Maybe Computers Don’t Know What Fair Use Is Either

By on July 24, 2020

July 24, 2020

A report from the U.S. Copyright Office suggests that Digital Millennium Copyright Act case law addressing takedown attempts by copyright holders has tilted too far in favor of the online platforms that host the allegedly infringing content. As an example it considers the ruling in Lenz v. Universal Music Corp., the so-called “dancing baby case” from the Ninth Circuit. The court held that under Section 512 of the DMCA , copyright holders before sending a takedown notice must make a good-faith determination that the content in question is infringing, as opposed to its being a case of fair use. “This ruling,” says a post from law firm Orrick, “collides with the increasingly common practice of using Artificial Intelligence to monitor websites for potentially infringing content and raises an interesting question: can a computer meaningfully assess whether a use is ‘fair use’ for purposes of the Copyright Act?” The post concludes somewhat tentatively, noting that AI by definition is constantly improving, and that humans don’t consistently determine what constitutes fair use either. The authors cite an interesting quote from a judge in the seminal 1841 Supreme Court decision that actually engendered the concept of fair use, Folsom v. Marsh. Distinctions in patent and copyright law, wrote Justice Joseph Story, more than in any other area of the law, “are, or at least may be, very subtile and refined, and, sometimes, almost evanescent.” With regard to the utility of AI in making a fair use determination, the conclusion of the Orrick authors is that it could at least assist in an initial culling, after which a person could be called upon to finally make the decision. In its own introduction to the nearly 200-page report, the Copyright Office underscores the magnitude of the copyright monitoring task, noting that when Congress passed the DMCA in 1998 it surely understood the internet was growing. but it may have found it difficult “to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos, and other items, and service providers receive over a million notices of alleged infringement.”


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