“FAIR USE” AND A.I. PART 1

THE USE OF LARGE LANGUAGE MODELS scooping up copyrighted material has become a complex legal issue. Paula Samuelson’s article “Generative AI Meets Copyright” addresses fascinating aspects of this in AAAS Science, July 13, 2023. Here, in Parts 1 and 2 today and tomorrow, are tidbits gleaned from this article, together with those from my own data-scooping here at SimanaitisSays.

Earlier Tech, Earlier Conflicts. Paula Samuelson, at the Berkeley Law School, University of California, Berkeley, observes, “Conflicts between creators of copyrighted works and developers of technologies that enable the use of those creations in unexpected and innovative ways is nothing new. In the early 20th century, the disruptive technology of the day was player pianos. Music copyright owners sued the makers of piano rolls, claiming that rolls of their musical compositions were infringements.”

She continues, “Subsequent copyright-disruptive technologies have included cable television, photocopiers, videotape recording machines, and MP3 players, each of which (except photocopiers) attracted copyright industry challenges (all of which failed in the courts, although Congress sometimes later extended protections in the aftermath of failed lawsuits).”

The Purpose of Copyright. As background, Samuelson writes, “The Constitution gives Congress the power ‘to promote the progress of Science and useful Arts,’ that is, to foster the creation and dissemination of knowledge for the public good. This requires balancing the legitimate interests of copyright owners to prevent misappropriations of their works that undermine incentives to create with the legitimate interests of developers of innovative technologies and follow-on creators who need some breathing space in which they, too, can innovate.”

In the Courts Today. Briefly, Samuelson notes, “Copyright lawsuits that are now underway in the United States have substantial implications for the future of generative AI systems. If the plaintiffs prevail, the only generative AI systems that may be lawful in the United States would be those trained on public domain works or under licenses….”

Thus far, generative A.I. has not followed these two guidelines of “public domain” nor of “under license.” Also involved is the concept of “Fair Use.” 

Fair Use Criteria. “Under U.S. law,” Samuelson writes, “fair uses of in-copyright works do not infringe copyrights. Courts consider four factors when assessing fair use defenses: (i) the purpose of the challenged use, (ii) the nature of the copyrighted works, (iii) the amount and substantiality of the taking, and (iv) the effect of the challenged use on the market for or value of the copyrighted work. The purpose and market effects factors are generally the most important determinants in fair-use cases, but all four factors must be weighed together in a holistic analysis.”

Samuelson recounts, “Research, scholarship, and teaching are among the favored fair-use purposes, as are criticism, comment, and news reporting. Noncommercial uses are generally favored more than commercial uses.”

Tomorrow we’ll continued this learned discussion with thoughts of 2 Live Crew’s rap parody of Roy Orbison, SimanaitisSays and the Fair Use Doctrine, and other subtleties. ds 

© Dennis Simanaitis, SimanaitisSays.com, 2023