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26 May 2023FeaturesCopyrightMarisa Woutersen

AI ingestion of IP is fair use, says ex-USCO counsel

The processing of copyrighted work by artificial intelligence (AI) when training models should be considered fair use, according to a former general counsel of the  US Copyright Office (USCO).

Sy Damle, now partner at Latham & Watkins, delivered this controversial viewpoint before the US Congress judiciary committee’s IP subcommittee on May 17, saying that such actions “will generally fall within the established bounds of fair use”.

In his speech, he said that while “outside of some unspecified cases of machine memorisation or close reproduction that might occasionally ‘go too far,’ the input side of ingestion and processing by generative AI is almost categorically privileged as ‘fair use’”.

Controversial views

The comments come amid heated debate prompted by the fast-paced development of generative AI, and whether its actions contravene IP rights.

AI developers Stability AI, Midjourney, and DeviantArt have hit back against the copyright infringement lawsuits filed against them, contending that their use of copyrighted material to train AI models can be deemed fair use.

According to US law, fair use permits limited use of copyrighted material without having to first acquire permission from the copyright owner.

Damle’s views chime with the opinion of Mark Lemley, professor of law at Stanford Law School.

In a co-authored paper, Fair Learning published in the Texas Law Review, he held that because AI training sets are likely to contain millions of different works with thousands of different owners, “there is no plausible way to simply license all of the underlying photographs, videos, audio files, or texts for the new use”.

No ‘categorical privilege’

However, another former USCO general counsel, Jon Baugmarten has strongly opposed such positions in a letter to the Congree IP subcommittee.

In the letter, he emphasised the need for a case-specific analysis of various factors in determining fair use, contrary to Damle’s assertion of a ‘categorical privilege’.

Baugmarten stated: “At best, the assertion is over-generalised, oversimplified and unduly conclusory.”

He also drew attention to the recent Supreme Court decision in the Warhol Foundation v Goldsmith  case, which highlighted the need for a detailed analysis of fair use considerations.

Baugmarten cautioned against overlooking the intricacies of fair use concerns, emphasising the need for a nuanced approach to the issue.

He then pointed to some copyright lawsuits that emerged after the introduction of photocopying in the 1960’s, which had unsuccessfully claimed fair use.

“Yet, after thorough fair use analysis in a number of leading cases of continuing precedential importance, those empathetic assertions of clarity and certainty were definitively proven to be wrong,” wrote Baugmarten.

‘Collective licensing’

Collective licensing regimes, he further argued, can in different ways reasonably account for “negotiating rates, adjusting projections of copying, defining scope of licence, providing or accepting exceptions or otherwise”.

Highlighting the advantages of such collective licensing, he said that this approach would help to avoid “the otherwise unavoidable risk of liability” and enable “cogent business planning as reproductive and other user technologies change format”.

These licensing models, he added, also facilitate “simple clearances, authorisations, or licences from innumerable, geographically dispersed authors and rights owners”.

Baugmarten urged Congress to consider the broader background surrounding collective licensing and emphasised its role in protecting copyrighted works.

The hearing that took place last week marks one of several attempts by the US Congress to grapple with the IP questions posed by AI.

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