Comment Re:"Can't have it both ways" is the core argument (Score 1) 282
Still works fine, actually. And it's been closer to three decades now. 47 USC 230 is from 1996.
Still works fine, actually. And it's been closer to three decades now. 47 USC 230 is from 1996.
Good thing that wasn't the argument, then. In fact, your summary of it doesn't even make sense -- middlemen don't get in trouble for taking things down, they get in trouble for not taking things down.
What actually happened was that just before the Internet got big, two cases came down concerning different online services. CompuServe got sued for user-posted content, but was found not to be liable because they had not moderated anything and were just a middleman. Prodigy got sued for user-posted content and was found to be liable because they moderated their boards (for things like bad language; they wanted to be family friendly) but had failed to moderate every post perfectly. By letting one bad thing through, they were liable for it -- and by extension, anything else they had failed to catch.
Since Congress wanted sites to moderate user content -- they were really concerned about porn -- they passed a law that encouraged sites to do moderation but did not hold them responsible for failing to moderate every single little thing perfectly in every respect. Further, sites got to choose what they were moderating for -- could be porn, but could just as easily be off-topic posts, like talking about carrots when everyone else is talking about money.
In practice, sites don't like to moderate much -- it takes effort, it may lose engaged users, it costs money, it can't please everyone -- but they certainly can, and there's nothing wrong with it. Get rid of the protection of the CDA and sites won't be able to do mandatory moderation sufficiently, so they'll fall back on none. This is apparently okay with scum who get kicked off of boards left and right, but should not be okay with people who have standards and don't want to put up with that crap.
If you pinch "imply" hard enough you can make it mean "infer"
That statement itself is enough to pinch all the linguists out there.
What makes that the "correct" version? It seems the line has quite the history and has taken on many forms. Fwiw, Wikipedia justifies "implies".
I ought to be jealous of you. But i'm much too lazy.
I keep looking for these two links: https://slashdot.org/journal.pl?op=list and https://slashdot.org/journal.pl?op=edit.
I just read a comment: "Correlation does not connote causation." A search found the more common adage uses "imply" instead of "connote". Though, they are somewhat synonymous.
Anyway, that seems wrong. I mean, the whole point is that it does indeed imply causation. That's why we need to remind people that it does not equal causation.
Not swiping their fingerprints, just swiping the finger while using UI in general, is the claim.
This (*cough*) game was essentially invented almost fourteen years ago by Alex Steacy of LoadingReadyRun -- as a joke.
And then someone actually wrote it.
It is?
I assume that you're replying to the part about fair use turning prima facie infringements into non-infringing uses, but it's difficult to tell.
If so, well, that's the statute at work:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work
You don't think it's at all strange that the Supreme Court insists on explicit analysis of all four fair use factors, yet if while doing so you refer or even rely on the work's transformative nature, hey, don't sweat thinking about the right to prepare derivative works, close enough I'm sure.
No factor is determinative in fair use, even though often enough the fourth factor is. Always do the full test, every time. And recognize that much comes down to which side of the bed the judge got up on. It's not as bad as the copyright utility doctrine and conceptual separability, but it's not great. Look at time shifting; people extoll it as a classic fair use but really it fails on three out of four factors and is middling at best on the fourth, and was originally going to go the other way. Prof. Litman has a nice write-up about it. And for every example of fair use, there's always a counter example where the same sort of thing came out differently due to a minor factual difference.
Anyway, got a cite where a court held that a prima facie infringing use was a lawful fair use and which was nevertheless still an unlawfully infringing use meriting damages and/or injunctive relief? I'd love to read it. Closest thing that comes to mind was some of the section 1201 stuff from ages ago, distinguishing fair use from circumvention.
Indeed, the very problem I was trying to point out.
Doesn't sound like a problem to me.
Unless you're a copyright lawyer I'd avoid the "I'm a lawyer" credential in these discussions.
Oh boy, guess what? Even have an LL.M in IP.
the initial step being obvious fair use
There's really no such thing as an obvious fair use. It's always fact-intensive, always case-by-case. And there's always the risk of times changing. Format shifting comes to us from the RIAA v. Diamond case, and it's terrifying to think of how differently that gone had it been litigated just a few years later when the iTunes Music Store was open. I'll agree though that the use of pirated books for training was a bad idea, in that it does not help how a court will perceive the AI developers. Never a good idea to piss off a judge, and it's clear these guys were not thinking.
Still, there's no market for AI analysis of books as far as I know, and the use was transformative in nature given that no one appeared to be reading them, they were just grist for the mill. This is actually more favorable to fair use than Google Books, which is intended for some human to ultimately use to get to read snippets of text in search results. Imagine how strong Google's case would've been if they'd said that searching for a string of text points you to a book with no snippet or anything else to tell you what's inside. Maybe a page or chapter number, for all the good that does.
Once you get over the training hurdle though, it looks like pretty smooth sailing. The model is demonstrably lossy. It's too abstract to mesh with the concept of an abridgement or condensation. You might be able to get snippets here and there out of it, but I would imagine that given a few examples to dive deep into analyizing, OpenAI can show that they appear because they're built out of common chains of text from multiple works, or are overrepresented due to multiple copies of the work. (Kind of like how the image-generating AIs are said to like to make fake Getty Images watermarks because it saw so many of them in training data, so it must be important)
Personally, I like their chances. Either way, it'll be interesting to see.
2/ the nature of the copyrighted work;
Users are allowed more freedom with regard to non-fiction, since the facts therein are uncopyrightable, and the general organization may be as well. Fiction, being more creative, enjoys a bit more protection from potential fair users.
There is no way a fair use defense will pass muster here. Of course, I'm not a lawyer. But I have talked to a few about the scope of fair use before reusing data in my projects.
I'm a lawyer. I would suggest you take a look at the court opinions concerning Google Book Search. You may be surprised. Try Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013) which was at the trial level, and then Authors Guild, Inc. v. Google Inc., 804 F.3d 202 (2d Cir. 2015), when it went up on appeal.
If an infringing use is also a fair use, it is rendered non-infringing, and that's the end of the analysis. There are no additional steps after fair use.
What constitutes a derivative work though? A quote? An analysis? Using the ideas of a book in abstract to answer a question the book touches on?
Gotcha covered:
17 USC 501(a): Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122
17 USC 106: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
17 USC 101: A âoederivative workâ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a âoederivative workâ.
So there's your answer.
A quote is not a derivative work because it's not based on a preexisting work. Instead, that's a reproduction of part of the work (a separate exclusive right under 106, however). A literary analysis is not a derivative work, but if you dug too deep and merely produced an annotated work or adaptation, then it would be. It's not too hard to stay on the correct side of that line.
Using the ideas of a book in abstract to answer a question the book touches on?
Ideas can always be used. Facts -- or things claimed to be a real-life fact -- can always be used. But be cautious again of digging in too deeply. Castle Rock Entertainment Inc. v. Carol Publishing Group, 150 F.3d 132 (2d Cir. 1998) was a case where someone wrote a book of Seinfeld trivia questions. The questions weren't about the show, per se, but about the contents of the show. (That is, they did not ask on what soundstage it was filmed, but things like what is the number of the apartment, or what tagline did character X say repeatedly in a particular episode, that sort of thing) This was held to be copying many little fragments of the show itself, and thus infringing. And it wasn't held to be fair use.
But the act of memorizing it and then reciting it to large groups of people for pay probably is.
Memorizing a book is not infringing. Reciting to a large group of people -- by any means, whether from memory or not -- would be, if the book is copyrighted.
"Show business is just like high school, except you get paid." - Martin Mull