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.

When Fair Use Threatens the Derivative Works Right

At the same AI and copyright round-table referred to in my last post, Stephen Carlisle of Nova Southeastern University posed this question:  Is the application of “transformative” analysis under the fair use doctrine threatening to extinguish the derivative works right?  This grabbed my attention, partly because it jibed with comments I made in at least two posts about Brammer v. Violent Hues; but for readers who don’t follow copyright law for fun, I’ll try to explain …

Section 106(2) of the U.S. copyright law grants authors the exclusive right to prepare derivative works.  So, the filmmaker who wants to adapt your novel into a movie must obtain your license to prepare a “derivative work” based on said novel (a.k.a the “underlying work”).  If the film creates original visual material, like a creature that might make a cool action figure, the action-figure producer would have to obtain the filmmaker’s license to prepare a derivative work based on that original design. If another party proposes a Netflix series based on minor characters from the novel, that license may remain with you as the original book author; with the filmmaker who made the first adaptation; or be shared depending on certain variables and agreements.

Suffice to say, derivative works are nearly always some use of underlying material in a new context; and  for the purposes of this post, it is fair to summarize the opinion in Brammer as holding that the use of a whole work in a new context from its original purpose was “transformative” under a fair use analysis.  So, because Brammer is an extreme example of a broader effort by certain parties to push the boundaries of fair use, this is what Carlisle was driving at with his comment; and he further noted that the word transform is part of the statutory definition of a derivative work …

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”

So, it is not hard see how a misreading of “transformative” in a fair use analysis can end up validating infringement of the author’s derivative works right.  Moreover, once that “transformative” box is checked, the likelihood of finding fair use increases considerably.  This is reasonable enough when a use is made to produce a truly new expression; but when “transformative” becomes synonymous with “placed in a new context,” the courts are in danger of abrogating the foundation of nearly all licensing protected by the bundle of rights vested in the author.

Almost the only check on such a reading of “transformativeness” is factor four of the fair use test, which assesses the commercial nature of the use; and unfortunately, commerciality may be equally misconstrued.  For instance, if monster maker Jordu Schell sculpts an original creature he intends to sell as a limited-edition piece to collectors, his exclusive right under 106(2) prohibits some not-for-profit entity from 3D printing miniature copies of the monster to give away at a fundraising event. 

But based on the flawed fair use analysis in Brammer, the not-for-profit defendant could argue that their use is “transformative” because 1) it is very different from the context of fine-art collectors; 2) because their use was communicative rather than expressive;  and 3) because their use was non-commercial on the basis that they did not sell the figurines.  Prior to all the confusion sown by these squishy “transformative” arguments, any court should easily be able to call bullshit on such reasoning and recognize that the defendant would have infringed Schell’s exclusive right to prepare derivative works.  End of discussion.

Like fair use, the derivative works right was codified in the 1976 Copyright Act, but its emerging principles can be found in caselaw dating back to at least the mid eighteenth century in both the U.K. and the U.S.  With the development of photography, followed by sound recording, motion pictures, etc., new technologies naturally fostered new ways to use the “heart” of an underlying copyrighted work.  And because law is usually slower than invention—let alone a thorough understanding of a new medium—there are several examples throughout the nineteenth century in which one could argue that copyright law was conveniently interpreted beyond statutory rationale to find infringement.

Scholar Oren Bracha offers such an analysis with respect to the case he considers seminal in the development of the derivative works right.  In Kalem Co. v Harper Brothers (1911) the fifteen-minute, silent film adaptation of Ben Hur was held by Justice Holmes to have infringed the authors’ exclusive right to “dramatize” their works under the statutory amendment of 1891.

There are actually a number of moving parts in to this particular case, but simply put, Bracha contends that Holmes stretched the meaning of “dramatize” in order to encompass the very new medium of motion pictures and then shoehorned a rationale to find contributory infringement. “The Kalem decision was thus a crucial transitory moment,” he writes.  The decision’s rationale was already based on the new model of copyright, but its legal reasoning still relied on manipulating the doctrines that were rooted in the the traditional print-bound model.”

One can interpret Holmes’s opinion in Kalem as legislating from the bench (although he did have ample precedent that copyright protects intangible expression*) or as a prescient understanding of copyright’s transition into the technological 20th century.  Or perhaps a bit of both.  That case was decided one year before the category “motion pictures” was added to U.S. copyright law and ninety years before the first Harry Potter movie was released.  And I doubt that anyone today would support Warner Bros. building a mega-franchise based on those books without honoring J. K. Rowling’s exclusive right to “prepare derivative works.”  

Presently, we are in the midst of another transitory period with new technologies allegedly posing new challenges to copyright law.  At least that’s the headline. But I’m not convinced that copyright is nearly so challenged in the 21st century as it was during the 19th.  No matter how one analyzes Holmes’s opinion in Kalem, there is no denying that he was contending with something truly revolutionary that challenged the court to consider the nature of copyright.  By contrast, a lot of tech companies today will liberally appeal to the virtue of innovation as a rationale to circumvent, ignore, or amend copyright law—including the effort to make “transformative” mean whatever serves the interest of the moment. But how many of the major “innovators” have actually invented something that poses new questions about copyrighted works and the exclusive rights of authors?

Returning to Brammer, for example, publishing a photograph on a website hardly requires a major theoretical inquiry in order to compare that conduct to publishing a photograph in a magazine or a brochure.  It’s just a different form of “reproduction” and “display” and should be about ten minutes work for any court.  Likewise, most of the major platforms are just variations on the capacity to display or broadcast creative works through computer networks—a fairly new experience for us as consumers, but not necessarily as groundbreaking from a copyright perspective as the platform owners would have us believe.

The relative novelty of streaming or downloading music and video doesn’t come anywhere close to posting the legal challenges triggered by the seminal technologies invented between the 1830s and the 1890s.  And in case after case, those courts generally tracked the “essence” of the author’s work as it was used in contexts far more exotic than almost any 21st century use trying to bamboozle us with notions of “transformativeness.”

It was out of that extraordinary period of invention—concurrent with the evolution of fair use doctrine—that the derivative works right was given shape and eventually added to the bundle of rights vested in the author.  To date, it seems to me that no technology or model has yet been invented that would justify the fair use doctrine encroaching upon the derivative works right.  Yet if decisions like Brammer are allowed to stand and various tech businesses had their way, that’s exactly what would happen.

*Turner v. Robinson (UK); Daly v. Palmer; Burrow-Giles v. Sarony; et al

Is “Machine Learning” Copying or Reading?

machine reading

I recently attended a round-table discussion on the subject of artificial intelligence and copyright.  The first of several engaging topics I thought warranted a post was the question of “machine learning,” which I put in quotes here with respect to one scholar who admonished against anthropomorphizing AI by using words for human activities to describe the actions of computers.  I think that view is fundamentally correct, though there is also grounds for analogy, as will be made clear by the following premise:

When you read a book, even if we might say, by way of analogy, that you are “copying” the content of that book onto your brain, this clearly does not infringe §106(1) of the copyright law proscribing unauthorized copying.  Since the author naturally hopes that you will read her book, such a prohibition would be absurd, even if you had an eidetic memory and could, if prompted, recite the entire work verbatim.  But if you used that gift to type from memory the entire book and made that document available, you would then violate more than one statute under the copyright law.

So, the question raised in regard to “machine learning” is whether the computer scientist who wishes to feed a corpus of books—say the anthology of American literature—into an AI should be required to obtain licenses for the works still under copyright.  Thus, the first analysis is whether the act of “copying” can be said to occur in this circumstance any more than it would be for the human reader who consumes the same body of literature.

It strikes me that if what the AI does in this case is ingest the corpus of books and almost instantly deconstructs those works by synthesizing them through a neural network, then the computer scientist has a pretty solid argument that no copying has taken place.   If the machine does not retain intact copies of works—or even large sections of works—-with the purpose of making those intact copies available to the human market, then this “machine reading” process is arguably analogous to the human whose reading does not infringe §106(1) of the copyright law.

That said, intent of the computer scientist may be a significant factor.  For instance, if the training of the AI will have a commercial purpose, this may suggest a requirement to license the works under copyright.  But intent can be very tricky on the leading edge of science because it is neither realistic, nor even desirable, to insist that every researcher know exactly where his experiments will lead.  This would nullify the process of discovery whence many great achievements have been made; hence, discovery is justification itself, and I suspect the tech companies would appeal to this rationale in regard to “machine learning.”

If the computer scientist’s goal is to see whether he can get his AI to “learn” about the American experience through literature, but he does not have a particular product or service in mind at the outset, it seems that copyright owners would be on fairly shaky ground to enjoin his use of the books.  As long as nothing that comes out the other end looks like any of the products that went in, it strikes me that this experiment exists beyond the statutory framework of copyright law.

Of course this portrait of the individual scientist beavering away in his modest lab to see what he may discover is not what is taking place in reality. We know perfectly well that major AI experimentation occurs in the R&D labs of companies like Google and Facebook, who are well shielded by trade-secret law from divulging what they are working on or for what purpose.  Like any other corporations, they are free to announce a new product or service without telling the public how they arrived at the latest result.

So, even if the use of copyrighted works as source material resulting in a commercial end might recommend some type of licensing regime, it may be very difficult to identify the threshold when the blind process of scientific discovery becomes a clear intent to exploit a commercial opportunity.  And, as mentioned, these companies would be under no obligation to divulge that eureka moment to anyone.  

On the other hand, the moment Google or Facebook did announce that new product, rightsholders could justifiably complain that a massive, highly-profitable corporation has used potentially billions of dollars worth of material without paying for any of it.  As one scholar at the round-table noted, tech companies may not use raw silicon for free, so why should they get to exploit millions of creative works for free, no matter what they’re turning that data into?

It’s a good question.  One that would seem to suggest a new subsection of the copyright law, and this would certainly be consistent with the fact that new forms of exploitation of works may demand equally new forms of compensation.  If nothing else, that type of statutory response could spare us all the tedious and false harangue that insists “copyright owners just want to stand in the way of innovation.”

That argument prevailed for far too long, and now the so-called innovators have a lot of splainin’ to do about their culture of blind disruption for the sake of disruption. Especially in light of the fact that AI may have some very profound effects on society as we know it, maybe this time around the copyright owners should be treated like experienced voices in the conversation rather than canaries wasting their breath in the proverbial coal mine.

Milton Never Said a Damn Thing About the Internet

I’ve been traveling and am, therefore, late to mention that the hotly-contested EU Copyright Directive passed last week. Not surprisingly, the usual critics have spared little hyperbole referring to the new legislation as the “end of the open internet” and a “disastrous decision.” Meanwhile, many of the copyright proponents I know view the directive as having had the teeth negotiated out of it while Chris Castle has opined that, for instance, YouTube will actually comply with the Directive shortly before Hell freezes over … 

One goal of the Directive was to have very large platforms, like YouTube, pay license fees to the copyright owners whose works contribute substantially to their revenue models. Thus, Article 13 (now 17) requires these large sites to develop technical measures to prevent and mitigate infringing uses, and this has been interpreted by many to mean that these platforms will implement filtering algorithms to identify protected works at the moment when a user initially uploads a file.*

For copyright owners, the proposal represents an important reversal of the current paradigm in which their works are chronically used without license, and they try to respond to every infringing use, one-by-one (a.k.a. the whack-a-mole problem), which is virtually impossible for a small, independent rightsholder. For the critics of the Directive, the assumed filtering at the point of user upload has been characterized as censorship because this would inevitably stifle all manner of legal uses before they are even published. One way or another, it should to be obvious why the status quo has been beneficial to YouTube and why the company used its platform to promote the censorship narrative against the legislation. 

In that regard I tend to agree with friends and colleagues who view passage of the Copyright Directive as at least a symbolic win for the democratic process itself. Certainly it is a refreshing change that the European Parliament was not bullied by Silicon Valley and was able to cut through a lot of the standard fear-mongering noise that was so effective against the SOPA/PIPA bills in the United States in 2012. Perhaps screaming #SaveYourInternet! is an exaggeration that has finally reached its limit.

But because I think the manner in which policy is debated is actually rather important, that brings us to the title of this post and the fact that it is apparently necessary to clarify that the 17th-century, English poet John Milton never said or wrote a bloody word about the internet. That may seem obvious to most, but not so much to history professor and novelist Ada Palmer, writing for the venerable Boing Boing.  In her post of March 24, she alleged that Article 13 of the EU Directive is comparable to European censorship of books in its ancient past.  She begins …

The EU Copyright Directive rekindles the oldest fight in the history of free speech debates, first waged by John Milton in 1644.  Then, like now, policy-makers were considering a radical change in censorship law, a switch from censoring material after it was published to requiring a censor’s permission to publish in the first place.

Nobody with the words professor and history next to her name should be allowed to write anything that misleading without rebuttal. And not wanting to bury the lede here, the most rudimentary response to articles like Palmer’s is that we cannot responsibly compare any proposal to require licensing of works by a for-profit corporation to a state’s authority to allow or disallow publication of works in the first place. There is simply no ideological or practical relationship between those two paradigms, let alone any relationship that spans from Milton’s role in the early phases of the English Civil War of the 1640s to the need to address various effects of internet companies in the present.

I’ll spare readers an attempt at historic summary, but England’s narrative vis-a-vis publishing, censorship, religion, and politics was—especially from the time Henry VIII broke with Rome—a schematic drawn by a psychopath. To give you some idea of what I mean, the fundamental language of the printing laws, beginning no later than 1557, hardly changed from iteration to iteration while the religious, social, and political postures of the state vacillated wildly for nearly 200 years.  

Hence, the 1643 proposal to end “great late abuses and frequent disorders in printing many false, forged, scandalous, seditious, libelous, and unlicensed papers, pamphlets, and books to the great defamation of religion and government” was not new language, but it had very different implications in Cromwell’s Parliament than it did under each of the precedent reigns of Mary I, Elizabeth I, James I, and Charles I before he was beheaded in 1649. 

So, Palmer is simply incorrect to call Parliament’s Printing Act proposal of 1643 a “radical change in censorship law.” To the contrary, it was a continuation of the same censorship laws being adopted under new management; and this was central to Milton’s complaint when he published his treatise Aeropagitica in 1644.  As both a literal and literary soldier for the cause of the Commonwealth, Milton saw the renewal of state publishing licenses as a needless reiteration of the royal prerogative to censor books (i.e. anathema to the anti-royalist cause itself). Notably, it was John Locke, father of the labor theory grounding one pillar of intellectual property, who inveighed against yet another renewal of almost the same law in 1694.

While it is true that Milton’s Aeropagitica is widely recognized as one of the most beautifully articulated defenses of free speech in our political heritage, it must remain in a context that is a very great distance from our modern conception of speech. For instance, Milton advocated allowing heterodox books et al to be published so that virtuous men would recognize the difference between good and evil; and while this is solid Puritan reasoning, it is not the underpinning of speech rights today—to say nothing of how far removed, say, “Paradise Lost” is from the average YouTube video.

Palmer makes a mistake common among academic critics when she draws straight lines between ancient Europe (usually England) and modern copyright. In fact, these lines are not only serpentine but highly fragmented. It would take a very long post to unpack all the moving parts, but just as Milton’s Aeropagitica should be seen as one ingredient in a philosophical soup that is many years away from tasting like the Bill of Rights, that’s more or less how we must view the practices of the English book publishers (the Stationers Company) and their relationship to the volatile English state between roughly 1557 and 1774.  

Simply put, only the state had the authority to grant (or not) permission to publish a work, while the Stationers’ monopoly on publishing was akin to the monopoly every other London guild—there were more than a hundred—enjoyed over its trade.  While there was intermittent correspondence between the publishing monopoly and state censorship, that narrative is a crazy quilt of inconsistency and has almost nothing to do with modern copyright law, which vests ownership in the expressions of individuals.

Yet, by invoking Milton, and even sprinkling the word Inquisition throughout her article, Palmer would have readers believe there is a through-line in the narrative—a kinship between copyright enforcement among private entities in the 21st century and government censorship of publishing in the 17th. There is not. And frankly, I am not sure which is a greater threat to rational public discourse—the hashtag that distills a complex issue into a lame bullet point, or the erudite article that sounds reasonable but is fatally inaccurate.  For sure, the democratization of the internet has given both more room to roam than either deserves, which does beg the question as to what this fight is really about.

* This is not mandated by the new statute and may in fact be how the platforms respond, but that’s a topic for a different post.