference to him.
I swear, on a busy week I had about 5 people reading that blog and they were all coworkers. The next day, I had a 6th visitor from Los Angeles and got excited. Who was this mysterious visitor? I found out when I opened my email and saw a C&D from Universal's lawyers saying I was abusing the trademark.
I blogged the next day, "Wtf, Universal?" and a few days later, got an email from the local celeb apologizing for the overzealous legal team. He was indeed totally cool about it.
Economics could make sense if they outsourced the enforcement and the enforcement company gets paid regardless of how prolific the usage is. Don't know if that is what happened in this case, but seems plausible.
> Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.
Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.
Obviously there are cases where it could be infringing, its going to depend how close the output is to the original.
I guess it depends on how you read the post, is it saying use gen-AI to intentionally recreate the photo, something that sounds danger-zone, or are they saying use gen-ai to make some other photo suitable for purpose?
I'm largely out of this space now but my understanding is that some copyright cases around model training are winding through courts but I haven't seen anything definitive come out. The IP lawyers I know are skeptical but we'll see.
EU AI Act is moving towards genAI output being non-copyrightable and that you'd need to actually prove derivative character from a specific copyrighted work(s) to claim infringement.
AFAIK american law is going towards similar setup.
IANAL but, yes, with US/UK (i.e. common law regimes) that's something along my understanding as well. Which I generally agree with even if some/many readers here probably do not. Of course, output being copyrightable and copyright infringement on the inputs are two different things.
An important point in copyright infringement is that it generally applies on distribution to other parties.
So the process of acquiring inputs may or may not be an infringement, but with at least proposed EU rules it does not matter to created model itself.
The exception being that output it produces is judged similar to infringement as human output without any "transformative work" credit to model - so similar to how a human could learn a book or painting to memory and close enough reproduction from memory would be infringement, but not generally using the ideas taken from them
Actually, copyright generally is infringed when a copy is made; hence the name.
That's why, say, 17 USC 106 lists reproduction as the first exclusive right of a copyright holder. And why Berne Article 9 [^1] is about restricting right of reproduction to the author.
Damages are often, in different jurisdictions, related to actual harm. So, distribution is the focus of lawsuits because actual harm in the making of a copy is usually negligible. Few people are suing to stop copying, they're suing to be recompensed for the [potential] commercial benefit derived from the copying.
In as far as you need to make a copy to use it to process and adjust the weights of an ML model, then yes this activity is an infringement to the right to control reproduction.
One of the measures for transformative use is whether the production of the copy commercially harms the original creator/author. I can't see how you can argue that ML models don't do that. Besides which we don't have an equivalent precedent to 'transformative use' in UK so where our courts can go with all this is not clear.
Bartz v Anthropic is some good authority on fair use (https://storage.courtlistener.com/recap/gov.uscourts.cand.43...). Still, it can't be said to be definitive because the plaintiff's arguments on market harm (with respect to fair use, not piracy) were limited and there were, as far as I can remember, no compelling examples provided of model output reproducing large swathes of training text.
> Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.
We don't know that model training is the same thing as inspiration. Training is a mathematical process with theoretically deterministic outputs. It's converging the weights towards being able to exactly reproduce the training data, rather than parts of the training data subjectively influencing a creative output. We will just have to see how this plays in court.
Sometimes human writers sit down to write and accidentally end up verbatim reproducing an NYT paywalled article, too, and no one bats an eye, but AI does it and allll of a sudden we’re in court? Poppycock!
On one hand aggressively punitive copyright claims stifle creativity and innovation in transformative art. On the other hand, generative AI reopens that transformative creativity.
If copyright was shorter blockbuster movies could still recycle comic book characters from the 50s. It just means that any filmmaker could do it rather than just who can afford to pay Marvel/DC
But aren't all of these initial decisions? That is, I don't expect that this is decided until there's a Supreme Court decision. There's still two levels of appeal to go before we get there.
Certainly the first five above all look to be trial court decisions which generally aren't citable law, but can be informative. It will almost certainly get to the Supreme Court at some point, it's too big an issue; until then we'll (probably) have a couple of different appellate court opinions to wait for.
I guess that depends on whether these cases are being appealed or if there is a "circuit split." Which is to say, those are the conditions I'm aware of under which a lower court decision does not constitute a decision decision.
As always, IANAL, but I do listen to their podcasts often (IANALBIDLTTPO)
> Remarkably, the opinion doesn’t mention the statute of limitations at all, even though the original post had been published no less than 14 years earlier (I’m crediting the 2011 blog transfer as a possible republication). This silence reflects that the statute of limitations doesn’t functionally exist in online copyright law any more. Each new view/download nominally constitutes a new infringement, in which case the SOL resets to the most recent visit to the post.
It's a fashion photo by Melvin Sokolsky, taken in 1962. Looks like Soviet Red Army uniforms, but since artist is American/New York and given the year probably all prop clothing.
It should also be noted that if this was any time after 1943 or even after WWII, young men were in short supply in Soviet states. The young women's eagerness is what makes the photo interesting for modern eyes, but period eyes would understand that her eagerness is a nationwide phenomenon and a symptom of losing almost 10 million young men (10 million in uniform, in addition to the 15 million civilians dead which presumably affected men and women equally).
I think the Russians drafted a hell of a lot of young women into the Red Army, as well. They had women on the frontlines, getting shot up, as bad as the guys.
Any old Russian woman (I mostly know Russians, not many from other Soviet states) will tell of the shortage of men. I never heard of the women on the front lines, I'll ask about that. I'm afraid we don't have much time to learn these things any more.
This is not something that I have studied (thus the “I think”), but Stalin did “meat wave” attacks, long before Putin. It worked, but at terrible cost. I think he grabbed everyone he could, but mostly men, I would imagine. Maybe women volunteered, but weren't drafted. I do know they had them in the frontlines. You actually see them, in old footage.
I do know that he had women combat pilots. I think there was a movie, made about that.
The logo looks like the bottom part of the Heer Panzer insignia (without the Nazi eagle, above).
I note that the guy in the foreground is wearing a gray suit, but the hat is green.
Definitely prop stuff.
One of the things that I find amusing about Internet "found historical photos," is that women are usually made up with modern styles. I would not be surprised if they were originally done as fashion shoots, like this one.
another day another reason why copyright should be for commercial use only (yes that means piracy will be legal). you can throw out entire categories of bad faith cases. art stealing companies still have to pay up and its easier to get what you deserve as an artist when the courts not filled with a backlog of useless low value claims.
That would be great. I'm a photographer outside of my day job, and commercial use is really the only thing I give a crap about. Use my photos by all means for whatever personal use or reasons you have, I (and I'm sure other copyright holders as well) really only care when someone is using the work in direct competition with my/their own business.
Personal/non-commercial use should be fair game for everything for everyone.
The language of the article is strongly biased in favor of people stealing artwork: “photographers should stop suing bloggers for copyright infringement!”
The plaintiff gets scolded for not trying to settle. But, by the article’s own account, the defendant ignored emails from the plaintiff!
Photographers should not stop suing if that’s what it takes. People should stop stealing.
> there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog ... Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.
That’s a bit rich, isn’t it? Why did she not simply search the file name, nevermind reverse image searching the photo itself? Since when is ignorance an excuse - especially in a case like this, when claiming ignorance/negligence could easily cover for deliberate intent?
Do you search the name of the photographer every time you download a creative commons image? The vast majority of people simply do not care about copyright.
This seems... troubling to me.
Essentially, the judge found that this qualifies as fair use because (a) publishing this with commentary is "transformative" even through "Defendants used the exact, unaltered [photo] in the blog post"; (b) "the blog post is not focused on the [photo]"; and (c) "there is no indication that [the use] impacted or has potential to impact the market or value of the Photo".
As an amateur photographer, this doesn't give me warm fuzzy feelings about posting anything I shoot online. By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.
> By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
That is how copyright has worked since forever. This isn't something new. Copyright is primarily about protecting your ecconomic rights (and attribution rights. In some countries also the integrity of the work). Its not meant as a way for you to fully control what happens to your creative output.
This particular case does seem very borderline though, if you are selling (or potentially selling) your photos, them using it as an illustration without permission is something that would be commercially negative to you and speak against fair use. I wonder to what extent the judge wasn't thrilled to be bothered by something with so few views and as a result was more sympathetic to thd blogger. I'm somewhat doubtful this would go the same way if it wasn't about something so inconsequential.
> Copyright is primarily about protecting your ecconomic rights
One of those economic rights, somewhat inconvenient to your argument, is charging for editorial usage.
The entire function of what remains of the stock photography economy relies on the basis that usage can be billed for. Not sure how else a photographer is ever going to earn money.
If we get to "it's not as if you were making money out of it before" as an argument, which this is approximate to, then the ability to earn as a photographer is destroyed.
I think it is obvious that legal system is adapting to new interests of megacorps. Some time ago they were super pro copyright, but now it's a big big problem for them.
> The blog post is transformative because “the Parker Train Photo is part of a broader work as published in the blog and accompanies fashion guidance, rather than being part of an anthology of the Photographer’s work.”
It reads like it's from parallel universe
I know! Totally bizarre —- I think photographers' trade groups are going to have to seek some kind of clarification on that, because it's the end of the profession in the USA otherwise. Bonkers.
If a company stops publishing a book or piece of software, is it free to share because there's no longer an economic interest?
It would likely weigh in favour of a finding of fair use, but by itself not be sufficient to make wholesale sharing of entire book without some other special circumstances fair use. (not a lawyer, not legal advice)
Well, it ought to be.
I'm okay with that. What troubles me is that there seem to be two sets of rules at play.
“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” - Anatole France
"Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect." - Frank Wilhoit
>Its not meant as a way for you to fully control what happens to your creative output.
Most countries deal with this under moral rights[0], but these aren't really protected in the USA.
[0]https://en.wikipedia.org/wiki/Moral_rights
Even countries with strong moral right regimes usually have quite significant limitations on what they protect. Typically its about ensuring credit and making sure the work is presented in a way that preserves its integrity. Although there is significant variation between countries.
>Copyright is primarily about protecting your ecconomic rights
no, copyright is about creating an economic right where one didn't exist before.
Copyright didn't come out of nothing, it largely evolved out of censorship regimes. Having copyright being about protecting authors economic rights instead of being about censorship or printer's ecconomic interests, was a huge step forward.
So mostly it is restricting natural property rights.
Somehow we'll all have to endure a world where you don't post your amateur photos online because you are "troubled" that you might not be able to shake down a personal stylist for incidental use on their blog.
Let's not forget this was a photo of a painting.
It is not. https://www.artsy.net/artwork/melvin-sokolsky-parker-train
Ah my mistake, thanks for the correction.
> Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.
This imbalance is the issue. The photographer attempted to use a fraudulent system designed for the wealthy. Hopefully the loss disillusions those among us hoping for scraps. As an amateur photographer, post all you want, and expect nothing in return. If you shoot digital, keep your raw files to harvest lower-fidelty, online-ready formats. If you shoot film, you have both the scans and the negatives.
I think the judge was just reaching for an excuse to kill the lawsuit.
The reason why Fair Use exists is because we have a copyright law, a First Amendment, and common-law courts that are empowered to legislate from the bench[0]. That last bit is important: everything the courts rule can potentially become new law that binds the hands of future courts. This means the court needs to be careful when issuing their ruling.
They can't rule that the statute of limitations has passed, because the files were hosted continuously on a web server. If they did rule this way, then any online infringement can become unprosecutable so long as you keep the website up for 3 years before anyone notices.
They can't rule that it's de minimus. The whole photo was used.
They can't rule innocent infringement[1] because that requires specific facts that are not present in this case.
Normally in this sort of case, the courts would rule that a crime had been committed but not award any damages. Unfortunately, Congress decided that if you register your copyright, you are automatically entitled to an insane damage award. Otherwise, it would never be financially profitable to sue for copyright infringement in all but the most airtight cases, and copyright would be unenforceable.
The next available legal tool to dismiss the case is Fair Use, and that is so fact-intensive that you can get particularly arbitrary with what is and isn't binding precedent. In particular, the market usurpation factor (part C) can be adjusted to emphasize or de-emphasize the harm done to the original work. If a blogger uses a photo for a blog post with 43 views, there is no potential of market harm. If that same blogger gets a million views, then suddenly there IS a market harm and the courts will be more favorable to you.
My personal opinion is that the statutory damage award for registered copyright was a really fucking stupid idea. People who do not have a constructive[2] revenue stream should not be on the hook for damages they can't pay. If you want your photo off the blog post, that's one thing; but you shouldn't be able to demand life-ruining sums of money from legally careless bloggers.
Why? Because that's the basis of a very long-running extortion scheme that has been enabled by our copyright system. It started with the RIAA suing grandmas whose kids downloaded KaZaA, and only got worse from there, involving criminal enterprises started by lawyers who would upload fake porn to The Pirate Bay and then extort people who downloaded it. Really, there needs to be some kind of legal cutoff to immunize the ordinary man on the street from this bullshit while still allowing lawsuits against people actually involved in creative industry. But Congress hasn't bothered doing that. So the courts have to make it up as they go.
[0] You may have heard that certain other countries "don't have Fair Use". This is facially true because they aren't common-law countries, not because they don't have free speech. In civil-law countries the role of Fair Use is instead taken up by legislatively-granted exceptions to copyright.
[1] There is a specific defense to infringement called innocent infringement that the defense can use if they have evidence that they attempted to license the work in question.
[2] "Had or should have had", "known or should have known", etc. In law, a judge can coercively impute all sorts of things "constructively". You can have constructive knowledge, owe a constructive debt, etc.
>You may have heard that certain other countries "don't have Fair Use". This is facially true because they aren't common-law countries
The UK is a common law country and technically doesn't have fair use. We have "fair dealing" exceptions, but these are stricter in than American fair use. This is in part because the laws originated from EU legislation which is normally written to suit Napoleonic law countries...
I don't think Fair Dealing is strict because it derives from EU law - what makes you say that?
UK copyright legislation largely started with the Statute of Anne in 1810 (or thereabouts). I'm not sure we can blame the EU! Much of what we have now derives from ratification of the Berne Convention in the early part of the 20th Century. Although TRIPS also impacts things. The most recent changes to the CDPA 1988 derive from WIPO treaty, IIRC, rather than from EU law itself.
It has certainly felt like there has been undue influence of UK copyright from USA-based interests over the last few decades.
The fair dealing part of the CDPA was modified later to implement the EU Information Society Directive.
https://en.wikipedia.org/wiki/Copyright_and_Related_Rights_R...
“life-ruining sums of money from legally careless bloggers” is deterrence. Don’t do the crime if you can’t .....
So what happened to the whole "no cruel and unusual punishments" thing?
These are civil penalties. I wonder if the prohibition against cruel and unusual punishments applies to the (high) statutory punitive damages. Any legal scholars want to help us out?
As far as I'm aware, the 8th Amendment does not apply here. I mean, just because the punishment is high doesn't mean it's cruel, and it's certainly not unusual, if it applies to everyone. There are certainly some defendants who would not be deterred without the ability of copyright law to generate absurdly high damage awards. And, of course, nothing legally stops a court from assigning punitive damages in a copyright case. In fact, that probably would have worked out better for the Internet age than the law the MAFIAA[1] bought.
That being said, a lot of constitutional provisions don't apply the moment you step foot in a civil court. For example, you actually can be compelled to self-incriminate, 4th Amendment be damned[0], so long as it's not a criminal proceeding. Likewise, there's caselaw stating that the 8th Amendment flat-out does not apply until the US is named as a party on the lawsuit.
On the other hand, SCOTUS has also thrown out punitive damage awards on 14th Amendment due-process clause grounds. In this case[2], we even have a math formula: punitive damages cannot exceed 10x the compensatory damages. Of course, because copyright already has very high statutory damages, we rarely even need to impute punitive damages to get billion dollar awards.
This is all dancing around another question, though: why do the damages have to fit the crime and not the person? Europe assigns scaling damages based on the defendant's ability to pay, and that would neatly solve the problem of well-pocketed copyright scofflaws that Congress attempted to fix with a sledgehammer. The problem is, American law doesn't actually do this. As far as I'm aware, it's not outright unconstitutional to scale fines to income, but given that it's unusual, I could imagine SCOTUS also finding it to be cruel. I mean, you are singling out the rich for being rich, and America was built to protect the interests of the rich.
[0] When I asked Gemma 4 what it thought of an earlier version of this post, it pedantically pointed out that the only legal compulsion civil courts can apply is an adverse inference - i.e. juries and judges in civil court are allowed to assume you're hiding evidence of guilt, whereas in criminal court they're not. I don't think this distinction matters.
[1] RIAA + MPAA = ???
[2] https://supreme.justia.com/cases/federal/us/538/408/
> I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???
Yeah, fascinating that a 43-view blog post would go all the way to the federal court like this. Surely the plaintiff often has people give up and pay because they fear the case? Otherwise the economics of chasing down copyright violations of this scale surely don't make sense.
It was a prior case that 44 views, not this one. But this one was similar in its low view counts.
Years ago, like around 2000, I had a personal blog where I mentioned a local TV celebrity talking about something. The post was about 90% the topic, but in referencing the guy himself, I said something like, "this guy's cool." The local celeb had a trademarked moniker "The Car Czar," and I used it in reference to him.
I swear, on a busy week I had about 5 people reading that blog and they were all coworkers. The next day, I had a 6th visitor from Los Angeles and got excited. Who was this mysterious visitor? I found out when I opened my email and saw a C&D from Universal's lawyers saying I was abusing the trademark.
I blogged the next day, "Wtf, Universal?" and a few days later, got an email from the local celeb apologizing for the overzealous legal team. He was indeed totally cool about it.
Economics could make sense if they outsourced the enforcement and the enforcement company gets paid regardless of how prolific the usage is. Don't know if that is what happened in this case, but seems plausible.
Lots to comment on but this stood out:
> “A lawsuit like this heightens the demand for Generative AI replacements.”
Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.
> Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.
Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.
Obviously there are cases where it could be infringing, its going to depend how close the output is to the original.
I guess it depends on how you read the post, is it saying use gen-AI to intentionally recreate the photo, something that sounds danger-zone, or are they saying use gen-ai to make some other photo suitable for purpose?
I'm largely out of this space now but my understanding is that some copyright cases around model training are winding through courts but I haven't seen anything definitive come out. The IP lawyers I know are skeptical but we'll see.
EU AI Act is moving towards genAI output being non-copyrightable and that you'd need to actually prove derivative character from a specific copyrighted work(s) to claim infringement.
AFAIK american law is going towards similar setup.
IANAL but, yes, with US/UK (i.e. common law regimes) that's something along my understanding as well. Which I generally agree with even if some/many readers here probably do not. Of course, output being copyrightable and copyright infringement on the inputs are two different things.
An important point in copyright infringement is that it generally applies on distribution to other parties.
So the process of acquiring inputs may or may not be an infringement, but with at least proposed EU rules it does not matter to created model itself.
The exception being that output it produces is judged similar to infringement as human output without any "transformative work" credit to model - so similar to how a human could learn a book or painting to memory and close enough reproduction from memory would be infringement, but not generally using the ideas taken from them
Actually, copyright generally is infringed when a copy is made; hence the name.
That's why, say, 17 USC 106 lists reproduction as the first exclusive right of a copyright holder. And why Berne Article 9 [^1] is about restricting right of reproduction to the author.
Damages are often, in different jurisdictions, related to actual harm. So, distribution is the focus of lawsuits because actual harm in the making of a copy is usually negligible. Few people are suing to stop copying, they're suing to be recompensed for the [potential] commercial benefit derived from the copying.
In as far as you need to make a copy to use it to process and adjust the weights of an ML model, then yes this activity is an infringement to the right to control reproduction.
One of the measures for transformative use is whether the production of the copy commercially harms the original creator/author. I can't see how you can argue that ML models don't do that. Besides which we don't have an equivalent precedent to 'transformative use' in UK so where our courts can go with all this is not clear.
https://www.wipo.int/wipolex/en/text/283698
Bartz v Anthropic is some good authority on fair use (https://storage.courtlistener.com/recap/gov.uscourts.cand.43...). Still, it can't be said to be definitive because the plaintiff's arguments on market harm (with respect to fair use, not piracy) were limited and there were, as far as I can remember, no compelling examples provided of model output reproducing large swathes of training text.
> Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.
We don't know that model training is the same thing as inspiration. Training is a mathematical process with theoretically deterministic outputs. It's converging the weights towards being able to exactly reproduce the training data, rather than parts of the training data subjectively influencing a creative output. We will just have to see how this plays in court.
Sometimes human writers sit down to write and accidentally end up verbatim reproducing an NYT paywalled article, too, and no one bats an eye, but AI does it and allll of a sudden we’re in court? Poppycock!
There is plenty of precedent being written here. It does not seem to be the case at all for the average use of this technology.
https://www.congress.gov/crs-product/LSB10922
Ye olde double edged sword
On one hand aggressively punitive copyright claims stifle creativity and innovation in transformative art. On the other hand, generative AI reopens that transformative creativity.
Reminder that the original copyright term was 14 years, with a single 14-year extension.
If this were still the norm, it would feel crazy that blockbuster movie studios are still recycling comic book characters from the 1950s.
If copyright was shorter blockbuster movies could still recycle comic book characters from the 50s. It just means that any filmmaker could do it rather than just who can afford to pay Marvel/DC
Agreed.
Even if the specific image being infringed were not in the corpus, it's possible that a court would return a judgment of copyright infringement.
Consider the case where someone deliberately prompts the AI to build a facsimile image and the AI does a creditable job after some tweaking.
same goes for anything you output :)
Except everyone who has tried to argue that in court has lost.
Has this been argued? I'd love to read some actual court decisions.
Here are some cases (mined from Wikipedia sources):
Tremblay v. OpenAI, Inc., No. 3:23-cv-03223 (N.D. Cal.) (https://dockets.justia.com/docket/california/candce/3:2023cv...)
Andersen v. Stability AI Ltd., No. 3:23-cv-00201 (N.D. Cal.) (https://law.justia.com/cases/federal/district-courts/califor...)
Authors Guild v. OpenAI, Inc., No. 1:23-cv-08292 (S.D.N.Y.) (https://law.justia.com/cases/federal/district-courts/new-yor...)
Getty Images (US), Inc. v. Stability AI, Inc., No. 1:23-cv-00135 (D. Del.) (https://dockets.justia.com/docket/delaware/dedce/1:2023cv001...)
The New York Times Co. v. Microsoft Corp., No. 1:23-cv-11195 (S.D.N.Y.) (https://law.justia.com/cases/federal/district-courts/new-yor...)
Richard Kadrey et al. v. Meta (https://www.documentcloud.org/documents/25984135-richard-kad...)
Bartz v. Anthropic (https://www.documentcloud.org/documents/25982181-authors-v-a...)
---
Further reading:
"Generative AI Systems Tee Up Fair Use Fight" (Feb 2024) https://natlawreview.com/article/generative-ai-systems-tee-f...
"Meta’s AI copyright win comes with a warning about fair use
The federal judge who ruled in Meta’s favor still isn’t convinced its use of copyrighted materials for AI training qualifies as fair use." (Jan 2025) https://www.theverge.com/news/693437/meta-ai-copyright-win-f...
"Anthropic wins a major fair use victory for AI — but it’s still in trouble for stealing books
Judge William Alsup determined that Anthropic training its AI models on purchased copies of books is fair use." (Jun 2025) https://www.theverge.com/news/692015/anthropic-wins-a-major-...
"Copyright Office Weighs in on AI and Fair Use Amid Major Leadership Shakeup" (May 2025) https://ipwatchdog.com/2025/05/12/copyright-office-weighs-ai...
I respect Alsup on tech issues.
But aren't all of these initial decisions? That is, I don't expect that this is decided until there's a Supreme Court decision. There's still two levels of appeal to go before we get there.
Certainly the first five above all look to be trial court decisions which generally aren't citable law, but can be informative. It will almost certainly get to the Supreme Court at some point, it's too big an issue; until then we'll (probably) have a couple of different appellate court opinions to wait for.
I guess that depends on whether these cases are being appealed or if there is a "circuit split." Which is to say, those are the conditions I'm aware of under which a lower court decision does not constitute a decision decision.
As always, IANAL, but I do listen to their podcasts often (IANALBIDLTTPO)
Wow:
> Remarkably, the opinion doesn’t mention the statute of limitations at all, even though the original post had been published no less than 14 years earlier (I’m crediting the 2011 blog transfer as a possible republication). This silence reflects that the statute of limitations doesn’t functionally exist in online copyright law any more. Each new view/download nominally constitutes a new infringement, in which case the SOL resets to the most recent visit to the post.
Image in question: https://static-assets.artlogic.net/w_1600,h_1600,c_limit,f_a...
Hell of a photo, it almost looks like an oil painting!
What uniforms are those?
They sort of look like WWII Nazi uniforms, but they aren't.
Maybe they are made-up?
It's a fashion photo by Melvin Sokolsky, taken in 1962. Looks like Soviet Red Army uniforms, but since artist is American/New York and given the year probably all prop clothing.
Looks more Soviet.
It should also be noted that if this was any time after 1943 or even after WWII, young men were in short supply in Soviet states. The young women's eagerness is what makes the photo interesting for modern eyes, but period eyes would understand that her eagerness is a nationwide phenomenon and a symptom of losing almost 10 million young men (10 million in uniform, in addition to the 15 million civilians dead which presumably affected men and women equally).
I think the Russians drafted a hell of a lot of young women into the Red Army, as well. They had women on the frontlines, getting shot up, as bad as the guys.
I had absolutely no idea!
Any old Russian woman (I mostly know Russians, not many from other Soviet states) will tell of the shortage of men. I never heard of the women on the front lines, I'll ask about that. I'm afraid we don't have much time to learn these things any more.
This is not something that I have studied (thus the “I think”), but Stalin did “meat wave” attacks, long before Putin. It worked, but at terrible cost. I think he grabbed everyone he could, but mostly men, I would imagine. Maybe women volunteered, but weren't drafted. I do know they had them in the frontlines. You actually see them, in old footage.
I do know that he had women combat pilots. I think there was a movie, made about that.
I will definitely look into this, thank you very much.
The grey tunic looks German WW1 (Bavarian Artillery?) but the insignia on the hat looks like the Panzer division.
The logo looks like the bottom part of the Heer Panzer insignia (without the Nazi eagle, above).
I note that the guy in the foreground is wearing a gray suit, but the hat is green.
Definitely prop stuff.
One of the things that I find amusing about Internet "found historical photos," is that women are usually made up with modern styles. I would not be surprised if they were originally done as fashion shoots, like this one.
I guess AI images only for me from now on. Why open yourself up for the hassle?
another day another reason why copyright should be for commercial use only (yes that means piracy will be legal). you can throw out entire categories of bad faith cases. art stealing companies still have to pay up and its easier to get what you deserve as an artist when the courts not filled with a backlog of useless low value claims.
That would be great. I'm a photographer outside of my day job, and commercial use is really the only thing I give a crap about. Use my photos by all means for whatever personal use or reasons you have, I (and I'm sure other copyright holders as well) really only care when someone is using the work in direct competition with my/their own business.
Personal/non-commercial use should be fair game for everything for everyone.
This blog had a commercial purpose, according to the article.
The language of the article is strongly biased in favor of people stealing artwork: “photographers should stop suing bloggers for copyright infringement!”
The plaintiff gets scolded for not trying to settle. But, by the article’s own account, the defendant ignored emails from the plaintiff!
Photographers should not stop suing if that’s what it takes. People should stop stealing.
> there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog ... Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.
That’s a bit rich, isn’t it? Why did she not simply search the file name, nevermind reverse image searching the photo itself? Since when is ignorance an excuse - especially in a case like this, when claiming ignorance/negligence could easily cover for deliberate intent?
> Since when is ignorance an excuse
Since 1998. This is a claim under 17 USC 1202, created by the DMCA, which explicitly says requires intent.
Do you search the name of the photographer every time you download a creative commons image? The vast majority of people simply do not care about copyright.