Tag: copyright

Let’s Stop Analogizing Human Creators to Machines

Just as it is folly to anthropomorphize computers and robots, it is also unhelpful to discuss the implications of generative AI in copyright law by analogizing machines to authors.[1] In 2019, I explored the idea that “machine learning” could be analogous to human reading if the human happens to have an eidetic memory. But this was a thought exercise, and in that post, I also imagined machine training that serves a computer science or research purpose—not necessarily generative AIs trained on protected works designed to produce works without authors.

In the present discussion, however, certain parties weighing in on AI and copyright seem to advocate policy that is premised on the language and principles of existing doctrine as applicable to the technological processes of both the input and output sides of the generative AI equation. Of course, policy discussions usually begin with the existing framework, but in this instance, it can be a shaky starting place because generative AI presents some unique challenges—and not just for the practice of copyright law.

We should be wary of analogizing machine functions to human activity for the simple reason that copyright law (indeed all law) has never been anything but anthropocentric. Although it is difficult to avoid speaking in terms of machines “learning” or “creating,” it is essential that we either constantly remind ourselves that these are weak, inaccurate metaphors, or that a new glossary is needed to describe what certain AIs may be doing in the world of creative production.

On the input (training) side of the equation, the moment someone says something like, “Humans learn to make art by looking at art, and generative AIs do the same thing,” the speaker should be directed to the break-out session on sci-fi and excused from any serious conversation about applicable copyright law. Likewise, on the output side, comparisons of AI to other technological developments—from the printing press to Photoshop—should be presumed irrelevant unless the AI at issue can plausibly be described as a tool of the author rather than the primary maker of a work of creative expression.

Copyright Office Guidance Highlights Some Key Difficulties

To emphasize the exceptional nature of this discussion, even experts are somewhat confused by both the doctrinal and administrative aspects in the new guidelines published by U.S. Copyright Office directing authors how to disclaim AI-generated material in a registration application. The confusion is hardly surprising because generative AI has prompted the Office to ask an unprecedented question—namely, How was this work made?

As noted in several posts, copyrightability has always been agnostic with regard to the creative process. Copyright rights attach to works that show a modicum of originality, and the Copyright Office does not generally ask what tools, methods, etc. the author used to make a work.[2] But this historic practice was then confronted by the now widely reported applications submitted by Stephen Thaler and Kris Kashtanova, both claiming copyright in visual works made with generative AI.

In both cases, the Copyright Office rejected registration applications for the visual works based on the longstanding, bright-line doctrine that copyright rights can only attach to works made by human beings. In Thaler’s case, the consideration is straightforward because the claimant affirmed that the image was produced entirely by a machine. Kashtanova, on the other hand, asserts more than di minimis authorship (i.e., using AI as a tool) to produce the visual works elements in a comic book.

Whether in response to Kashtanova—or certainly anticipating applications yet to come—the muddiness of the Office guidelines is an attempt to address the difficult question as to whether copyright attaches to a work that combines authorship and AI generation, and how to draw distinctions between the two. This is not only new territory for the Office as a doctrinal matter but is a potential mess as an administrative one.

The Copyright Office has never been tasked with separating the protectable expression attributable to a human from the unprotectable expression attributable to a machine. Even if it could be said that photography has always provoked this tension (a discussion on its own), the analysis has never been an issue for the Office when registering works, but only for the courts in resolving claims of infringement. In fact, Warhol v. Goldsmith, although before SCOTUS as fair use case, is a prime example of how tricky it can be to separate the factual elements of a photograph from the expressive elements.

But now the Copyright Office is potentially tasked with a copyrightability question that, in practice, would ask both the author and the examiner to engage in a version of the idea/expression dichotomy analysis—first separating the machine generated material from the author’s material and then considering whether the author has a valid claim in the protectable expression.

This is not so easy to accomplish in a work that combines author and machine-made elements in a manner that may be subtly intertwined; it begs new questions about what the AI “contributed” to a given work; and the inquiry is further complicated by the variety of AI tools in the market or in development. Then, because neither the author/claimant nor the Office examiner is likely a copyright attorney (let alone a court), the inquiry is fraught with difficulty as an administrative process—and that’s if the author makes a good-faith effort to disclaim the AI-generated material in the first place.

Many independent authors are confused enough by the Limit of Claim in a registration application or the concept of “published” versus “unpublished.” Asking these same creators to delve into the metaphysics implied by the AI/Author distinction seems like a dubious enterprise, and one that is not likely to foster more faith in the copyright system than the average indie creator has right now.

Copyrightability Could Remain Blind But …

It is understandable that some creators (e.g., filmmakers using certain plug-ins) may be concerned that the Copyright Office has already taken too broad a view—connoting a per se rule that denies copyrightability for any work generated with any AI technology. This concern is a reminder that AI should not be discussed as a monolithic topic because not all AI enhanced products do the same thing. And again, this may imply a need for some new terms rather than the words we use to describe human activities.

In this light, one could follow a different line of reasoning and argue that the agnosticism of copyrightability vis-à-vis process has always implied a presumption of human authorship where other factors—from technological enhancements to dumb luck—invisibly contribute to the protectable expression. Relatedly, a photographer can add a filter or plug-in that changes the expressive qualities of her image, but doing so is considered part of the selection and arrangement aspect of her authorship and does not dilute the copyrightability of the image.

Some extraordinary visual work has already been produced by professional artists using AI to yield results that are too strikingly well-crafted to believe that the author has not exerted considerable influence over the final image. In this regard, then, perhaps the copyrightability question at the registration stage, no matter how sophisticated the “filter” becomes, should remain blind to process. The Copyright Office could continue to register works submitted by valid claimants without asking the novel How question.

But the more that works may be generated with little or no human spark, the more this agnostic, status-quo approach could unravel the foundation of copyright rights altogether. And it would not be the first time that major tech companies have sought to do exactly that. It is no surprise that an AI developer or a producer using AI would seek the financial benefits of copyright protection; but without a defensible presence of human expression in the work, the exclusive rights of copyright cannot vest in a person with the standing to defend those rights. Nowhere in U.S. law do non-humans have rights of any kind, and this foundational principle reminds us that although machine activity can be compared to human activity as an allegorical construct, this is too whimsical for a serious policy discussion.

Again, I highlight this tangle of administrative and doctrinal factors to emphasize the point that generative AI does not merely present new variations on old questions (e.g., photography), but raises novel questions that cannot easily be answered by analogies to the past. If the challenges presented by generative AI are to be resolved sensibly, and in a way that will serve independent creators, policymakers and thought leaders on copyright law should be skeptical of arguments that too earnestly attempt to transpose centuries of doctrine for human activity into principles applied to machine activity.

[1] I do not distinguish “human” authors, because there is no other kind.

[2] I say “generally” only because I cannot account for every conversation among claimants and examiners.

Image by boom15th931

What I’ll Be Watching in 2023

T’is the week for year-in-review and/or looking-ahead articles. In that spirit, I recommend posts by Devlin Hartline, Hugh Stephens, and Aaron Moss. And here’s my list with commentary for your consideration:

AWF v. Goldsmith

Everyone in copyright world will be waiting, like Ralphie expecting his decoder ring, for the decision in this case. The highly anticipated question is whether the Supreme Court will provide clear guidance on the meaning of “transformativeness” in the factor one analysis of the fair use test. By invoking this highly subjective concept, follow-on creators have, at times, pushed lower court decisions toward problematic findings—first by finding “transformativeness” in secondary works that encroach on the derivative works right and/or classic instances where licensing is required; and second, compounding these errors by giving undue weight to factor one in the overall analysis.

AWF has argued that any “new meaning or message,” which may be subjectively interpreted by observing a follow-on work meets the definition of “transformative” and is, therefore, outcome determinative for finding fair use. Although, I have opined that this case poses certain difficulties in my view (i.e., that Warhol may have defenses under other principles), I agree that AWF’s argument presented here should be rejected and believe the Court should state that factor one must turn on whether the follow-on work contains at least some modicum of commentary on the original work. Absent such commentary, factor one should favor the copyright owner plaintiff. We shall see what the Court says in the coming weeks.

Hachette v. Internet Archive

Inasmuch as this is a very big case that could go all the way to the Supreme Court, it is almost impossible to fathom how Internet Archive is not destined to be rebuffed on the merits at every turn. What began as a lawsuit in response to IA’s unlicensed distribution of over one-million titles (using the fog of early COVID shutdowns as a rationale) is now a detailed complaint in which the facts imply more than just founder Brewster Kahle’s anti-copyright crusade.

In 2017, I asked whether the good aspects of IA require all the anti-copyright rhetoric in order to exist, and that was presuming Kahle’s well-known opposition to copyright was purely ideological. But some of the details in the publishers’ complaint imply financial interests that belie any pretense that IA is a principled, though misguided, Robin Hood. Expect to see the organization continue to allege that it is “just a library doing what libraries do,” but if this were true, the publishers’ suit would have been dismissed at the summary judgment stage. It should be clear by now that just because you say something on social media, that doesn’t make it true—least of all in a court of law.

The Copyright Claims Board (CCB)

Launched this past June, 2023 may be the year we really start to test the efficacy of the copyright small-claim alternative. For starters, the big question is how many respondents will opt-out of the tribunal. In order for the small-claim option to be constitutional, a defendant (respondent) must voluntarily agree to the proceeding, which led some to reasonably wonder whether the CCB will work at all if every defendant can simply opt out. But that question partly depends on how many plaintiffs are willing to file federal lawsuits, if the respondents are unwilling to resolve the matter at the CCB.

Further, to really understand how things are going at the CCB, we need a volume of cases and more time to allow the process to unfold. The plaintiff has 90 days once her case is active to show proof of service on the respondent, and the respondent has 60 days to opt out of the proceeding. Thus, with fewer than 300 cases filed between June and December this year, we simply do not have a lot of data yet. That said, Rachel Kim at Copyright Alliance posted a blog summarizing what we do know so far, and it’s worth a read.

Artificial Intelligence

I will not attempt to predict where this story goes in 2023, other than to expect that AI will continue to make headlines in the art world and beyond. As stated many times, I personally think AI generated “art” is a useless waste of computing power, but even if every artist and art consumer in the world agrees with that view, it seems unlikely that market failure of the companies behind generative AIs will predate one of these entities getting sued for copyright infringement. Perhaps not this coming year, but before long, expect to see litigation over the question of whether inputting large volumes of protected creative works into these databases amounts to mass copyright infringement or is exempted under the doctrine of fair use. And in anticipation of this battle, both sides of the argument may be scrutinizing the opinion(s) in AWF v. Goldsmith.

Gonzalez v. Google

Not a copyright case, but on the subject of platform accountability, the Supreme Court will finally have something to say about Section 230 of the Communications Decency Act. The decision likely won’t come until 2024, but we will soon see briefs filed on behalf of Google, and oral arguments will be heard in 2023. I recently posted about this case here and here, but suffice to say, it is hard to imagine that the majority will not generally agree that the statute neither states—nor ever intended to state—that online platforms are entitled to the kind of unconditional, broad shield against civil liability the lower courts have granted them for nearly 20 years.

Although 230 is not copyright law, it shares a kinship with the contemporaneous DMCA. Both laws were predicated on immunizing platforms from liability for material posted by users, and although neither law grants these immunities unconditionally, many online service providers—especially the big ones—have wielded these liability shields beyond the limits of reason or anything Congress intended in the late 1990s. Thus, if the Court reigns in the free-for-all applied to date under Section 230, it is conceivable that the opinion in Gonzalez will inform congressional review of the DMCA, which began in 2020.

That’s what I got for this December 30, 2022. See you in the new year!

Photo by: MediaFuzeBox

Pirate Sites Calling Themselves Libraries are Pirate Sites

I know I’m arriving late to this party. It’s almost Thanksgiving, but it was back on November 3 that two Russian nationals—Anton Napolsky and Valeriia Ermakov—were arrested in Argentina at the request of the United States on charges of criminal copyright infringement, wire fraud, and money laundering. Concurrent with the arrests, authorities seized 241 domains controlled by the book piracy enterprise the pair allegedly operated called Z-Library. According to TorrentFreak, the repository has migrated, at least in some form, to the dark web.

The indictment against Napolsky and Ermakov was unsealed in a Brooklyn, NY court on November 16, and while they await likely extradition to the U.S., author and publisher organizations and other creators’ rights advocates applaud the efforts of the law-enforcement agencies involved with the investigation. My friend Neil Turkewitz notes, “I have been operating in the copyright world for nearly four decades, and I could probably count on one hand the number of times that a piracy story focused on individual creators rather than the much maligned ‘Big Media.’”

True. Not that “Big Media” piracy is justified, but it is substantially harder to fool oneself that book piracy does not directly harm individual authors, who generally make less than a living wage for their writing. In a statement released by the Authors Guild (AG) praising the interdiction of Z-Library, CEO Mary Rasenberger states, “We owe a tremendous debt of gratitude to the U.S. Attorney’s Office for the Eastern District of New York and to the FBI for all of their hard work in not only shutting down the site but also finding and apprehending the perpetrators. We also thank the U.K. Publishers Association and international authorities who assisted in the investigation, as well as the authors who assisted us by filing statements reporting piracy of their books on Z-Library.”

I will decline to wade again into the morass of rationalizations for piracy that predictably erupted on social media when Z-Library was taken offline. That story never changes. Though, perhaps the rhetoric of the pirates themselves changes—at least a little. “There is a growing — and disturbing — trend of pirate operations masquerading as libraries to manipulate and evade the law,” states Lui Simpson, Senior VP, Global Policy for the Association of American Publishers (AAP). “This action [against Z-Library] sends a clear message that industrial scale infringement will not be tolerated, no matter what the perpetrators call themselves.”

Maybe “library” is the new “sharing service”? Simpson is right, of course, that it doesn’t matter. A pirate operation by any name will still smell like a criminal enterprise, and in case you’re curious about when copyright infringement may be deemed “criminal,” the basics are as follows:  The infringement must be willful and for purposes of commercial or private financial gain; or the works infringed must have a retail value of $1,000 in any 180-day period. That’s not a very high bar, though criminal copyright indictments are typically brought against large-scale, blatant operations like Z-Library, whose estimated 8 to 11-million books it made available obviously exceeds $1,000 by orders of magnitude.

Further, traditional online piracy models demonstrate that the infringer does not have to profit directly from trade in the infringed works themselves. One can copy and distribute works without license and either cross the $1000 threshold (easily), or one can commercialize the traffic generated by “giving away” unlicensed works, which creates a nexus between the infringing activity and commercial/financial gain for the infringer. Historically, the pirate sites made most of their revenue from the online advertising system, but when some of those avenues were closed off by the legit ad industry, the site operators pivoted to various all-you-can-eat subscription models and malware as sources of revenue.

Of course, one does not need to operate a Russian pirate network to engage in illegal copying and distribution of books while telling the public the enterprise is a “library.” Internet Archive calls part of its operation an “Open Library,” even though it does not meet the definition of a “library” under the statute and, more importantly, despite the fact that it does not license in-copyright eBooks but instead produces unauthorized eBooks and makes them available without permission. And it does this under a model that is legally unfounded and operationally so murky as to make anyone wonder exactly how the money flows throughout the organization.

From the author’s perspective, the potential harm caused by IA’s “Open Library” is hardly distinguishable from the harm caused by a Z-Library. So, while IA may not be engaged in criminal copyright infringement, its broad-based efforts to undermine copyright are perhaps even worse. An enterprise like Z-Library will cause harm until it is shut down. What Internet Archive and its friends want to do is to strip copyright rights from authors forever. And I would call that criminal in the colloquial sense, if not in the legal one.