Mr. Wayner concedes that he is not a "practicing lawyer" and then proceeds to support his assertions based on several fundamental misconceptions and misunderstandings of copyright law. As a frame for his discussion, Mr. Wayner talks about the prohibitive cost that he would have incurred if he had tried to include licensed copies of photographs from the 1949 and 2012 Broadway productions of "Death of a Salesman" in his book Attention Must Be Paid, But For $800?
The headline in his piece caught my attention, because, if true, it signaled a new advance not only in jurisprudence, but also in the abilities of artificial intelligence. I had not been aware that algorithms were now authoring books! After digging further into the piece, I found that Wayner's definition of authorship was rather expansive:
Anyone who searches for “Death of a Salesman” gets search results with a nice sidebar filled with a few facts and some images that Google scraped from websites under fair use. In this way, they can do things that I, a lowly human, can’t do. And while I had to pay $10,000, they could “get” them for free.One could make the case that, in the act of assembling graphics and written materials together, the aggregator algorithm is, indeed, creating content. Such content is hardly the equivalent of a book, however. Further, the fair use defense to copyright infringement has some well-defined general categories, as established in 17 U.S.C. § 107:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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.Moreover, the fair use defense is not why these aggregators are free of liability. Copyright protects the tangible form in which a work is fixed, not the information contained in that form. The classic example of this is the phone book.
As decided in the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), the Supreme Court of the United States established that information alone without a minimum of original creativity cannot be protected by copyright. According to the facts on record in the case, Feist had copied information from Rural's telephone listings to include in its own, after Rural had refused to license the information. The Court rejected Rural's copyright infringement law suit and stated that information contained in Rural's phone directory was not copyrightable and that therefore no infringement existed.
This is the rule that search engines and other aggregators have relied upon for years in relieving them of liability for their search results. Although the information cited by Wayner is an example of integrating written and graphic search results, it cannot be said to be copying the original material and representing it as the work of the aggregator. No one who comes upon such a page as the result of an internet search looks to it as an original work of authorship.
Mr. Wayner seems to be aware of this hole in his argument, because he follows up his complaint with the following:
We already know these companies make a profit on the ads. But what we don’t know is that the algorithms they use are acting less and less like a card catalog for the web and more and more like an author. In other words, the machine isn’t just a dumb hunk of silicon: It’s a living creator. It’s less like a dull machine and more like a fully functional, content-producing Terminator.The fact that these companies derive commercial benefit from listing this information is not evidence of copyright infringement. It would be a stretch to argue that the ad revenue generated by these aggregations in some way affects potential market for or value of any underlying copyrighted works. To the contrary, one could more convincingly argue that a searcher would be more likely to seek out and/or purchase the underlying work once they were made aware of the work's existence!
To suggest that an algorithm that combines scraped materials in different and more engaging ways is an author still misses the point. In order for these companies to be at risk of copyright infringement, they would need to package the scraped material into a format that directly copied the original material. Aggregating bits and pieces from various sources is less fair use and more transformative use. Indeed, Wayner indicates that this is the basis upon which Buzzfeed stands in defending itself against copyright infringement accusations.
Having attempted to construct a problem out of a perceived inequity in the application of fair use, Mr. Wayner concludes by proposing the use of an algorithm to fight an algorithm.
This approach assumes that an algorithm can be sophisticated enough to determine what is fair use and what is excessive borrowing. Many years of jurisprudence have not been able to provide any bright line rules about when borrowing crosses over into infringement, and, without binary rules that establish what is and what is not infirnging, such an algorithm would be hopelessly inadequate, much as decades of pornography filters have been flummoxed in trying to determine what is or is not prurient.
While the questions posed by Mr. Wayner are pertinent to the threat posed by more and more creative AI systems, he has used a strawman as the basis for an inadequate solution to a currently nonexistent problem. Copyright law is not unequally applied between man and machines -- at least not yet!