Copyright lawyers are being replaced by robots – well, algorithms at least. And this is not good for lawyers. It’s also not good for copyright holders, and those who make fair use of copyrighted works.
The current robolawyers are making copyright infringement decisions, and acting as lawyer, judge and executioner in copyright cases in nanoseconds. It represents a disturbing trend of using computers and algorithms to enforce legal rights rather than using actual living and breathing lawyers.
We see algorithms determining whether actions violate copyright and trademark laws, whether e-mail messages violate the CAN SPAM laws, and whether images violate child pornography or obscenity laws.
Algorithms not people determine whether your phone messages are read, your activities surveilled, and your face profiled. Algorithms determine what ads you get, whether you get credit, and how you get discriminated against (um, I mean “selected”) in jobs, credit, promotion, sales, marketing, and advertising. It’s not just “big” data. It’s Skynet. So maybe we need more lawyers, or more algorithms.
In the “old” days – say the 1980’s or 1990’s – if a person or entity did something that might have constituted an infringement of a copyrighted work, the copyright holder would first hire an army of lawyers that Groucho Marx, in a classic response to a copyright infringement claim by Warner Brothers, once referred to as “fine fellows with curly black hair, double-breasted suits and a love of their fellow man that out-Saroyan’s Saroyan.”
These “fine fellows” would then send a threatening and intimidating letter to the dastardly infringer, threatening fire and brimstone (not to mention absurdly expensive litigation) in the event that the infringer did not “cease and desist” (what if they merely ceased, but did not desist?) from their nefarious conduct.
The recipient of the threatening letter could either agree to cease and/or desist, could tell the writer to pound sand, or could present a defense to the allegedly infringing conduct. Or they could do what Groucho did to the Warner Brothers, and write back noting “I have a hunch that his attempt to prevent us from using the title is the brainchild of some ferret-faced shyster, serving a brief apprenticeship in your legal department. I know the type well—hot out of law school, hungry for success, and too ambitious to follow the natural laws of promotion. This bar sinister probably needled your attorneys, most of whom are fine fellows with curly black hair, double-breasted suits, etc., into attempting to enjoin us. Well, he won’t get away with it! We’ll fight him to the highest court!”
If the copyright holder still felt put upon, they could sue. They would go to federal court, pay a filing feel, draft out an infringement complaint, and then have to prove – by a preponderance of evidence before a jury – that they were (1) the actual owner of a legitimate copyright to the work; (2) that the copyright was currently valid and was valid at the time of the alleged infringement; (3) that the copyright holder had no permission, license (express or implied) or other right to use the work in the manner in which it was used; (4) that the use of the work “infringed” the copyright holder’s “bundle of rights;” and (5) this infringement caused harm, loss or damage to the copyright holder, or entitled the copyright holder to certain statutory damages.
The alleged infringer had rights under this system too. The infringer could wait to see what evidence the copyright holder presented. If the copyright holder had failed to appropriately protect the work, or could not show the existence of a valid copyright, then the alleged holder could not meet their burden of proof. If the alleged infringer could show the existence of an express or implied license to use the work in the way they did, or that their use of the work constituted a “transformative” use that did not infringe the copyright holder’s rights, they could also win. The system involved human beings making human decisions. As a result, it was slow, inefficient, wasteful and time consuming. It was also unpredictable. Copyright holders could actually lose in court. And we wouldn’t want THAT to happen.
Even if the copyright holder didn’t want the user to use the work – and expressly forbade it in no uncertain terms – this does not mean that the user is without rights.
Under the copyright law, a “fair use” of a copyrighted work does not constitute an infringement. While there is no set definition of what makes a use of a copyrighted work “fair” the copyright law 17 U.S.C. § 107 will look at things like:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
So if there is a non-commercial use of a copyrighted work (particularly but not exclusively a portion of a copyrighted work), which does not impact the potential market or value of the copyrighted work, and the use of the work is for non-profit educational purposes, then the use is likely to be permitted even though the copyright holder hasn’t authorized it, and even if the copyright holder doesn’t want it to be used.
As one court indicated in deciding that the use of the characters in “Gone With the Wind” in a derivative work called “The Wind Done Gone” did NOT constitute an infringement despite the vehement protests of the author, the idea of fair use reflects copyright law’s careful consideration of First Amendment principles, as fair use permits later authors “to use a previous author’s copyright to introduce new ideas or concepts to the public.”
One area of “fair use” is when a party uses a copyrighted work to create a “parody” of the original copyrighted work. Thus, when the group 2 Live Crew parodies Roy Orbison’s “Pretty Woman” the Supreme Court held that Orbison’s music label couldn’t take down the work, or demand royalties because the parody constituted “fair use” of the work.
The Supreme Court held flat out that “Suffice it to say now that parody has an obvious claim to transformative value, as [the Plaintiff] itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107.”
As one commentator noted, “if a copyright holder is able to short circuit all satirical opinions he disagrees with, the fair use focus on stimulating creativity may be frustrated. Additionally, because broad social criticism is arguably more valuable than parodic criticism of an individual work, satire may have a strong claim to fulfilling the role fair use was intended to play (distinguishing between PARODY — where the original copyrighted work is what is mocked, and SATIRE, where the original copyrighted work is used to mock something else.)
So parody, and to a lesser extent satire are likely to be considered “fair uses” – especially where the use is not for commercial purposes.
Scholars debate whether a “fair use” means that the use is not infringing, or whether it is a defense to a claim of infringement. If it is merely a defense to a claim of infringement, then a horde of lawyers for Warner/Chappel music could bust into your 5-year-old’s birthday party, and demand damages and injunctive relief (as well as statutory fines and penalties, and potential criminal prosecution for willful infringement) when you and grandma sang “Happy Birthday” to the little tyke.
The burden would be on YOU then to show that your wishing the 5-year-old a happy annual trip around the Sun did not violate the conglomerate’s intellectual property rights. If fair use is simply not an infringement, then the allegation that the noncommercial use of the song at a private function constituted an infringement could be thrown out on its face.
But it ‘aint the ‘80’s anymore.’ Copyright infringement, and preventing infringement is big business. Google and Viacom just settled a massive lawsuit involving the posting of materials to YouTube. Because the Interwebs makes it so easy for people to copy, sample and post copyrighted materials online, Congress passed the Digital Millennium Copyright Act to give copyright holders the ability to prevent infringements, and to give hosting companies like Google and others immunity from infringement liability without having to go to court.
The way it is supposed to work is simple. Rather than going to court and getting an injunction or suing for damages, the copyright holder sends a notice to the hosting company that they are the holder of a valid copyright, and that the posted work infringes. The hosting company tells the person or entity that posted the information about the notice. If the poster agrees or fails to respond, then the infringing work is taken down. If the poster challenges the copyright, (or claims fair use) the material can stay up.
In 2007 Stephanie Lenz of Gallatin, Pennsylvania posted an innocuous video of her 18-month-old son Holden pushing a baby toy while dancing to a barely recognizable song. Prince’s “Let’s Go Crazy” in the background. Prince’s record label demanded that YouTube take the song down, alleging that they had a “good faith belief” that Lenz’s posting was “not authorized by the copyright owner, its agent, or the law.”
They also requested that YouTube inform Lenz of the illegality of her conduct. Copyright holders have been consistently using – and abusing the takedown provisions of the DMCA to remove content not because of its infringing nature, but because they didn’t like the messages created.
So when a suburban Washington D.C. high school posted an “homage” to Katy Perry’s song “ROAR” in furtherance of a contest sponsored by the singer herself to raise funds for leukemia research, not a peep was made by Capitol Records. The use of the song was not officially licensed, but it promoted the song, the artist and the album, was not for commercial use, and generally met the requirements of “fair use.” So nothing happened. And that’s good.
Presumably a HUMAN BEING (or a lawyer) made a determination that the video was harming nobody, and in fact was helping promote the album. HUMANS 1, ROBOTS, 0.
But when a student at that school posted a campaign video parodying the original montage scene in the 1976 Movie “Rocky” the Robolawyers went to work.
The parody contained, as background music, snippets from the Bill Conti songs, “Going the Distance,” “The Final Bell,” and of course, “Gonna Fly Now,” while showing the candidate running through the streets, doing pushups, (no carcass punching) and otherwise preparing for the campaign in the Rocky™ trademark grey sweats and knit cap.
It’s clearly a non-commercial parody of a single scene of the movie, and lasts a total of a minute and a half. If there was a HUMAN (or even a lawyer) there wouldn’t be a thought of filing a trademark infringement lawsuit in federal court. They would be laughed out of court. Even if the use of the music was not officially licensed, and – and this is important – even if the use of either the parody video or the soundtrack actually infringes the copyright, there is a saying in the law “de minimus non curat lex” – the law doesn’t care about little things. So the campaign video would be fine, just as the toddler’s birthday party would be fine.
Enter the Robolawyers
Instead of humans, copyright holders AND hosting companies are now using algorithms, not only to identify when their copyrighted materials are located online, but also to automate the process of taking down allegedly infringing materials. NO LAWYERS were harmed in connection with these takedowns. So takedown notices by copyright holders are being automated. That’s bad enough. But it’s getting worse.
When the candidate posted the Rocky™ video, on YouTube, the Google subsidiary did not even wait for a copyright notice and a takedown notice to leap into action. Using an algorithm provided either on their own or by copyright holders, YouTube automatically wiped the soundtrack and provided the poster with a notice that it was removed “at the request of the copyright holder.” Really? They woke Bill Conti up in the middle of the night, and asked his opinion? Really? I don’t think so.
Now to be accurate, YouTube didn’t actually take down the video. What they did is block the video from being shown on portable devices like iPhones, android phones, tablets, etc. Not just the audio, but they have prevented anyone on any of those devices from seeing any of the video, or from listening to any of the audio posted – not just the song(s). They have allegedly done this “at the request of the copyright holder.” But there was NEVER a DMCA takedown notice. There was never an opportunity to challenge the copyright. There was never an opportunity to assert fair use.
It’s not clear if it’s the MUSIC or the VIDEO that is alleged to have been infringed. Does United Artists (or Sly Stallone himself) object to the video of the kid in the sweat pants? Or does Bill Conti object to the fact that people might use the YouTube Video to surreptitiously listen to the Rocky™ theme song while jogging without paying royalties? If this was an actual LAWSUIT we would find out. If it was an actual DMCA takedown notice, we MIGHT find out. It’s none of that.
It’s self-help. If you don’t like it – too bad. As bad as the DMCA is for tipping the scales of justice in favor of those who want to use copyright law to suppress dissent or fair use, this is even worse. There isn’t even a hint of due process here. No opportunity to assert fair use. And Google/YouTube is the honey badger here. Honey badger don’t care.
Companies are increasingly using automatons to do what lawyers used to do. This means that marketing companies (internal or external) run the risk that a robolawyer will place them on a spam “black list” and they will be banned from communicating with their customers (what the law calls tortious interference with a business relationship.) Pictures will be automatically removed based upon algorithms that identify the subject, not necessarily the copyright holder. People are selected for targeting or credit collection based upon algorithms that collect, store and process data. Individual judgment, and a judicial judgment are replaced with autonomous algorithms and “levels of certainty.” It’s fast. It’s efficient. But then again, so was the Terminator™.
We need a balance between algorithms that can IDENTIFY potential legal actions, and HUMANS that can decide whether to act on the information identified. There’s an old saying that the definition of a gentleman is a person who knows how to play the accordion, but chooses not to. Or as Shakespeare said, “Discretion is the better part of valor.” He also said, “First thing we do, let’s kill all the lawyers.” So there it is.