Tag: innovation

“Innovation” Doesn’t Mean Anything

"innovation"

Two headlines in the first week of this month said a lot about the United States as an “innovative” nation right now. One story announced that the first driverless semi-trucks are on the highway covering normal long-haul routes, and the second reported that the final shipments of pre-tariff goods from China were arriving at U.S. ports. Leave it to contemporary America to dispatch a new fleet of robot trucks just in time for the cargo containers to be empty. On the other hand, I guess it works out in principle because the unemployed truck driver won’t have money to buy the goods that won’t be on the shelves.

According to the tech-utopians about a decade ago, the displaced truck driver shouldn’t worry because he now lives in a world of abundance and can, at last, spend his days painting or writing poetry or making music with all the leisure time he now enjoys. Isn’t that what happened? Didn’t technology “innovate” that Keynesian promise of a social and economic golden age? Doesn’t look like it. In fact, we’ve even got machines to write poetry and make music, so the ex truck driver will just have to pound sand.

Big Tech historically calls everything it does “innovation,” allowing scant room for critique of a product’s pros and cons while labeling any policy that might protect some injured parties “anti-innovation.” Even where harmful results are identified and become the subjects of congressional hearings, the product makers effectively sell these “unintended” hazarrds as a price that must be paid for “more innovation.” And, by the way, that promised “age of abundance” will start any day now, if we are just patient and keep feeding the beast more data.

The Coalition for a Safer Web can describe in grim detail how social media and other tech platforms have “innovated” teen suicide, scams, and drug trafficking. Or the recent proliferation of AI “companion” apps (virtual girlfriends and boyfriends) has “innovated” new concerns among child psychologists—and these apps may also “innovate” new vectors for malware attacks. And, of course, increasingly realistic AI deepfakes may further “innovate” our fleeting grasp on reality, which has been essential to “innovating” American democracy to the edge of extinction.

Sporting the word “innovation” as a cloak for all manner of sins, the tech industry contends that the materials used to build the next generation of AI products (i.e., the works of artists and creators) are so essential for even more “innovation” that copyright rights must be disregarded. Elon Musk and Jack Dorsey even opined that the U.S. should simply abandon intellectual property rights altogether, and the industry rhetoric appealing to the current administration claims that copyrights must not hamper the national interest in “winning” the competition to build the “best” AI.

The folly of declaring an intent to “win the AI war” without defining what success looks like is consistent with U.S. tech policy for decades and with policy affecting all sectors, public and private, today. To call Trump 2.0 incoherent is too kind, as that term can imply well-meaning error when, in fact, the administration is engaged in a purposeful, multi-pronged attack on science and the arts in direct conflict with the intent of the progress clause of the Constitution.

Article I, Section 8, Clause 8, giving Congress the power to “promote science and the useful arts” by establishing copyright and patent laws was an expression of the Framers hope that the fledgling, agrarian nation might one day create great cultural works and inventions. But of course, IP law alone can’t do that. Quite simply, without the I, you ain’t got no P—and I is under assault in the United States. Brain-drain and chaos are now the hallmarks of every federal department from healthcare to defense, and in the private sector, Trump’s goons attack universities, the motion picture industry, publishers, authors, journalists, and scientists—literally anyone smarter than they are, which includes a lot of damn people.

“Innovation,” Copyright, and AI Training

Big Tech argues that all AI training with protected works should be exempted from infringement claims by the doctrine of fair use. Ordinarily, broad claims about fair use remain in the blogosphere while specific legal questions are weighed in court. But in regard to AI training, I worry that the general perception of the technology as “innovative” may result in overbroad application of “transformativeness” under factor one, which considers the purpose of a use.

For instance, Judge Chhabria, in last week’s hearing in Kadrey et al. v. Meta, stated that Meta’s Llama is “highly transformative,” which may signal an overbroad reading that synonymizes “transformative” with “innovative” while also eliding a thorough weighing of the extensive purposes for which the use is made. Or in a nutshell, how can a court fully consider the purpose of a use when the technology at issue is dynamic and open-ended?

As noted in an earlier post, landmark fair use cases have involved technologies that were complete models as facts presented to the courts—e.g., the VCR and the Google Books search tool. The court did not need to wonder, for instance, whether the purpose of Google Books—i.e., to provide information about books—might also be used to build an AI “psychologist” that may harm patients seeking mental healthcare. In fact, as The Guardian reports on this very issue, Mark Zuckerberg advocates “innovating” psychotherapy with AI “providers,” thus adding doctor next to historian, journalist, and constitutional scholar to the list of qualifications he lacks as he proceeds to break all things.

In this context, and with the recognition that Meta’s commercial interests entail application of its AI tools across many, if not all, initiatives in the company, what exactly is the purpose of Llama as weighed in a factor one fair use consideration? I’m not convinced the court can really know.

Beyond the Four Factors

When Congress codified fair use in the 1976 Act, it sought to convey over a century of judge-made law as statutory guidance, but beyond the four-factor test, “courts may take other considerations into account,” writes Professor Jane Ginsburg in a paper about AI and fair use. Indeed, she cites to the Google Books case, in which the court states, “the use provides a significant benefit to the public.” But with a product like Llama, where a court has reason to predict substantial crossover between socially beneficial and socially toxic purposes, how can a judge reasonably decide whether the purpose is “highly transformative” when the facts themselves are so ephemeral?

It is one matter for a court to consider the “transformativeness” of an AI built for a clearly defined purpose as presented, but it seems another matter if the technology has myriad purposes, including ones that will manifest after a case has been resolved. Whether Midjourney’s purpose to enable the production of visual works makes fair use of visual works in its training may be a sufficiently narrow consideration, but by contrast, an LLM developed by Meta is arguably open-ended development for purposes as yet undefined.

After all, Meta began with a college student ranking sorority girls and is now a trillion-dollar company that has altered the course of human history—and many of its “innovations” have had destructive results. In this light, the courts should decline to find “transformativeness” in the same overbroad spirit in which the tech industry wields the term “innovation.” Because without a clear definition and coherent law and policy, “innovation” is how we end up with a truck with no driver carrying a load of nothing to nobody.

Photo by Snoopydog1955

Google v. Oracle Part V: The Where Would You Be Without Us Defense

Not everyone agrees that copyright law has a natural-rights soul, but neither critics nor proponents dispute that copyright’s heart is to provide incentive for authors. Specifically in Google v. Oracle, the headlines most likely to seep into general awareness will boast one of two competing predictions regarding this incentive principle.  Defenders of Google insist that if Oracle wins this case, the legal precedent will stifle an entire software industry that needs to copy code (as they did), while defenders of Oracle assert that a Google win could undermine the financial incentive to create. 

Although predicting holistic market dynamics is admittedly a bit of a crapshoot, it seems far more reasonable to conclude that the core elements of Google’s arguments would cause significant cardiovascular harm to the incentive heart of copyright.  And it would do so by insidiously promoting the company’s own monopolistic conduct as a social benefit.  For example, I would draw readers’ attention to the PR message encoded in the following quote from Google’s brief to SCOTUS, filed on January 6th …

“Early mobile phones were much less useful, in part because many manufacturers used their own proprietary ‘operating systems’—i.e., software that controls the phone—for which few useful applications were created. Google responded by creating Android, an ‘open source’ operating system that worked with almost any smartphone.”

Notice how that sounds like mobile was going nowhere until Google magnanimously “responded” to market demand?  It’s meant to sound that way.  Because it reinforces the general proposition that Google’s innovation is synonymous with innovation itself; and as a legal tactic, it is there to tee up Google’s fair use defense (addressed in my last post) that Android developers made a “transformative” use when they copied Oracle’s Java SE code without license. 

Google appropriated the Java computer code for exactly the same purpose for which other mobile developers had licensed the software from Oracle. So not only does this fact undermine Google’s fair use argument, it also suggests that mobile was in fact not going nowhere in 2005.  On the contrary, mobile was racing down the highway faster than Google could fully assemble its own vehicle, leading Google to conclude that it needed Java to catch up. I think we all remember that it was Apple that revolutionized the idea of what a cellphone could be, with inspiration from even earlier innovators like Blackberry, Palm, and Nokia.

Which Outcome Poses a Threat to Incentive?

Copyright skeptics have intermittently taken pot shots at the incentive premise with the refrain that “artists will still create without copyright.”  And while I will not reiterate the many flaws in that particular bullet point, let us jump to the undeniable conclusion that major software developers will do no such thing.  Neither Sun nor Oracle nor Google nor Apple nor any other company is going to invest thousands of costly hours into developing software without projecting a return on the investment, which must be predicated, at least in part, on the IP in the software itself.

That premise alone, without even addressing the more nuanced legal arguments in this case, suggests that a Google win would more likely have a deleterious effect on future software development. If the next start-up developer compares both the conduct and the legal arguments of the two giants in this fight, Google’s claim that it “needed” to appropriate code (which it did not need to do) in order to “revolutionize” mobile (which it did not actually achieve) should scare the hell out of that start-up developer. Because what happens when the start-up creates a breakthrough product for some other sector Google decides it wants to “revolutionize?”

One of the first questions an angel investor asks is how a new venture can protect itself against an industry giant “squashing them like a bug,” for the Shark Tank fans out there.  And one of the best answers the founders can offer is that they own strong intellectual property.  But if Google’s exceedingly broad rationale for outright copying is allowed to stand in this case, the precedent it will set is one in which the new venture no longer has that protection when it enters an arena full of 300lb gorillas. 

If IP becomes meaningless as an incentive, industry consolidation will be exacerbated until we are left with one or two corporate leviathans with tentacles in every aspect of our lives. One need only glance at the winner-take-all paradigm of the digital age, which already forecloses entry into various markets, in order to envision how a finding for Google in this case could have a further chilling effect on competitive innovation. 

By contrast, Oracle’s core argument that its code should have been licensed by Google is not only non-threatening to the start-up developer, it is almost certainly a model the start-up intends to use in the market. Copyright critics have a habit of pretending that licensing is tantamount to making works unavailable and/or a prelude to innovation-killing lawsuits.  But there are few products that belie this rhetoric quite so demonstrably as Java.

Java is a developer’s platform—many have called it one of the most revolutionary ever created—and its licensing regimes were designed to foster innovation, sharing, and building upon prior works. Innovation is literally mandated by the various tiers of Java licenses—from free to commercial—but which Google refused because it rejected the condition that Android would have to be interoperable with the rest of Java.  Google wanted a proprietary platform, but one that relied on a core element it did not develop. 

The fact that the unlicensed use of Oracle’s code was intrinsic to Android attaining market dominance will not, I suspect, be overlooked by future developers and their prospective investors.  So, it would seem counter-intuitive to accept the narrative that Google’s defenses in this case serve innovation writ large rather than its own exclusive and narrow interests.  And if that doesn’t suffice, one could always ask whether Sun/Oracle licensing Java between 1995 and 2005 stifled innovation in the software industry.  Just sayin’ I don’t think it did.

A Worn Out Refrain

Many creators and copyright owners in other media are all too familiar with Google’s attempts to disguise its business interests as a broad social benefit like “we rescued mobile.”  For instance, the emphasis on “open source” in that line from their brief is there to color the picture of Google’s liberality toward the market, as if giving the Android platform away were not essential to its market-dominating intentions—and as if the ease of use for app developers were not a direct result of the code it copied from Oracle. 

So, for all the noise Google makes about innovation and competition, Android is now the dominant mobile platform for three important reasons:  1) the company has nearly limitless capital to launch products quickly; 2) it used Oracle’s code in the platform to attract app developers and get to market fast; and 3) its massive advertising and data-mining revenue streams are best served by giving away its general market products for free. Google is very good at using free platforms to monetize other people’s work without license; but of course, its products are not really free, are they?

Android, like every other “free” tool in the Google portfolio comes at the cost of a semi-voluntary exchange for our personal information—up to and including tracking our movements, invading our privacy, and abusing our data, either by selling it to unscrupulous operators or by leveraging it to engage in anti-competitive practices.  So when Google asks the rhetorical question in regard to this litigation, Where would we be without Android?  The sensible response is: Wouldn’t it be nice to find out?  But of course Google’s largesse does not want competitors in mobile any more than it does in, say, social video platforms. 

Historically, Google’s rhetoric, promoting the message that “copyright stifles innovation,” functions as a smokescreen, which masks its own anti-competitive business practices—namely, that everyone else’s copyrights get in the way of their innovation.  The same scenario plays out again in Oracle. Google copied someone else’s IP for its own commercial benefit and now uses litigation to weaken the law it decided to circumvent—and it did so for profit, not principle. Google’s legal arguments deserve to be addressed on the merits, but we should remember who we’re talking about when considering the big-picture narrative in the press and blogosphere.

PR is of course not unique to Google.  All corporations weave such narratives. But just because GE brought “good things to life,” this does not mean we blindly accepted PCBs in the Hudson River, or assumed that some other company might not bring better things to life.  Similarly, Google cannot be allowed to rest its case on the false premise that nobody was innovating (or would have innovated) in the mobile market until they came along. That simply was not, is not, true. 

Thus, Google’s claim that it must prevail in Oracle in order to preserve a culture of appropriation that allegedly promotes development, fades in the light of empirical evidence.  Without even weighing the copyright law details, Google’s overall message does not hold up against the now well-established narrative that the company behaves like a classic monopolist in every line of business it enters. 

Clinton equivocates so Masnick obfuscates.

Last week, Hillary Clinton released her Initiative on Technology and Innovation, brief, which reads a bit like a missive from the Internet Association and does very little to clarify her own views—possibly because she doesn’t have any—on the role of copyright in the digital age.  My general criticism of the whole brief is that it seems to view “technology” as an end rather than a means—still talking about access as its own reward, even in a time when Clinton’s opponent is as much proof as we should ever need that access alone does not necessarily foster a new enlightenment.

That Clinton’s statements are vague is the one criticism I share with Mike Masnick at Techdirt. Of course, what I hear in her rhetoric is that she’s been tippling at the Silicon Valley Kool-Aid, while Masnick seems to feel she hasn’t had quite enough. And that’s fine. We have divergent agendas.  But the substance of Masnick’s rebuttal on the subject of incentives does not accurately reflect the debate from either side, in my opinion.

Clinton’s statement contains the following:

The federal government should modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system.  It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding.

And Masnick rebuts …

What are the “innovation incentives in the system” right now? Well, on that, people totally disagree. Some people think that fair use, user rights and DMCA safe harbors are the innovation incentives in the system. Others, of course, argue it’s long copyright terms and insane statutory damages. These two groups disagree and the Clinton platform offers no further enlightenment. 

I’m sure his statement resonates inside Techdirt’s echo chamber, but portraying “long copyright terms and insane statutory damages” as core incentives for rights holders specifically oversimplifies both of these topics and it generally misrepresents creators and their motivations.

“…long copyright terms…”

Yes, the copyright term is part of the incentive rationale, but the actual duration of terms is influenced by various interrelated and dynamic factors—both philosophical and utilitarian—that consider market conditions and, yes, a discussion as to what seems appropriate to grant an author, which has generally extended to two generations of his/her heirs.  Presumably, there is an ideal threshold for terms—too short and incentive may be diminished for various types of works; too long and copyright’s purpose to promote progress may be defeated—but the sweet spot can only be theorized based on a holistic view of the contemporary, global market for the range of protectable works. To boil all that down to say that rights holders think long terms provide an incentive to create and distribute is no more nuanced than Hillary Clinton’s equivocal statement on the matter.

“…insane statutory damages…”

While it’s true that there is no reason to rely on a law that cannot be enforced, Masnick’s reference to “insane statutory damages” is stretching this tautology a bit thin in order suggest that rights holders view the prospect of litigation awards as an incentive to create in the first place. Statutory damages are set, in part, because the burden for a plaintiff to prove “actual damages” is quite steep. And because federal litigation is very expensive, hiring an attorney to represent a claim in which statutory damages may not be awarded can be extremely difficult for many rights holders.

Masnick also glosses over several details with regard to awards, including the fact that a lot of cases settle without awards anywhere near the statutory limits; that many copyright advocates currently support the creation of a copyright small claims court; and that statutory damages only apply in cases in which the works are registered with the Copyright Office. This last point is particularly relevant since Masnick seems eager to end the automatic copyright formalized in the 1976 act when he cites Clinton’s reference to “orphan works” and writes, “the only real solution to the orphan works problem is to go back to … requiring registration to get a copyright.”  But as a practical reality, when it comes to litigation and statutory damages, copyright registration is required, so the real pen-and-paper debate is not exactly defined by the lines Masnick is drawing with his oversized crayons.

“…fair use…”

As for the opposing view on incentives, it’s odd for Masnick to invoke fair use and DMCA safe harbors* when neither subject means anything without an enforceable regime of copyright in the first place. For example, to call fair use an incentive is preposterous absent an enforceably copyrighted work that is being used, so it cannot accurately sit on the opposite side of an imaginary line supposedly contrasting different incentives.  Fair use is a possible consideration, but most of the time, most creators don’t even think about copyright when they begin to author their own expressions.  This is because the idea/expression distinction in the law already has them well covered nearly all of the time—a principle codified into federal copyright law 136 years ago relative to the decade since Web 2.0 supposedly stirred up all this fair use controversy for all manner of creators.

“…DMCA safe harbors…”

I assume Masnick is not saying that the DMCA liability shield (safe harbor) for OSPs directly incentivizes creators.  Presumably, he’s saying that the safe harbor is necessary to provide a foundation to incentivize the blogger or YouTuber to create new works via these platforms, but that’s a pretty big logical leap.  As with the fair use fallacy, this view assumes that infringement is integral to expression and the incentive to express.  Additionally, the safe harbor shield doesn’t technically protect the user/creator at all. As noted in my recent post about Lewis Bond, this conflating of the OSP’s interests with the user’s interests is part of what I think gets some creators into legal hot water.  While, it is true that platforms like YouTube foster new forms of expression (e.g. mashups) that ask new questions about copyright’s boundaries and exceptions, it is misleading to highlight safe harbor as an incentive for those who make these expressions, especially when the liability shield clearly provides an incentive for OSPs to turn a blind eye to obvious infringements.

In my experience the most consistent incentive I’ve encountered among creators I’ve known, or known about, is that copyright inextricably links a given expression to its author.  This is not only a significant motivation for creators—one that often transcends money—but it is also a distinction that benefits society most by preserving the relevance of context—a value Web 2.0 seems well-suited to destroy with alarming frequency.

As for candidate Clinton, Masnick and I clearly want to hear different specifics from her as she progresses toward the White House (I hope).  Based on the choice of rhetoric in the brief, though, I do suspect the internet industry had a hand in its writing.  In particular, the arbitrary reference to “orphan works” is bizarre—as though this arcane bit of copyright flotsam represents some untapped cultural or economic potential for America.  Overall, between the brief and Masnick’s comments, it seems we’re in stuck in the meta-debate about what the debate is about.

*I’m ignoring user rights because it’s too vague and too broad.