Tag: fairuse

Does AI Infringe Copyright?

A previous blog post addressed the question whether AI-generated creations are protected by copyright. This could be called the “output question” in the artificial intelligence area of copyright law. Another question is whether using copyright-protected works as input for AI generative processes infringes the copyrights in those works. This could be called the “input question.” Both kinds of questions are now before the courts. Minnesota attorney Tom James describes a framework for analyzing the input question.

The Input Question in AI Copyright Law

by Thomas James, Minnesota attorney

In a previous blog post, I discussed the question whether AI-generated creations are protected by copyright. This could be called the “output question” in the artificial intelligence area of copyright law. Another question is whether using copyright-protected works as input for AI generative processes infringes the copyrights in those works. This could be called the “input question.” Both kinds of questions are now before the courts. In this blog post, I describe a framework for analyzing the input question.

The Cases

The Getty Images lawsuit

Getty Images is a stock photograph company. It licenses the right to use the images in its collection to those who wish to use them on their websites or for other purposes. Stability AI is the creator of Stable Diffusion, which is described as a “text-to-image diffusion model capable of generating photo-realistic images given any text input.” In January, 2023, Getty Images initiated legal proceedings in the United Kingdom against Stability AI. Getty Images is claiming that Stability AI violated copyrights by using their images and metadata to train AI software without a license.

The independent artists lawsuit

Another lawsuit raising the question whether AI-generated output infringes copyright has been filed in the United States. In this case, a group of visual artists are seeking class action status for claims against Stability AI, Midjourney Inc. and DeviantArt Inc. The artists claim that the companies use their images to train computers “to produce seemingly new images through a mathematical software process.” They describe AI-generated artwork as “collages” made in violation of copyright owners’ exclusive right to create derivative works.

The GitHut Copilot lawsuit

In November, 2022, a class action lawsuit was filed in a U.S. federal court against GitHub, Microsoft, and OpenAI. The lawsuit claims the GitHut Copilot and OpenAI Codex coding assistant services use existing code to generate new code. By training their AI systems on open source programs, the plaintiffs claim, the defendants have allegedly infringed the rights of developers who have posted code under open-source licenses that require attribution.

How AI Works

AI, of course, stands for artificial intelligence. Almost all AI techniques involve machine learning. Machine learning, in turn, involves using a computer algorithm to make a machine improve its performance over time, without having to pre-program it with specific instructions. Data is input to enable the machine to do this. For example, to teach a machine to create a work in the style of Vincent van Gogh, many instances of van Gogh’s works would be input. The AI program contains numerous nodes that focus on different aspects of an image. Working together, these nodes will then piece together common elements of a van Gogh painting from the images the machine has been given to analyze. After going through many images of van Gogh paintings, the machine “learns” the features of a typical Van Gogh painting. The machine can then generate a new image containing these features.

In the same way, a machine can be programmed to analyze many instances of code and generate new code.

The input question comes down to this: Does creating or using a program that causes a machine to receive information about the characteristics of a creative work or group of works for the purpose of creating a new work that has the same or similar characteristics infringe the copyright in the creative work(s) that the machine uses in this way?

The Exclusive Rights of Copyright Owners

In the United States, the owner of a copyright in a work has the exclusive rights to:

  • reproduce (make copies of) it;
  • distribute copies of it;
  • publicly perform it;
  • publicly display it; and
  • make derivative works based on it.

(17 U.S.C. § 106). A copyright is infringed when a person exercises any of these exclusive rights without the copyright owner’s permission.

Copyright protection extends only to expression, however. Copyright does not protect ideas, facts, processes, methods, systems or principles.

Direct Infringement

Infringement can be either direct or indirect. Direct infringement occurs when somebody directly violates one of the exclusive rights of a copyright owner. Examples would be a musician who performs a copyright-protected song in public without permission, or a cartoonist who creates a comic based on the Batman and Robin characters and stories without permission.

The kind of tool an infringer uses is not of any great moment. A writer who uses word-processing software to write a story that is simply a copy of someone else’s copyright-protected story is no less guilty of infringement merely because the actual typewritten letters were generated using a computer program that directs a machine to reproduce and display typographical characters in the sequence a user selects.

Contributory and Vicarious Infringement

Infringement liability may also arise indirectly. If one person knowingly induces another person to infringe or contributes to the other person’s infringement in some other way, then each of them may be liable for copyright infringement. The person who actually committed the infringing act could be liable for direct infringement. The person who knowingly encouraged, solicited, induced or facilitated the other person’s infringing act(s) could be liable for contributory infringement.

Vicarious infringement occurs when the law holds one person responsible for the conduct of another because of the nature of the legal relationship between them. The employment relationship is the most common example. An employer generally is held responsible for an employee’s conduct,  provided the employee’s acts were performed within the course and scope of the employment. Copyright infringement is not an exception to that rule.

Programmer vs. User

Direct infringement liability

Under U.S. law, machines are treated as extensions of the people who set them in motion. A camera, for example, is an extension of the photographer. Any images a person causes a camera to generate by pushing a button on it is considered the creation of the person who pushed the button, not of the person(s) who manufactured the camera, much less of the camera itself. By the same token, a person who uses the controls on a machine to direct it to copy elements of other people’s works should be considered the creator of the new work so created. If using the program entails instructing the  machine to create an unauthorized derivative work of copyright-protected images, then it would be the user, not the machine or the software writer, who would be at risk of liability for direct copyright infringement.

Contributory infringement liability

Knowingly providing a device or mechanism to people who use it to infringe copyrights creates a risk of liability for contributory copyright infringement. Under Sony Corp. v. Universal City Studios, however, merely distributing a mechanism that people can use to infringe copyrights is not enough for contributory infringement liability to attach, if the mechanism has substantial uses for which copyright infringement liability does not attach. Arguably, AI has many such uses. For example, it might be used to generate new works from public domain works. Or it might be used to create parodies. (Creating a parody is fair use; it should not result in infringement liability.)

The situation is different if a company goes further and induces, solicits or encourages people to use its mechanism to infringe copyrights. Then it may be at risk of contributory liability. As the United States Supreme Court has said, “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005). (Remember Napster?)

Fair Use

If AI-generated output is found to either directly or indirectly infringe copyright(s), the infringer nevertheless might not be held liable, if the infringement amounts to fair use of the copyrighted work(s) that were used as the input for the AI-generated work(s).

Ever since some rap artists began using snippets of copyright-protected music and sound recordings without permission, courts have embarked on a treacherous expedition to articulate a meaningful dividing line between unauthorized derivative works, on one hand, and unauthorized transformative works, on the other. Although the Copyright Act gives copyright owners the exclusive right to create works based on their copyrighted works (called derivative works), courts have held that an unauthorized derivative work may be fair use if it is “transformative.: This has caused a great deal of uncertainty in the law, particularly since the U.S. Copyright Act expressly defines a derivative work as one that transforms another work. (See 17 U.S.C. § 101: “A ‘derivative work’ is a work based upon one or more preexisting works, . . . or any other form in which a work may be recast, transformed, or adapted.” (emphasis added).)

When interpreting and applying the transformative use branch of Fair Use doctrine, courts have issued conflicting and contradictory decisions. As I wrote in another blog post, the U.S. Supreme Court has recently agreed to hear and decide Andy Warhol Foundation for the Visual Arts v. Goldsmith. It is anticipated that the Court will use this case to attempt to clear up all the confusion around the doctrine. It is also possible the Court might take even more drastic action concerning the whole “transformative use” branch of Fair Use.

Some speculate that the questions the Justices asked during oral arguments in Warhol signal a desire to retreat from the expansion of fair use that the “transformativeness” idea spawned. On the other hand, some of the Court’s recent decisions, such as Google v. Oracle, suggest the Court is not particularly worried about large-scale copyright infringing activity, insofar as Fair Use doctrine is concerned.

Conclusion

To date, it does not appear that there is any direct legal precedent in the United States for classifying the use of mass quantities of works as training tools for AI as “fair use.” It seems, however, that there soon will be precedent on that issue, one way or the other. In the meantime, AI generating system users should proceed with caution.

Photographers’ Rights: Warhol Case Tests the Limits of Transformative Use

The U.S. Supreme Court will soon hear Andy Warhol Foundation for the Visual Arts v. Goldsmith. Attorney Thomas James explains what is at stake for photographers

In a previous post, I identified the Second Circuit’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith as one of the three top copyright cases of 2021. It has since been appealed to the United States Supreme Court. Oral argument is scheduled for October 12, 2022.

The dispute

The underlying facts in the case, in a nutshell, are these:

Lynn Goldsmith took a photograph of Prince in her studio in 1981. Later, Andy Warhol created a series of silkscreen prints and pencil illustrations based on it. The Andy Warhol Foundation sought a declaratory judgment that the artist’s use of the photograph was “fair use.” Goldsmith counterclaimed for copyright infringement. The district court ruled in favor of Warhol and dismissed the photographer’s infringement claim.

The Court of Appeals reversed, holding that the district court misapplied the four “fair use” factors and that the derivative works Warhol created do not qualify as fair use.

The United States Supreme Court granted the Warhol Foundation’s certiorari petition.

The issue

In this case, the U.S. Supreme Court is being called upon to provide guidance on the meaning and scope of “transformative use” as an element of fair use analysis. At what point does an unauthorized, altered copy of a copyrighted work stop being an infringing derivative work and become a “transformative” fair use?

The Conundrum

In the chapter on copyright in my book, E-Commerce Law, I predicted a case like this would be coming before the Supreme Court at some point. As I noted there, a tension exists between the Copyright Act’s grant of the exclusive right to authors (or their assignees and licensees) to make modified versions of their works (called “derivative works”), on one hand, and the idea that making modified versions of copyrighted works is transformative fair use, on the other. The notion that making changes to a work that “transform” it into a new work qualifies as fair use obviously threatens to swallow the rule that only the owner of the copyright in a work has the right to make new works based on the work.

Lower courts have not been consistent in their interpretations and approaches to the transformative use concept. The Warhol case presents a wonderful opportunity for the Supreme Court to provide some guidance.

Campell v. Acuff-Rose Music

The “transformative use” saga really begins with the 1994 case, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Unable to secure a license to include “samples” (copies of portions) of the Roy Orbison song, “Oh Pretty Woman” in a new version they recorded, 2 Live Crew proceeded to record and distribute their version with the unauthorized sampling anyway, invoking “fair use.”

In a decision that took many attorneys and legal scholars by surprise, the Supreme Court held that 2 Live Crew did not need permission to copy and distribute the work even though the work they created involved substantial copying of the Orbison song. To reach this conclusion, the Court propounded the notion that copying portions of another work — even substantial portions of it — may be permissible if the resulting work is “transformative.” This, the Court held, could hold true sometimes even if the newly created work is not a parody of the original.

In the years that followed, courts have struggled to determine what is a “transformative” modification of a work and what is a non-transformative modification of it. Some courts have demonstrated a willingness to apply the doctrine in such a way as to nearly nullify the exclusivity of an author’s right to make modified versions of his or her works.

Courts have also demonstrated a lack of consistency with respect to how they incorporate and apply “transformativeness” within the four-factor test for fair use set out in 17 U.S.C. Section 107.

Why It Matters

This might seem like an arcane legal issue of little practical significance, but it really isn’t. People are already pushing the transformative use idea into new realms. For example, some tattoo artists have claimed in court filings that they do not need permission to make stencils from photographs because copying a photograph onto skin is a “transformative use.”

Of course, making and distributing exact copies of a photograph for sale in a stream of commerce that directly competes with the original photograph should not be susceptible to a transformative fair use claim. But how far can the claim be carried? If copying a photograph onto somebody’s skin is “transformative” use, would copying it onto somebody’s shirt also be “transformative”?

Clarity and guidance in this area are sorely needed. Hopefully the Supreme Court will take this opportunity to furnish it.

Contact Cokato copyright attorney Thomas James

Need help with registering a copyright or with a copyright problem? Contact attorney Thomas James.

The Internet Archive Lawsuit

Thomas James (“The Cokato Copyright Attorney”) explains how Hachette Book Group et al. v. Internet Archive, filed in the federal district court for the Southern District of New York on June 1, 2020, tests the limits of authors’ and publishers’ digital rights in their copyright-protected works.

The gravamen of the complaint is that Internet Archive (“IA”) allegedly scanned books and made them freely available to the public via an Internet website without the permission of copyright rights-holders. Book publishers filed this lawsuit alleging that IA’s activities infringe their exclusive rights of reproduction and distribution under the United States Copyright Act.

As of this writing, the case is at the summary judgment stage, with briefing currently scheduled to end in October, 2022. Whatever the outcome, an appeal seems very likely. Here is an overview to bring you up to speed on what the case is about.

The undisputed facts

Per the parties’ stipulation, the following facts are not disputed:

The case involves numerous published books which the publishers who filed this lawsuit (Hachette Book Group, HarperCollins, Penguin Random House, and John Wiley &  Sons) have exclusive rights, under the United States Copyright Act, to reproduce and distribute.

Internet Archive and Open Library of Richmond are nonprofit organizations the IRS has classified as 501(c)(3) public charities. These organizations purchased print copies of certain books identified in the lawsuit.

The core allegations

The plaintiffs allege that IA obtains print books that are protected by copyright, scans them into a digital format, uploads them to its servers, and then distributes these digital copies to members of the public via a website – all without a license and without any payment to authors and publishers. Plaintiffs allege that IA has already scanned 1.3 million books and plans to scan millions more. The complaint describes this as “willful digital piracy on an industrial scale.”

Defenses?

First sale doctrine

One justification that is sometimes advanced for making digital copies of a work available for free online without paying the author or publisher is the so-called “first sale” doctrine. This is an exception to copyright infringement liability that essentially allows the owner of a lawfully acquired copy of a work to sell, transfer or lend it to other people without incurring copyright infringement liability. For example, a person who buys a print edition of a book may lend it to a friend or sell it at a garage sale without having to get the copyright owner’s permission. More to the point, a library may purchase a copy of a print version of a book and proceed to lend it to library patrons without fear of incurring infringement liability for doing so.

The doctrine does not apply to all kinds of works, but it does generally apply  to print books.

The first sale doctrine only provides an exception to infringement liability for the unauthorized distribution of a work, however. It does not provide an exception to liability for unauthorized reproduction of a work. (See 17 U.S.C. § 109.) Scanning books to make digital copies is an act of reproduction, not distribution. Accordingly, the first sale doctrine does not appear to be a good fit as a defense in this case.

“Controlled digital lending”

Public libraries lend physical copies of the books in their collections to library patrons for no charge.  Based on this practice, a white paper published by David R. Hansen and Kyle K. Courtney makes the case for treating the distribution of digitized copies of books by libraries as fair use, where the library maintains a one-to-one ratio between the number of physical copies of a book it has and the number of digital “check-outs” of the digital version it allows at any given time.

The theory, known as controlled digital lending (“CDL”), relies on an assumption that the distribution of a work electronically is the functional equivalent of distributing a physical copy of it, so long as the same limitations on the ability to “check out” the work from the library are imposed.

Publishers dispute this assumption. They take the position that there are important differences between e-books and print books. They maintain that these differences justify the distribution of e-books under a licensing program separate and distinct from their print book purchasing programs. They also question whether e-books are, in fact, distributed subject to the same limitations that apply to a print version of the book.

Fair use

Whether a particular kind of use of a copyright-protected work is “fair use” or not requires consideration of four factors: (1) the nature of the work; (2) the character and purpose of the use; (3) the amount and substantiality of the portion copied; and (4) the effect of the use on the market for the work.

Supporters of free access to copyrighted works for all tend to focus on the “character and purpose” factor. They can be relied upon to argue that free access to literary works is a great benefit to the public. Authors and publishers tend to focus on the other factors. In this case, it seems possible that the factors relating to the amount copied and the effect of the use on the market for the work could weigh against a finding of fair use.  

The federal district court in this case is being called upon to evaluate those factors and decide whether they weigh in favor of treating CDL – or at least, CDL as IA has applied and implemented it – as fair use or not.

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The Cokato Copyright Attorney (Minnesota lawyer Thomas B. James) will be following this case closely. Subscribe for updates as the case makes its way through the courts.

Contact attorney Thomas James

Need help registering a copyright or trademark, or with a copyright or trademark problem? Contact Cokato, Minnesota attorney Tom James.

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