Lead Article: The Fair Use Frontier: Copyright Law In The Age Of AI And Machine Learning

• Published date: 14 February 2024
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Law Firm: Quinn Emanuel Urquhart & Sullivan
• Author: Quinn Emanuel Urquhart & Sullivan

Introduction

2023 was the breakout year for generative artificial intelligence (AI). This branch of AI and machine learning uses generative models to create new content, such as text, images, music, or video. These models are trained on massive amounts of data to produce a neural network that encodes statistical information such as word frequencies, syntactic patterns, and thematic markers. Based on a user's prompt, the neural network can produce creative output based on the training data.

Generative AI has many applications, such as art, writing, design, healthcare, gaming, and marketing. But it has spurred just as many lawsuits. The growth of generative AI has been the source for myriad lawsuits claiming that the training process for generative models infringes copyrights in written and visual works. For example, on September 12, 2023, a class of author plaintiffs sued Meta Platforms for copyright infringement in the Northern District of California because Meta's 'LLaMA' (Large Language Model Meta AI) allegedly 'copied and ingested' plaintiffs' copyrighted protected works as part of its training. A class action was also brought against Stability AI in the same court for copyright infringement on January 13, 2023 because Stability AI allegedly infringed plaintiffs' copyrighted works in the process of training its generative AI model, Stable Diffusion.

It is anticipated that the doctrine of fair use will feature prominently in these lawsuits. Indeed, on August 30, 2023, the U.S. Copyright Office published a notice of inquiry and request for comments as part of its 'study of the copyright law and policy issues raised by artificial intelligence.' 88 Fed. Reg. 59942 (Aug. 30, 2023). The notice includes over 30 questions related to the topic of artificial intelligence, of which six are specifically on the doctrine of fair use. For example, the Copyright Office asks, 'Under what circumstances would the unauthorized use of copyrighted works to train AI models constitute fair use?' 88 Fed. Reg. 59942, 59946.

As we await legislative and legal guidance from the Copyright Office and courts on how fair use will be applied to generative AI, this article reviews the historical application of fair use by the courts in other cases of alleged copyright infringement involving novel technologies.

Fair Use Doctrine

The motivating purpose of copyright is 'to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' U.S. Constitution Article I, '8, cl. 8. The law of copyright aims to find a fair balance between the rights of creators and inventors to profit from and control their works and inventions, and the rights of society to access and use ideas, information, and commerce.

Fair use is an affirmative defense under the Copyright Act rooted in the dual purpose of copyright to motivate the creativity of authors and advance public welfare through access to expressive works. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (clarifying that 'fair use is an affirmative defense'). As stated succinctly by the Supreme Court, a person 'who makes a fair use of the work is not an infringer of the copyright with respect to such use.' Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984) (emphasis added).

Under the Copyright Act, certain uses of copyrighted works are classified as non-infringing fair use: criticism, commentary, news reporting, teaching, scholarship, and research. 17 U.S.C. ' 107 (2019). This list is non-exhaustive, however, and the Supreme Court has held that the doctrine 'permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.' Campbell, 510 U.S. at 577. Fair use therefore is not amenable to simplification with bright-line rules'rather, the doctrine calls for a case-by-case analysis enabled by four statutory factors:

1. the purpose and character of the use,
2. the nature of the copyrighted...