My Response to Your Comments on My Last Article.
by: Frank Bilotto
Now I know what Howard Cosell must have felt like. For those of you too young to remember, Cosell was routinely voted the best and the worst, the smartest and the dumbest, and the most loved and most hated sportscaster, all in the same poll. Since my article, “Fair Use Opens the Door to IP Theft,” was published two weeks ago, I have received dozens of comments ranging from “best article I’ve ever read,” to “worst analysis ever”. There was no middle ground. I never imagined an article of mine would spark so much agreement, disagreement, congratulations and scorn. If I cared about my instagram page, I now know how I can get thousands of followers. So, since the proverbial can of worms has been opened, without naming names, I’m going to address most of your comments. Because I’m a gentleman, there’ll be no names disclosed. I’m not going to share any of your comments, only my responses. But you’ll know when I’m writing to you.
Say it Loud!
The rise of the internet in the mid-90’s, digital technologies made it easier to copy and share copyrighted works, leading to more fair use situations. This increased public awareness and reliance on fair use. Organizations like the Electronic Frontier Foundation (EFF) actively promoted fair use as a right, encouraging people to use it proactively for creative expression and innovation.
EFF has consistently framed fair use as a positive right that empowers individuals to express themselves, build upon existing works, and engage in critical commentary. This shift in narrative has helped to confuse the concept of Fair Use and encourage people to use it proactively. EFF’s efforts have contributed to a greater sense of confidence for those who believe all content on the web is “Freeware” exercising their fair use rights. This has led to an online culture, where people feel empowered to remix, reimagine, and respond to existing works, including AI developers.
I’m reminded of what I did 50 years ago. As a teenager in the 1970s, my father bought a cassette recorder for me. I made cassette copies of popular albums, directly from my record player’s speakers and sold to my friends in school for $3.50, a 50% discount on the retail price of the album. If you read my article last week, whether you’re a lawyer or not, you now know that what I did would not be characterized as fair use even in the most liberal interpretation of the Copyright Act of 1976.
Today, many content creators perceive fair use as a right that protects their use of copyrighted material without permission. This perception is reinforced by online platforms and resources that actively encourage the unauthorized use of copyrighted content. However, despite this widespread perception, fair use legally remains a defense against copyright infringement. It’s not a right that can be actively asserted. You can’t, for instance, sue someone for preventing you from making fair use of their work. Instead, it’s a defense that can be used if someone sues you for copyright infringement. This distinction between fair use as a perceived right and its actual legal status as a defense to copyright infringement still baffles legal scholars.
I didn’t know anything about copyright infringement and fair use in 1975. But even then, I knew what I was doing was wrong. You’ll never convince me that EFF doesn’t know there’s something inherently wrong about what they’re promoting.
Get Up Offa that Thing
My article last week was based on my presumption as a licensed attorney specializing in intellectual property that fair use has been traditionally viewed as a defense. I pointed to recent public statements and conduct by AI companies as misinterpreting the intent of the Copyright Act to protect a right. However, despite the intent of the statute, as I looked into the past to evaluate how defendants have typically stood behind the idea of fair use, I’m not sure there ever was a shift in how people have viewed the concept of fair use. From the earliest days of copyright infringement, defendants attempted to justify their unauthorized use of copyrighted material through the concept of fair use.
Some have argued that when fair use is seen only as a defense, it has a “chilling effect” on creativity. People may be hesitant to use copyrighted material even for legitimate purposes, fearing expensive lawsuits and potential legal repercussions. This fear can stifle innovation and limit the free flow of information. On the other hand, viewing fair use as a right encourages creative expression, innovation, and the open exchange of ideas. It empowers individuals to build upon existing works to create new and original content.
But here’s the flip side, the creator’s dilemma. Imagine pouring your heart and soul into a book, a song, a piece of software. Then, someone comes along and, under the claim of “fair use,” grabs a chunk of your work without asking, and without paying. Sure, maybe they’re not directly stealing your creation, but they’re profiting from your effort, your creativity. That doesn’t sit well with you, right? And it shouldn’t. Yet, that’s exactly what many defendants who have won copyright infringement claims over the years have done.
And knowing this is possible has certainly made content creators think twice. Why bother pushing boundaries if someone can just swoop in and freeload on your hard work? It’s like saying, “Hey, James Brown, great work composing and performing 96 songs that made the Billboard Top 100. but we’re going to let your music be used in over 8,000 hip hop songs over the past 50 years, without your permission or any payment to you.” By the way, the numbers in the previous sentence are true and correct. Now, do you see the problem? Fair use, while intended to promote creativity, can sometimes discourage it by undermining the very incentives that drive creators to create in the first place. If James Brown knew the fate of his music, is it possible that he may have limited his output? Probably not, but it doesn’t make it right.
It’s important to emphasize that fair use has a complex legal doctrine with no bright line, definitive answers. The problem is that it should. We can honestly debate where that bright line should be, but the line should exist. I find it ironic that copyright law provides a system of statutory damages, which means the court can award a set amount for infringement based on the circumstances, usually ranging from $750 to $30,000 per infringement, with the possibility of increasing to $150,000 for willful infringement, but has no statutory definition for what infringement is. You’d be hard pressed to find another statute at the municipal, state or federal level that defines the penalty while leaving the offense vague. Imagine if your state had a fine of $200 for speeding, but only a vague definition of what speeding is. You’re aware that speeding is a violation punishable by a $200 fine. You’re driving down a highway at what you determine to be a reasonably safe speed. A Police officer uses his judgement to pull you over for speeding and issues a citation to you. Then a judge uses a reasonable person standard to determine if you’re guilty, with no objective measurement to determine speeding. Doesn’t seem fair does it? But that’s exactly what the Copyright Act of 1976 does for creators and users of copyrighted material.
A Rose is Still a Rose
While the “Fair Use” doctrine is not exclusive to the United States, the U.S. system is unique. Many other countries have their own versions of copyright exceptions, but these often differ significantly from the U.S. approach. Some countries, like the UK and Canada, have a system called “fair dealing” instead of fair use. Unlike fair use, fair dealing typically specifies the purposes where copyright exceptions apply, such as research, private study, criticism, review, or news reporting. This is a more rigid system than fair use because it doesn’t allow for exceptions outside these specifically listed purposes. Other countries have different systems for limitations and exceptions to copyright, which may be broader or narrower than fair use, with varying criteria for determining if an exception applies. Some countries have no framework similar to fair use or fair dealing at all, making any use of copyrighted material without permission potentially considered infringement.
Pundits favoring the U.S. law stress that the differences between fair use and other systems is its flexibility. It’s not limited to specific purposes and allows for a case-by-case analysis based on the four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality used, and the effect of the use on the potential market for the copyrighted work. This flexibility is open to interpretation, and for many, allows for new and creative uses of copyrighted material that might not be covered by more rigid systems. This flexibility has precisely led to all the confusion surrounding fair use today. Predicting how fair use will apply in specific situations is challenging, but legal scholars claim that the doctrine permits adaptation of the law to new technologies and evolving uses of copyrighted material. I still say the flexibility in the determination of what is fair use is why I came to the conclusion in my previous article that the practice of scraping content by large language models may be interpreted to be fair use under the law, but it is definitely wrong.
Livin’ in America
While the U.S. fair use doctrine may have influenced some countries, it’s crucial to remember that copyright law is ultimately national law. Each country has its own system for protecting copyrighted works, and there is no international “fair use” standard. If you’re dealing with copyrighted material from or in a country other than the U.S., it’s essential to research the specific copyright laws and exceptions that apply in that country. It’s like when Bonnie and Clyde just had to beat police to the state line to avoid arrest, as police in one state had no authority to arrest someone beyond their jurisdiction. The big difference with fair use is that I can steal your assets without ever entering your jurisdiction.
CLI works with clients licensing content into China. We are often asked “are there strict copyright laws in China?” It’s not a simple yes or no answer when it comes to copyright in China. There are differences both legally and culturally in copyright enforcement between the U.S. and China. differences. Like in the US, copyright protection in China for works created by Chinese citizens or entities is automatic; original creations are protected immediately. If you’re not a Chinese citizen, China’s participation in the Berne Convention extends that protection to non-Chinese citizens and entities of countries that are signatories of Berne. China also has a concept of “fair use,” allowing for limited use of copyrighted material without permission, and participates in major international copyright treaties, recognizing copyrights from other member countries.
FYI: Licensing in China will be a focus of a future Content Licensing Brief article.
Play it Again, Sam
I want to revisit the relationship between copyright, creativity, and innovation, which raised a number of thought-provoking questions. While creativity can certainly exist without the Fair Use Doctrine, the proponents of fair use say that the doctrine plays a vital role in fostering a richer and more dynamic creative landscape.
Even without fair use, creators could still produce original works. Copyright law protects the expression of an idea, not the idea itself, allowing artists, writers, and musicians to draw inspiration from the world around them and create unique pieces. However, the absence of fair use would likely lead to a heavier reliance on licensing or seeking permission to use any portion of copyrighted works, and is that a bad thing? The worry by those that want to use the content is that the process could become costly and time-consuming, potentially hindering some creative endeavors. The concern is that transformative works, which reimagine or recontextualize existing material (like parodies, critical reviews, or remixes), would be significantly limited. These forms of expression often rely on fair use, and without it, they might be stifled.
Fair use allows creators to use existing works as building blocks for new creations. It enables them to incorporate, critique, and reimagine existing material in ways that spark innovation and push creative boundaries. Knowing they have some flexibility with fair use, creators are more likely to experiment, take risks, and explore new ideas without the constant fear of copyright infringement. Fair use facilitates critical analysis, commentary, and parody, which are essential for a healthy cultural discourse and contribute to a vibrant creative ecosystem. Ultimately, fair use helps balance the rights of copyright holders with the interests of the public, ensuring that copyright law doesn’t become an obstacle to creativity and free expression.
While fair use can encourage creative exploration, it also presents a potential downside for original creators. The very flexibility that allows for building upon existing works can also lead to situations where creators feel their work is being exploited without proper compensation or attribution, especially in the world of AI. This can create a chilling effect, discouraging artists from taking risks and innovating, as they may fear their efforts will be freely used by others, diluting their potential market and creative control. Striking a balance between fostering creativity and protecting the rights of original authors remains a central challenge in copyright law.
A true compromise on fair use recognizes the need to balance the benefits of creative reuse with the legitimate concerns of original creators. This could involve clearer guidelines and limitations on the extent of permissible use, perhaps with a greater emphasis on transformative use that genuinely adds new meaning or purpose. Additionally, promoting a culture of attribution and acknowledgment, even within fair use, could help ensure that original creators receive proper credit for their contributions. Exploring innovative licensing models and compensation mechanisms could further bridge the gap, allowing for creative reuse while ensuring that original creators are fairly rewarded for their work. Ultimately, the goal is to foster a system where creativity can flourish while respecting the rights and incentives of those who contribute to our shared cultural landscape.
While creativity would still exist without the Fair Use Doctrine, the doctrine acts as a catalyst for innovation and enriches the creative landscape. It provides creators with the freedom to experiment, build upon existing works, and engage in critical commentary, leading to a more diverse and dynamic cultural environment.
So, There is a Free Lunch
I was told the idea of “free” raw materials in the context of fair use is an interesting one. There is no industry that I am aware of that has free raw materials. Then why does AI consider other people’s content as free as they use content they scrape as raw material in LLM training and retrieval augmented generation?
Almost all creative works are protected by copyright, from books and music to software and artwork. These works serve as the “raw materials” for many industries. Fair use allows you to use copyrighted works without permission under certain circumstances, but it doesn’t grant ownership. You can’t simply take someone else’s creation and claim it as your own. Even when fair use applies, there are limitations. You typically can’t use the entire work, and your use must be transformative in some way. You also can’t harm the market for the original work.
However, some industries rely more heavily on fair use than others. Commentary and criticism, including reviewers, journalists, and bloggers, use fair use to quote from books, movies, and music in their critiques and analyses. Parody and satire often rely on fair use to create humorous or critical works based on existing material. Documentary filmmaking often incorporates archival footage, news clips, and other copyrighted material under fair use.
In these industries, fair use allows creators to build upon existing works to generate new knowledge, insights, and artistic expressions. While the “raw materials” aren’t free, fair use provides crucial flexibility that enables these industries to thrive.
It’s important to remember that fair use is a complex legal doctrine, and applying it correctly requires careful consideration of the four factors. By allowing for limited uses of copyrighted material without permission, fair use helps ensure a balance between protecting creators’ rights and promoting creativity and innovation.
Danger – Sharp Curves Ahead
Navigating the complexities of fair use in the digital age requires a multifaceted approach. To address the challenges highlighted in this article, we must take concrete steps. First, clarifying fair use guidelines with specific examples for AI training and content generation is crucial. This could involve creating a separate set of fair use principles for AI, recognizing its unique challenges. Simultaneously, promoting a culture of transparency and attribution in AI development is essential. AI developers should be upfront about the data used to train their models and provide clear attribution to original creators whenever possible, even within fair use boundaries. Furthermore, exploring innovative licensing models and compensation mechanisms that allow for the use of copyrighted material in AI development while ensuring fair compensation for original creators is key. This could involve collective licensing agreements, micro-licensing schemes, or revenue-sharing models.
Investing in technological solutions that can help identify and track the use of copyrighted material in AI-generated content is also vital. This could involve developing tools that can automatically detect copyrighted material and provide information about its origin and licensing status. Fostering collaboration and dialogue between copyright holders, AI developers, legal experts, and policymakers is equally important to address the evolving challenges of fair use in the AI era. This could involve establishing industry standards, creating forums for discussion, and conducting joint research. Finally, educating creators, AI developers, and the public about the principles of fair use and the responsible use of copyrighted material in AI development is necessary. This could involve developing educational resources, conducting workshops, and promoting public awareness campaigns. By taking these concrete steps, we can strive to create a more balanced and sustainable ecosystem that fosters innovation and creativity while respecting the rights of original creators. The goal is to ensure that copyright law remains a catalyst for progress, not a barrier, in the exciting era of artificial intelligence.
What Should You Do?
Content owners can protect themselves from fair use abuse by:
- Clearly marking their works with copyright notices. This reminds users that the work is protected.
- Registering their works with the Copyright Office. This establishes a public record of ownership and allows for statutory damages in infringement cases.
- Using technological protections like watermarks and encryption. This can deter unauthorized copying and distribution.
- Developing clear licensing terms and agreements. This clarifies how the work can be used and establishes payment structures.
- Monitoring how their works are being used online. This helps identify potential infringements and allows for prompt action.
- Educating their users about copyright law and fair use. This can prevent unintentional infringement and encourage respect for intellectual property rights.
- Enforcing their rights when necessary. This can involve sending cease and desist letters, negotiating settlements, or pursuing legal action.
- Embrace Creative Commons Licensing: Explore using Creative Commons licenses that offer some rights to the public while retaining others. This can encourage sharing and collaboration while setting clear boundaries.
- Community Engagement: Foster a community around your work where users understand and respect your rights. This can involve open dialogue about copyright and fair use.
- Metadata and Attribution: Embed detailed metadata within your digital files that clearly identify you as the creator. Encourage proper attribution wherever your work is used.
- Blockchain Technology: For certain types of content, blockchain technology can be used to create an immutable record of ownership and track the use of your work.
- Advocate for Stronger Copyright Laws: Support organizations and initiatives that advocate for balanced copyright laws that protect creators’ rights in the digital environment.
- Collaborate with Other Creators: Join forces with other creators to share knowledge, best practices, and legal resources for protecting your work.
What Can Media Companies Do To Support Copyright Compliance
Making it easy for people to ask for permission to use content encourages them to do the right thing. Here are some ways content owners can simplify the permission process:
- Provide Clear Contact Information: Feature a prominent “Licensing” or “Permissions” section on your website with a dedicated email address or contact form.
- Offer Pre-Clearance Options: For commonly requested uses, provide standardized license agreements or online forms that people can easily fill out and submit.
- Use a Rights Management Platform: There are platforms designed to manage licensing requests, automate approvals, and even handle payments.
- Set Reasonable Fees: If you charge for use, ensure your fees are transparent and fair. Consider offering tiered pricing based on the type of use.
- Respond Promptly: Reply to permission requests in a timely manner, even if it’s just to acknowledge receipt. This shows you’re responsive and approachable.
- Be Flexible: Be open to negotiating licensing terms to find mutually beneficial arrangements. Sometimes, granting permission with attribution can be sufficient.
- Consider Creative Commons: As mentioned earlier, Creative Commons licenses can simplify things by offering pre-approved usage rights for certain purposes.
I Feel Good
Making the permission process clear, straightforward, and user-friendly, content owners will encourage compliance and foster a culture of respect for copyright while still protecting their interests.
By taking these simple proactive steps, content owners and creators will reduce the risk of fair use abuse and protect their valuable intellectual property.
This isn’t over. Publishers have a choice between two paths ahead, each inspired by a James Brown song. It’s either going to be “Please, Please, Please,” or “Papa Don’t Take No Mess.” You already know which road I’m on.
Frank Bilotto is a licensed attorney with over 25 years of experience in commercializing intellectual property. He was instrumental in creating The World Reporter in 1999, an alliance of 10,000 daily newspapers, and the first such content alliance in the digital content space. He’s negotiated more than 1,000 intellectual property licenses with the world’s largest organizations, including Comcast, Google, BBC, NewsCorp, Gannett, ESPN, NBC, CBS, ATT, Dow Jones, Thomson Reuters, Facebook, Microsoft, Nike, Adidas, Hewlett Packard, Knight Ridder, Capitol Records, MGM and Paramount. Frank’s passion outside of content licensing is trying to love his neighbor as himself. (Unfortunately, he fails too often.)
