Category Archives: Blog

Some Initial Thoughts on the US Copyright Office Report on AI and Digital Replicas

Posted August 1, 2024

On July 31, 2024, the U.S. Copyright Office published Part 1 of its report summarizing the Office’s ongoing initiative of artificial intelligence. This first part of the report addresses digital replicas, in other words, how AI is used to realistically but falsely portray people in digital media. The Office in its report recommends new federal legislation that would create a new right to control “digital replicas” which it defines as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.”

We remain somewhat skeptical that such a right would do much to address the most troubling abuses such as deepfakes, revenge porn, and financial fraud. But, as the report points out, a growing number of varied state legislative efforts are already in the works, making a stronger case for unifying such rules at the federal level, with an opportunity to ensure adequate protections are in place for creators.

The backdrop for the inquiry and report is a fast-developing space of state-led legislation, including legislation with regard to deepfakes. Earlier this year, Tennessee became the first state to enact such a law, the ELVIS Act (TN HB 2091), while other states mostly focused on addressing deepfakes in the context of sexual acts and political campaigns. New state laws are continuing to be introduced, making it harder and harder to navigate the space for creators, AI companies, and consumers alike. A federal right of publicity in the context of AI has already been discussed in Congress, and just yesterday a new bill was formally introduced, titled the “NO AI Fakes Act.”

Authors Alliance has watched the development of this US Copyright Office initiative closely. In August 2023, the Office issued a notice of inquiry, asking stakeholders to weigh in on a series of questions about copyright policy and generative AI. Our comment in response to the inquiry was devoted in large part to sharing the ways that authors are using generative AI, how fair use should apply to training AI, and that the USCO should be cautious in recommending new legislation to Congress.

This report and recommendation from the Copyright Office could have a meaningful impact on authors and other creators, including both those whose personality and images are subject to use with AI systems, and those who are actively using AI in the writing and research. Below are our preliminary thoughts on what the Copyright Office recommends, which it summarizes in the report as follows:

“We recommend that Congress establish a federal right that protects all individuals during their lifetimes from the knowing distribution of unauthorized digital replicas. The right should be licensable, subject to guardrails, but not assignable, with effective remedies including monetary damages and injunctive relief. Traditional rules of secondary liability should apply, but with an appropriately conditioned safe harbor for OSPs. The law should contain explicit First Amendment accommodations. Finally, in recognition of well-developed state rights of publicity, we recommend against full preemption of state laws.”

Initial Impressions

Overall, this seems like a well-researched and thoughtful report, given that the Office had to navigate a huge number of comments and opinions (over 10,000 comments were submitted). The report also incorporates the many more recent developments that included numerous new state laws and federal legislative proposals.

Things we like:

In the context of an increasing number of state legislative efforts—some overbroad and more likely than not to harm creators than help them—we appreciate the Office’s recognition that a patchwork of laws can pose a real problem for users and creators who are trying to understand their legal obligations when using AI that references and implicates real people.

The report also recognizes that the collection of concerns motivating digital replica laws—things like control of personality, privacy, fraud, and deception—are not at their core copyright concerns. “Copyright and digital replica rights serve different policy goals; they should not be conflated.” This matters a lot for what the scope of protection and other details for a digital replica right looks like. Copy-pasting copyright’s life+70 term of protection, for example, makes little sense (and the Office recognizes this, for example, by rejecting the idea of posthumous digital replica rights).

The Office also suggests limiting the transferability of rights. We think this is a good idea to protect individuals from unanticipated downstream use by companies that may persuade individuals to sign deals that would lock them into unfavorable long-term deals. “Unlike publicity rights, privacy rights, almost without exception, are waivable or licensable, but cannot be assigned outright. Accordingly, we recommend a ban on outright assignments, and the inclusion of appropriate guardrails for licensing, such as limitations in duration and protection for minors.”

The Office explicitly rejects the idea of a new digital replica right covering “artistic style.” We agree that protection of artistic style is a bad idea. Creators of all types have always used existing styles and methods as a baseline to build upon, and it’s resulted in a rich body of new works. Allowing for control over “style” however well-defined, would impinge on these new creations. Strong federal protection over “style” would also contradict traditional limitations on rights, such as Section 102(b)’s limits on copyrightable subject matter and the idea/expression dichotomy, which are rooted in the Constitution.

Some concerns:

The Office’s proposal would apply to the distribution of digital replicas, which are defined as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.” This definition is quite broad and could potentially include a large number of relatively common and mostly innocuous uses—e.g., taking a photo with your phone of a person and applying a standard filter on your camera app could conceivably fall within the definition.

First Amendment rights to free expression are critical for protecting uses for news reporting, artistic uses, parody and so on. Expressive uses of digital replicas—e.g., a documentary that uses AI to replicate a recent event involving recognizable people, or reproduction in a comedy show to to poke fun at politicians—could be significantly hindered by an expansive digital replica right unless it has robust free expression protections. Of course, the First Amendment applies regardless of the passing of a new law, but it will be important for any proposed legislation to find ways to allow people to exercise those rights effectively. As the report explains, comments were split. Some like the Motion Picture Association proposed enumerated exceptions for expressive use, while others such as the Recording Industry Association of America took the position that “categorical exclusions for certain speech-oriented uses are not constitutionally required and, in fact, risk overprotection of speech interests at the expense of important publicity interests.”

We tend to think that most laws should skew toward “overprotection of speech interests,” but the devil is in the details on how to do so. The report leaves much to be desired on how to do this effectively in the context of digital replicas. For its part, “[t]he Office stresses the importance of explicitly addressing First Amendment concerns. While acknowledging the benefits of predictability, we believe that in light of the unique and evolving nature of the threat to an individual’s identity and reputation, a balancing framework is preferable.” One thing to watch in future proposals is what such a balancing framework actually includes, and how easy or difficult it is to assert protection of First Amendment rights under this balancing framework.

The Office rejects the idea that Section 230 should provide protection for online service providers if they host content that runs afoul of the proposed new digital replica rights. Instead, the Office suggests something like a modified version of the Copyright Act’s DMCA section 512 notice and takedown process. This isn’t entirely outlandish—the DMCA process mostly works, and if this new proposed digital replica right is to be effective in practice, asking large service providers that are benefiting from hosting content to be responsive in cases of alleged infringing content may make sense. But, the Office says that it doesn’t believe the existing DMCA process should be the model, and points to its own Section 512 report for how a revised version for digital replicas might work. If the Office’s 512 study is a guide to what a notice-and-takedown system could look like for digital replicas, there is reason to be concerned. While the study rejected some of the worst ideas for changing the existing system (e.g., a notice-and-staydown regime), it also repeatedly diminished the importance of ideas that would help protect creators with real First Amendment and fair use interests.

The motivations for the proposed digital replica right are quite varied. For some commenters, it’s an objection to the commercial exploitation of public figures’ images or voices. For others, the need is to protect against invasions of privacy. For yet others, it is to prevent consumer confusion and fraud. The Office acknowledges these different motivating factors in its report and in its recommendations attempts to balance competing interests among them. But, there are still real areas of discontinuity—e.g., the basic structure of the right the Office proposes is intellectual-property-like. But it doesn’t really make a lot of sense to try to address some of the most pernicious fraudulent uses, such as deepfakes to manipulate public opinion, revenge porn, or scam phone calls, with a privately enforced property right oriented toward commercialization. Discovering and stopping those uses requires a very different approach and one that this particular proposal seems ill-equipped to deal with.

Barely a few months ago, we were extremely skeptical that new federal legislation on digital replicas was a good idea. We’re still not entirely convinced, but the rash of new and proposed state laws does give us some pause. While the federal legislative process is fraught, it is also far from ideal for authors and creators to operate under a patchwork of varying state laws, especially those that provide little protection for expressive uses. Overall, we hope certain aspects of this report can positively influence the debate about existing federal proposals in Congress, but remain concerned about the lack of detail about protections for First Amendment rights.

In the meantime, you can check out our two new resource pages on Generative AI and Personality Rights to get a better understanding of the issues.

What happens when your publisher licenses your work for AI training?

Posted July 30, 2024

Over the last year, we’ve seen a number of major deals inked between companies like OpenAI and news publishers. In July 2023, OpenAI entered into a two-year deal with The Associated Press for ChatGPT to ingest the publisher’s news stories. In December 2023, Open AI announced its first non-US partnership to train ChatGPT on German publisher Axel Springer’s content, including Business Insider. This was then followed by a similar deal in March 2024 with Le Monde and Prisa Media, news publishers from France and Spain. These partnerships are likely sought in an effort to avoid litigation like the case OpenAI and Microsoft are currently defending from the New York Times.

As it turns out, such deals are not limited to OpenAI or newsrooms. Book publishers have also gotten into the mix. Numerous reports recently pointed out that based on Taylor and Francis’s parent company’s market update, the British academic publishing giant has agreed to a $10 million USD AI training deal with Microsoft. Earlier this year, another major academic publisher, John Wiley and Sons, recorded $23 million in one-time revenue from a similar deal with a non-disclosed tech company. Meta even considered buying Simon & Schuster or paying $10 per book to acquire its rights portfolio for AI training.

With few exceptions (a notable one being Cambridge University Press), publishers have not bothered to ask their authors whether they approve of these agreements.

Does AI training require licensing to begin with?

First, it’s worth appreciating that these deals are made in the backdrop of some legal uncertainty. There are more than two dozen AI copyright lawsuits just in the United States, most of them turning on one key question: whether AI developers should have to obtain permission to scrap content to train AI models or whether fair use already allows this kind of training use even without permission.

The arguments for and against fair use for AI training data are well explained elsewhere. We think there are strong arguments, based on cases like Authors Guild v. Google, Authors Guild v. HathiTrust, and AV ex rel Vanderhye v. iParadigms, that the courts will conclude that copying to training AI models is fair use. We also think there are really good policy reasons to think this could be a good outcome if we want to encourage future AI development that isn’t dominated by only the biggest tech giants and that results in systems that produce less biased outputs. But we won’t know for sure whether fair use covers any and all AI training until some of these cases are resolved.

Even if you are firmly convinced that fair use protects this kind of use (and AI model developers have strong incentives to hold this belief), there are lots of other reasons why AI developers might seek licenses in order to navigate around the issue. This includes very practical reasons, like securing access to content in formats that make training easier, or content accompanied by structured, enhanced metadata. Given the pending litigation, licenses are also a good way to avoid costly litigation (copyright lawsuits are expensive, even if you win).

Although one can hardly blame these tech companies for making a smart business decision to avoid potential litigation, this could have a larger systematic impact on other players in the field, including the academic researchers who would like to rely on fair use to train AI. As IP scholar James Gibson explains, when risk-averse users create new licensing markets in gray areas of copyright law, copyright holders’ exclusive rights expands, and public interest diminishes. The less we rely on fair use, the weaker it becomes.

Finally, it’s worth noting that fair use is only available in the US and a few other jurisdictions. In other jurisdictions, such as within the EU, using copyrighted materials for AI training (especially for commercial purposes) may require a license.

To sum up: even though it may not be legally necessary to acquire copyright licenses for AI training, it seems that licensing deals between publishers and AI companies are highly likely to continue.

So, can publishers just do this without asking authors?

In a lot of cases, yes, publishers can license AI training rights without asking authors first. Many publishing contracts include a full and broad grant of rights–sometimes even a full transfer of copyright to the publisher for them to exploit those rights and to license the rights to third parties. For example, this typical academic publishing agreement provides that “The undersigned authors transfer all copyright ownership in and relating to the Work, in all forms and media, to the Proprietor in the event that the Work is published.” In such cases, when the publisher becomes the de facto copyright holder of a work, it’s difficult for authors to stake a copyright claim when their works are being sold to train AI.

Not all publishing contracts are so broad, however. For example, in the Model Publishing Contract for Digital Scholarship (which we have endorsed), the publisher’s sublicensing rights are limited and specifically defined, and profits resulting from any exploitation of a work must be shared with authors.

There are lots of variations, and specific terms matter. Some publisher agreements are far more limited–transferring only limited publishing and subsidiary rights. These limitations in the past have prompted litigation over whether the publisher or the author gets to control rights for new technological uses. Results have been highly dependent on the specific contract language used.

There are also instances where publishers aren’t even sure of what they own. For example, in the drawn-out copyright lawsuit brought by Cambridge University Press, Oxford University Press and Sage against Georgia State University, the court dropped 16 of the alleged 74 claimed instances of infringement because the publishers couldn’t produce documentation that they actually owned rights in the works they were suing over. This same lack of clarity contributed to the litigation and proposed settlement in the Google Books case, which is probably our closest analogy in terms of mass digitization and reuse of books (for a good discussion of these issues, see page 479 of this law review article by Pamela Samuelson about the Google Books settlement).

This is further complicated by the fact that authors sometimes are entitled to reclaim their rights, such as by rights reversion clause and copyright termination. Just because a publisher can produce the documentation of a copyright assignment, does not necessarily mean that the publisher is still the current copyright holder of a work.

We think it is certainly reasonable to be skeptical about the validity of blanket licensing schemes between large corporate rights holders and AI companies, at least when they are done at very large scale. Even though in some instances publishers do hold rights to license AI training, it is dubious whether they actually hold, and sufficiently document, all of the purported rights of all works being licensed for AI training.

Can authors at least insist on a cut of the profit?

It can feel pretty bad to discover that massively profitable publishers are raking in yet more money by selling licensing rights to your work, while you’re cut out of the picture. If they’re making money, why not the author?

It’s worth pointing out that, at least for academic authors, this isn’t exactly a novel situation–most academic authors make very little in royalties on their books, and nothing at all on their articles, while commercial publishers like Elsevier, Wiley, and SpringerNature sell subscription access at a healthy profit. Unless you have retained sublicensing rights, or your publishing contract has a profit-sharing clause, authors, unfortunately, are not likely to profit from the budding licensing market for AI training.

So what are authors to do?

We could probably start most posts like this with a big red banner that says “READ YOUR PUBLISHING CONTRACT!! (and negotiate it too)” Be on the lookout for what you are authorizing your publisher to do with your rights, and any language in it about reuse or the sublicensing of subsidiary rights.

You might also want to look for terms in your contract that speak to royalties and shares of licensing revenue. Some contracts have language that will allow you to demand an accounting of royalties; this may be an effective means of learning more about licensing deals associated with your work.

You can also take a closer look at clauses that allow you to revert rights–many contracts will include a clause under which authors can regain rights when their book falls below a certain sales threshold or otherwise becomes “out of print.” Even without such clauses, it is reasonable for authors to negotiate a reversion of rights when their books are no longer generating revenue. Our resources on reversion will give you a more in-depth look at this issue.

Finally, you can voice your support for fair use in the context of licensing copyrighted works for AI training. We think fair use is especially important to preserve for non-commercial uses. For example, academic uses could be substantially stifled if paid-for licensing for permission to engage in AI research or related uses becomes the norm. And in those cases, the windfall publishers hope to pocket isn’t coming from some tech giant, but ultimately is at the expense of researchers, their libraries and universities, and the public funding that goes to support them.

Introducing Yuanxiao Xu, Authors Alliance’s New Staff Attorney

Posted July 23, 2024

Yuanxiao Xu, Authors Alliance Staff Attorney

By Dave Hansen

Today I’m pleased to introduce to the Authors Alliance community Yuanxiao Xu, who will be taking on the role of Authors Alliance’s Staff Attorney.

Over the past few years, Authors Alliance has been more active than ever before advocating for the interests of authors before courts and administrative agencies. Our involvement has ranged from advocacy in high-profile cases such as Warhol Foundation v. Goldsmith and Hachette Books v. Internet Archive to less visible but important regulatory filings. For example, last December we filed a comment explaining the importance of federal agencies having the legal tools to promote open access to scholarly research outputs funded through grants. On top of those advocacy efforts, we remain committed to helping authors navigate the law through our legal guides and other educational resources. The most recent significant addition is our practical guide titled Writing about Real People.

Our advocacy and educational work requires substantial legal, copyright, and publishing expertise. We’re therefore very fortunate to welcome Yuanxiao to the team to support our efforts. Yuanxiao joins us from previous legal roles with Creative Commons, the Dramatists Guild of America, and the University of Michigan Libraries. She has substantial experience advising academic authors and other creators on issues related to plagiarism, copyright infringement, fair use, licensing, and music copyright. She received her JD from the University of Michigan and is licensed to practice law in the State of New York.

As we grapple with difficult issues such as AI and authorship, ongoing publishing industry consolidation, and attacks on the integrity of institutions like libraries, I’m very excited to work with Yuanxiao to further develop and implement our legal strategy in a way that supports authors who care deeply about the public interest.

“I’m thrilled to join Authors Alliance to collaborate with our community and sister organizations and together advocate for a better copyright ecosystem for authors and creatives. I hope to strive for a future where the interests of creators and the public do not take a back seat to the profit-maximizing agenda of big entertainment companies and tech giants,” says Yuanxiao.

We’re always pleased to hear from our members about ways that we might be able to help support their efforts to reach readers and have their voice heard. If you’d like to get in touch with Yuanxiao directly, you can reach her at xu@authorsalliance.org.

Seeking Authors & Books to Feature in Our Book Talk Series with Internet Archive

Posted July 18, 2024

Authors and Publishers: We are looking for books (both new & classic titles) to feature in our popular book talk series.

Starting in 2023, Authors Alliance and Internet Archive have partnered on a series of virtual book talks highlighting issues of importance to the library and information communities. Last year, more than 2,000 people attended our virtual and in-person talks. You can watch those talks now at https://archive.org/details/booktalks.

Themes

We are particularly interested in highlighting books that touch on one (or more!) of the following themes:

Libraries & Literacy
Book Culture & the History of the Book
Internet Policy
Copyright & Intellectual Property Rights
Artificial Intelligence & its impact
Computing & Internet History
Supporting Democracies

Contact

If you are an author or publisher with a book (either new or backlist) that would be a good fit for our series, please reach out to Chris Freeland, director of library services at Internet Archive, at chrisfreeland@archive.org today!

Introducing the Authors Alliance’s First Zine: Can Authors Address AI Bias?

Posted May 31, 2024

This guest post was jointly authored by Mariah Johnson and Marcus Liou, student attorneys in Georgetown’s Intellectual Property and Information Policy (iPIP) Clinic.

Generative AI (GenAI) systems perpetuate biases, and authors can have a potent role in mitigating such biases.

But GenAI is generating controversy among authors. Can authors do anything to ensure that these systems promote progress rather than prevent it? Authors Alliance believes the answer is yes, and we worked with them to launch a new zine, Putting the AI in Fair Use: Authors’ Abilities to Promote Progress, that demonstrates how authors can share their works broadly to shape better AI systems. Drawing together Authors Alliance’s past blog posts and advocacy discussing GenAI, copyright law, and authors, this zine emphasizes how authors can help prevent AI bias and protect “the widest possible access to information of all kinds.”

As former Copyright Register Barbara Ringer articulated, protecting that access requires striking a balance with “induc[cing] authors and artists to create and disseminate original works, and to reward them for their contributions to society.” The fair use doctrine is often invoked to do that work. Fair use is a multi-factor standard that allows limited use of copyrighted material—even without authors’ credit, consent, or compensation–that asks courts to examine:

(1) the purpose and character of the use,

(2) the nature of the copyrighted work,

(3) the amount or substantiality of the portion used, and

(4) the effect of the use on the potential market for or value of the work.

While courts have not decided whether using copyrighted works as training data for GenAI is fair use, past fair use decisions involving algorithms, such as Perfect 10, iParadigms, Google Books, and HathiTrust favored the consentless use of other people’s copyrighted works to create novel computational systems. In those cases, judges repeatedly found that algorithmic technologies aligned with the Constitutional justification for copyright law: promoting progress.

But some GenAI outputs prevent progress by projecting biases. GenAI outputs are biased in part because they use biased, low friction data (BLFD) as training data, like content scraped from the public internet. Examples of BLFD include Creative Commons (CC) licensed works, like Wikipedia, and works in the public domain. While Wikipedia is used as training data in most AI systems, its articles are overwhelmingly written by men–and that bias is reflected in shorter and fewer articles about women. And because the public domain cuts off in the mid-1920s, those works often reflect the harmful gender and racial biases of that time. However, if authors allow their copyrighted works to be used as GenAI training data, those authors can help mitigate some of the biases embedded in BLFD.

Current biases in GenAI are disturbing. As we discuss in our zine, word2vec is a very popular toolkit used to help machine learning (ML) models recognize relationships between words–like women as homemakers and Black men with the word “assaulted.” Similarly, OpenAI’s GenAI chatbox ChatGPT, when asked to generate letters of recommendation, used “expert,” “reputable,” and “authentic” to describe men and “beauty,” “stunning,” and “emotional” for women, discounting women’s competency and reinforcing harmful stereotypes about working women. An intersectional perspective can help authors see the compounding impact of these harms. What began as a legal framework to describe why discrimination law did not adequately address harms facing Black women, it is now used as a wider lens to consider how marginalization affects all people with multiple identities. Coined by Professor Kimberlé Crenshaw in the late 1980s, intersectionality uses critical theory like Critical Race Theory, feminism, and working-class studies together as “a lens . . . for seeing the way in which various forms of inequality often operate together and exacerbate each other.” Contemporary authors’ copyrighted works often reflect the richness of intersectional perspectives, and using those works as training data can help mitigate GenAI bias against marginalized people by introducing diverse narratives and inclusive language. Not always–even recent works reflect bias–but more often than might be possible currently.

Which brings us back to fair use. Some corporations may rely on the doctrine to include more works by or about marginalized people in an attempt to mitigate GenAI bias. Professor Mark Lemley and Bryan Casey have suggested “[t]he solution [to facial recognition bias] is to build bigger databases overall or to ‘oversample’ members of smaller groups” because “simply restricting access to more data is not a viable solution.” Similarly, Professor Matthew Sag notes that “[r]estricting the training data for LLMs to public domain and open license material would tend to encode the perspectives, interests, and biases of a distinctly unrepresentative set of authors.” However, many marginalized people may wish to be excluded from these databases rather than have their works or stories become grist for the mill. As Dr. Anna Lauren Hoffman warns, “[I]nclusion reinforces the structural sources of violence it supposedly addresses.”

Legally, if not ethically, fair use may moot the point. The doctrine is flexible, fact-dependent, and fraught. It’s also fairly predictable, which is why legal precedent and empirical work have led many legal scholars to believe that using copyrighted works as training data to debias AI will be fair use–even if that has some public harms. Back in 2017, Professor Ben Sobel concluded that “[i]f engineers made unauthorized use of copyrighted data for the sole purpose of debiasing an expressive program, . . . fair use would excuse it.” Professor Amanda Levendowski has explained why and how “[f]air use can, quite literally, promote creation of fairer AI systems.” More recently, Dr. Mehtab Khan and Dr. Alex Hanna observed that “[a]ccessing copyright work may also be necessary for the purpose of auditing, testing, and mitigating bias in datasets . . . [and] it may be useful to rely on the flexibility of fair use, and support access for researchers and auditors.”

No matter how you feel about it, fair use is not the end of the story. It is ill-equipped to solve the troubling growth of AI-powered deepfakes. After being targeted by sexualized deepfakes, Rep. Ocasio-Cortez described “[d]eepfakes [as] absolutely a way of digitizing violent humiliation against other people.” Fair use will not solve the intersectional harms of AI-powered face surveillance either. Dr. Joy Buolamwini and Dr. Timnit Gebru evaluated leading gender classifiers used to train face surveillance technologies and discovered that they more accurately classified males over females and lighter-skinned over darker-skinned people. The researchers also discovered that the “classifiers performed worst on darker female subjects.” While legal scholars like Professors Shyamkrishna Balganesh, Margaret Chon, and Cathay Smith argue that copyright law can protect privacy interests, like the ones threatened by deepfakes or face surveillance, federal privacy laws are a more permanent, comprehensive way to address these problems.

But who has time to wait on courts and Congress? Right now, authors can take proactive steps to ensure that their works promote progress rather than prevent it. Check out the Authors Alliance’s guides to Contract Negotiations, Open Access, Rights Reversion, and Termination of Transfer to learn how–or explore our new zine, Putting the AI in Fair Use: Authors’ Abilities to Promote Progress.

You can find a PDF of the Zine here, as well as printer-ready copies here and here.

Books are Big AI’s Achilles Heel

Posted May 13, 2024

By Dave Hansen and Dan Cohen

Image of the Rijksmuseum by Michael D Beckwith. Image dedicated to the Public Domain.

Rapidly advancing artificial intelligence is remaking how we work and live, a revolution that will affect us all. While AI’s impact continues to expand, the operation and benefits of the technology are increasingly concentrated in a small number of gigantic corporations, including OpenAI, Google, Meta, Amazon, and Microsoft.

Challenging this emerging AI oligopoly seems daunting. The latest AI models now cost billions of dollars, beyond the budgets of startups and even elite research universities, which have often generated the new ideas and innovations that advance the state of the art.

But universities have a secret weapon that might level the AI playing field: their libraries. Computing power may be one important part of AI, but the other key ingredient is training data. Immense scale is essential for this data—but so is its quality.

Given their voracious appetite for text to feed their large language models, leading AI companies have taken all the words they can find, including from online forums, YouTube subtitles, and Google Docs. This is not exactly “the best that has been thought and said,” to use Matthew Arnold’s pointed phrase. In Big AI’s haphazard quest for quantity, quality has taken a back seat. The frequency of “hallucinations”—inaccuracies currently endemic to AI outputs—are cause for even greater concern.

The obvious way to rectify this lack of quality and tenuous relationship to the truth is by ingesting books. Since the advent of the printing press, authors have published well over 100 million books. These volumes, preserved for generations on the shelves of libraries, are perhaps the most sophisticated reflection of human thinking from the beginning of recorded history, holding within them some of our greatest (and worst) ideas. On average, they have exceptional editorial quality compared to other texts, capture a breadth and diversity of content, a vivid mix of styles, and use long-form narrative to communicate nuanced arguments and concepts.

The major AI vendors have sought to tap into this wellspring of human intelligence to power the artificial, although often through questionable methods. Some companies have turned to an infamous set of thousands of books, apparently retrieved from pirate websites without permission, called “Books3.” They have also sought licenses directly from publishers, using their massive budgets to buy what they cannot scavenge. Meta even considered purchasing one of the largest publishers in the world, Simon & Schuster.

As the bedrock of our shared culture, and as the possible foundation for better artificial intelligence, books are too important to flow through these compromised or expensive channels. What if there were a library-managed collection made available to a wide array of AI researchers, including at colleges and universities, nonprofit research institutions, and small companies as well as large ones?

Such vast collections of digitized books exist right now. Google, by pouring millions of dollars into its long-running book scanning project, has access to over 40 million books, a valuable asset they undoubtedly would like to keep exclusive. Fortunately, those digitized books are also held by Google’s partner libraries. Research libraries and other nonprofits have additional stockpiles of digitized books from their own scanning operations, derived from books in their own collections. Together, they represent a formidable aggregation of texts.

A library-led training data set of books would diversify and strengthen the development of AI. Digitized research libraries are more than large enough, and of substantially higher quality, to offer a compelling alternative to existing scattershot data sets. These institutions and initiatives have already worked through many of the most challenging copyright issues, at least for how fair use applies to nonprofit research uses such as computational analysis. Whether fair use also applies to commercial AI, or models built from iffy sources like Books3, remains to be seen.

Library-held digital texts come from lawfully acquired books—an investment of billions of dollars, it should be noted, just like those big data centers—and libraries are innately respectful of the interests of authors and rightsholders by accounting for concerns about consent, credit, and compensation. Furthermore, they have a public-interest disposition that can take into account the particular social and ethical challenges of AI development. A library consortium could distinguish between the different needs and responsibilities of academic researchers, small market entrants, and large commercial actors.

If we don’t look to libraries to guide the training of AI on the profound content of books, we will see a reinforcement of the same oligopolies that rule today’s tech sector. Only the largest, most well-resourced companies will acquire these valuable texts, driving further concentration in the industry. Others will be prevented from creating imaginative new forms of AI based on the best that has been thought and said. As they have always done, by democratizing access libraries can support learning and research for all, ensuring that AI becomes the product of the many rather than the few.

Further reading on this topic: “Towards a Books Data Commons for AI Training,” by Paul Keller, Betsy Masiello, Derek Slater, and Alek Tarkowski.

This week, Authors Alliance celebrates its 10th anniversary with an event in San Francisco on May 17 (We still have space! Register for free here) titled “Authorship in an Age of Monopoly and Moral Panics,” where we will highlight obstacles and opportunities of new technology. This piece is part of a series leading up to the event.

Authors Alliance Submits Amicus Brief in Tiger King Fair Use Case

Posted May 6, 2024

By Dave Hansen

Have you ever used a photograph to illustrate a historical event in your writing? Or quoted, say from a letter, to point out some fact that the author conveyed in their writing? According to the 10th Circuit, these aren’t the kinds of uses that fair use supports.

On Thursday, Authors Alliance joined with EFF, the Association of Research Libraries, the American Library Association, and Public Knowlege in filing an amicus brief asking the 10th Circuit Court of Appeals to reconsider its recent fair use decision in Whyte Monkee v. Netflix.

The case is about Netflix’s use of a funeral video recording in its documentary series Tiger King, a true crime documentary about Joseph Maldanado, aka Joe Exotic, an excentric zookeeper, media personality, exotic animal owner, and convicted felon. The recording at issue was created by Timothy Sepi/Whyte Monkee, as a memorial for Travis Maldonado, Joe Exotic’s late husband. Netflix used about 60 seconds of the funeral video in its show. Its purpose was, among other things, to “illustrate Mr. Exotic’s purported megalomania, even in the face of tragedy.”

A three-judge panel of the 10th Circuit issued its opinion in late March, concluding that Netflix’s use was not “transformative” under the first fair use factor and therefore disfavored as a fair use. The panel relied heavily on the Supreme Court’s recent decision in Andy Warhol v. Goldsmith, taking that case to mean that uses that do not comment or criticize the artistic and creative aspects of the underlying work are generally disfavored. So, the court concluded:

Defendants’ use of the Funeral Video is not transformative under the first fair use factor. Here, Defendants did not comment on or “target” Mr. Sepi’s work at all; instead, Defendants used the Funeral Video to comment on Joe Exotic. More specifically, Defendants used the Funeral Video to illustrate Mr. Exotic’s purported megalomania, even in the face of tragedy. By doing so, Defendants were providing a historical reference point in Mr. Exotic’s life and commenting on Mr. Exotic’s showmanship. However, Defendants’ use did not comment on Mr. Sepi’s video—i.e., its creative decisions or its intended meaning.

You can probably see the problem. Fair use has, for a very long time, supported a wide variety of other uses that incorporate existing works as historical reference points and illustrations. Although the Supreme Court talked a lot about criticism and comment in its Warhol opinion (which made sense, given that the use before it was a purported artistic commentary), I think very few people interpreted that decision to mean that only commentary and criticism are permissible transformative fair uses. But as our brief points out, the panel’s decision essentially converts the Supreme Court’s decision in Warhol from a nuanced reaffirmation of fair use precedent into a radical rewrite of the law that only supports those kinds of uses.

Our brief argues that the 10th Circuit misread the Supreme Court’s opinion in Warhol, and that it ignored decades of fair use case law. We point to a few good examples – e.g., Time v. Bernard Geis (a 1968 case finding fair use of a recreation of the famous Zapruder film in a book titled “Six Seconds in Dallas,” analyzing President Kennedy’s assassination), New Era Publications v. Carol Publishing (a 1990 case supporting reuse of lengthy quotations of L Ron Hubbard in a book about him, to make a point about Hubbard’s “hypocrisy and pomposity”) and Bill Graham Archives v. Dorling Kindersley (a 2006 case finding fair use of Grateful Dead concert posters in a book using them as historical reference points).

Our brief also highlights how communities of practice such as documentary filmmakers, journalists, and nonfiction writers have come to rely on fair use to support these types of uses–so much so that these practices are codified in best practices here, here, and even here Authors Alliance’s own Fair Use for Nonfiction Authors guide.

Although it is rare for appellate courts to grant rehearing of already issued opinions, this opinion has drawn quite a lot of negative attention. In addition to our amicus brief, there were amicus briefs filed in support of rehearing from:

Given the broad and negative reach of this decision, I hope the 10th Circuit will pay attention and grant the request.

Book Talk – Unlocking the Digital Age: The Musician’s Guide to Research, Copyright & Publishing

Posted March 27, 2024

Join us for a book talk with ANDREA I. COPLAND & KATHLEEN DeLAURENTI about UNLOCKING THE DIGITAL AGE, a crucial resource for early career musicians navigating the complexities of the digital era.

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“[Musicians,] Use this book as a tool to enhance your understanding, protect your creations, and confidently step into the world of digital music. Embrace the journey with the same fervor you bring to your music and let this guide be a catalyst in shaping a fulfilling and sustainable musical career.”
– Dean Fred Bronstein, THE PEABODY INSTITUTE OF THE JOHNS HOPKINS UNIVERSITY

Based on coursework developed at the Peabody Conservatory, Unlocking the Digital Age: The Musician’s Guide to Research, Copyright, and Publishing by Andrea I. Copland and Kathleen DeLaurenti [READ NOW] serves as a crucial resource for early career musicians navigating the complexities of the digital era. This guide bridges the gap between creative practice and scholarly research, empowering musicians to confidently share and protect their work as they expand their performing lives beyond the concert stage as citizen artists. It offers a plain language resource that helps early career musicians see where creative practice and creative research intersect and how to traverse information systems to share their work. As professional musicians and researchers, the authors’ experiences on stage and in academia makes this guide an indispensable tool for musicians aiming to thrive in the digital landscape.

Copland and DeLaurenti will be in conversation with musician and educator, Kyoko Kitamura. Music librarian Matthew Vest will facilitate our discussion.

Unlocking the Digital Age: The Musician’s Guide to Research, Copyright, and Publishing is available to read & download.

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About our speakers

ANDREA I. COPLAND is an oboist, music historian, and librarian based in Baltimore, MD. Andrea has dual master’s of music degrees in oboe performance and music history from the Peabody Institute of the Johns Hopkins University and is currently Research Coordinator at the Répertoire International de la Presse Musicale (RIPM) database. She is also a teaching artist with the Baltimore Symphony Orchestra’s OrchKids program and writes a public musicology blog, Outward Sound, on substack.

KATHLEEN DeLAURENTI is the Director of the Arthur Friedheim Library at the Peabody Institute of The Johns Hopkins University where she also teaches Foundations of Music Research in the graduate program. Previously, she served as scholarly communication librarian at the College of William and Mary where she participated in establishing state-wide open educational resources (OER) initiatives. She is co-chair of the Music Library Association (MLA) Legislation Committee as well as a member of the Copyright Education sub-committee of the American Library Association (ALA) and is past winner of the ALA Robert Oakley Memorial Scholarship for copyright research. DeLaurenti is passionate about copyright education, especially for musicians. She is active in communities of practice working on music copyright education, sustainable economic models for artists and musicians, and policy for a balanced copyright system. DeLaurenti served as the inaugural Open Access Editor of MLA and continues to serve on the MLA Open Access Editorial Board. She holds an MLIS from the University of Washington and a BFA in vocal performance from Carnegie Mellon University.

KYOKO KITAMURA is a Brookyn-based vocal improviser, bandleader, composer and educator, currently co-leading the quartet Geometry (with cornetist Taylor Ho Bynum, guitarist Joe Morris and cellist Tomeka Reid) and the trio Siren Xypher (with violist Melanie Dyer and pianist Mara Rosenbloom). A long-time collaborator of legendary composer Anthony Braxton, Kitamura appears on many of his releases and is the creator of the acclaimed 2023 documentary Introduction to Syntactical Ghost Trance Music which DownBeat Magazine calls “an invaluable resource for Braxton-philes.” Active in interdisciplinary performances, Kitamura recently provided vocals for, and appeared in, artist Matthew Barney’s 2023 five-channel installation Secondary.

MATTHEW VEST is the Music Inquiry and Research Librarian at UCLA. His research interests include change leadership in higher education, digital projects and publishing for music and the humanities, and composers working at the margins of the second Viennese School. He has also worked in the music libraries at the University of Virginia, Davidson College, and Indiana University and is the Open Access Editor for the Music Library Association.

Book Talk: UNLOCKING THE DIGITAL AGE
April 3 @ 10am PT / 1pm ET
VIRTUAL
Register now!

Announcing Departure of Rachel Brooke, Authors Alliance Senior Staff Attorney

Posted March 18, 2024

Dear Authors Alliance Members, Friends, and Allies,

It is with a heavy heart that I am announcing my departure from Authors Alliance. For me, the development is bittersweet—in a few weeks, I will be starting a new job at a law firm where I’ll focus on litigation and developing my advocacy skills in a new way. I’m excited for this next chapter, but I’ll sorely miss being an Authors Alliance staff member and working to advance the interests of our members, a dedicated and engaged community of authors who care deeply about access to knowledge and culture.

My time at Authors Alliance has seen a lot of change, both on an organizational level and in terms of the world around us. I joined as a staff attorney in late 2020, during a stormy political season and in the midst of a public health crisis. Working with former executive director, Brianna Schofield, I got to know this community and began to understand what mattered to you. I wrote one of our guides, Third-Party Permissions and How to Clear Them, drawing on my past experience working as a literary agent in addition to what I had learned about copyright law and the particular needs of our members. I also spent nine months as our interim executive director before Dave joined us back in 2022. Along the way, with the blessing and guidance of our outstanding board of directors, Authors Alliance began to focus more on policy and scale back our education work. Back in 2014, there was a dearth of these kinds of educational resources for authors, but that has changed over time, particularly with the increasing presence of scholarly communications offices to guide academic scholars.

This week is my last as an employee of Authors Alliance, and next week will be my first as a regular member. During my years with Authors Alliance, I’ve been asked a lot of times “who can join” and whether a person “qualified” as an author. Unlike other authors’ organizations, we don’t gatekeep when it comes to membership. If you—like me—write, for business or for pleasure, and you—like me—believe in our mission, Authors Alliance would love to have you join as a member. And what I love about this organization is that it truly does want to be responsive to the needs of its members. Our two amicus briefs in the Hachette Books v. Internet Archive litigation (that Dave and Kyle Courtney wrote about just last week) were based on a survey we conducted of members and other authors, because we saw how author interests were taking a back seat to the interests of large publishers in the litigation. I wrote both of these briefs, and it was an absolute pleasure to use my legal training to share this important perspective with the courts.

We created our most recent guide, Writing About Real People, because we so often heard from nonfiction authors writing about real people who had questions about whether they might be exposing themselves to legal risk. The same is true for the permissions guide—it was partially inspired by the fact that a guest blog post on clearing rights for images had been one of our most popular of all time, indicating the need for this kind of resource. We began conducting advocacy work in the realm of AI and copyright because it was clear that generative AI had the potential to reshape authorship and intellectual property laws, and we thought our voice could be useful as a sensible, measured one that remained optimistic about technology and innovation.

On a personal level, being an attorney for Authors Alliance has given me both a strong sense of job satisfaction and the feeling that my work is helping people and making a difference in the world (something many lawyers can only dream of!). Whether it is seeing our views shape the development of the laws and regulations governing information policy, or hearing from an author who got their rights back or successfully negotiated with their publisher to retain their copyright, the effects of our work have reminded me that our organization really matters. It’s one I have been honored to be a part of for the past three and a half years. Please feel free to reach out over email (for now, you can reach me at rachel@authorsalliance.org) in the next few days, or add me on twitter or LinkedIn—I’d love to stay engaged with this community, even if I’m no longer involved professionally. I also plan to attend our 10th Anniversary celebration in May, and hope to see many of our members and allies there!

Fondly,

Rachel

Publishers’ brief in Hachette v. Internet Archive: First Impressions

Posted March 15, 2024

Dave Hansen and Kyle Courtney jointly authored this post. They are also the authors of a White Paper on Controlled Digital Lending of Library Books. We are not, as the Publishers claim in their brief on page 13, a “cadre of boosters.” We wrote the paper independently as part of our combined decades of work on libraries and access to knowledge.

Earlier today the publishers (Hachette, Harper Collins, John Wiley, and Penguin Random House) filed their reply brief on appeal in their long-running lawsuit against Internet Archive, which challenges (among other things) the practice of controlled digital lending.

For the months after the decision, we had been observing all the hot takes, cheers, jeers, and awkward declarations about the case, the Internet Archive itself, and Controlled Digital Lending (CDL).

This post is not part of that fanfare. Here, we want to identify a few critical issues that the publishers focus on in their brief, including some questionable fair use analysis that they repeat from the district court below. Much of the brief is framed in heated rhetoric that may cause alarm, but much like publishers’ announcements about interlibrary loan, e-reserves, or document delivery, we believe controlled digital lending is here to stay, regardless of the lower court’s poor copyright analysis and current publisher’s brief.

Framing the Question

As is often the case, the parties disagree on what this case is actually about. For its part, Internet Archive says in their “Statement of the Issue on Appeal” that the question is “whether Internet Archive’s controlled digital lending is fair use.” Publishers, on the other hand, reframe the question more broadly, which in combination with their arguments through the brief, seems intended to not just kill IA’s implementation of controlled digital lending, but to encourage the court to rule in a way that would call into question all other library applications of CDL.. They say that the question is “whether IA’s infringement of the Publishers’ Works is fair use based on IA’s CDL theories and practices.”

This litigation, coordinated by the AAP, seems to us an attempt to undermine what libraries have done for centuries: lend the books that they already lawfully own. Ironically, the opposition calls CDL a made-up theory created by a “cadre of boosters,” but in actuality, it’s the publishers’ licensing system that is a modern, made-up invention. The works themselves are unchanged, but the nature of digital delivery allows publishers to charge people in new ways. There is nothing in the Copyright Act that states ebook licensing is, or should be, the default way for libraries to acquire and lend books.

Commercial vs. Non-Profit Use

One of the most criticized aspects of the decision below is the lower court’s conclusion that IA’s activities are commercial, as opposed to non-profit. The publisher’s brief enthusiastically embraces this conclusion, while also attempting to drive a wedge between IA’s lending and that of other libraries: “IA’s practices are distinctly commercial – especially in comparison to public and academic libraries.”

The district court concluded that IA’s activity was commercial because it “stands to profit” through its partnership with Better World Books on its website, and by “us[ing] its Website to attract new members, solicit donations, and bolster its standing in the library community” (p. 26).

As many amici pointed out earlier in the appeal, the use of a nonprofit’s website to solicit donations is routine; it would be chilling for sites like Wikipedia, Project Gutenberg, Hathitrust and others (all of whom filed briefs in this case) to face heightened copyright liability just because they seek donations in combination with aspects of their sites that rely on a fair use assertion. The publishers attempt to distance themselves from this absurd result (“The concern that Judge Koeltl’s analysis “would render virtually all nonprofit uses commercial” is wildly overblown”), but it is clear from the number and diversity of amici who filed to speak to just this issue that the concern is very real.

As for Better World Books (BWB): BWB is an online bookstore and a Certified B Corporation, meaning that it achieves high standards of social and environmental performance, transparency, and accountability. B Corps are committed to using business as a force for good in the world. According to its website, BWB donates books to nonprofit organizations, including the Internet Archive. As of November 2019, IA and BWB have a partnership to digitize books for preservation purposes.

The focus on the supposedly commercial relationship with Better World Books (a used book reseller) seems to us a stretch based on the facts. The publishers’ brief makes a big deal of Better World Books (referencing them over 20 times in the brief), and argues that IA’s use is commercial because a) IA encourages readers to purchase books through links on its site to Better World Books, and b) Better World Books donates some funds back to IA. The first point is perplexing–one would think they’d be pleased that readers are encouraged to purchase copies of their books–even if on the used market. But the later point about BetterWorld Books’ commercial influence on IA’s operation is just not rooted in the facts of the case. As IA laid out in its opening brief, it has only received $5,561.41 from Better World Books in the relevant time frame. That’s an infinitesimally small drop in the bucket compared to the costs that IA has borne to digitize and lend books for no monetary return from readers. It’s hard to see how such an amount could be construed to tilt IA’s entire operation into a commercial activity.

For anyone who has actually worked on such projects, it is clear that IA is not archiving or lending books for commercial purposes. The idea that there is money to be made in doing so is laughable. Instead, it is providing access to knowledge and cultural heritage. This fundamental point somehow got lost on the publishers on the road to enormous profits.

eBooks vs. Digitized Books

There are lots of nuances that got lost in the decision below, which we believe were helpfully addressed by amici filings earlier in this appeal (e.g., the privacy implications of licensed ebooks vs. CDL copies lent by libraries). The publishers seem happy to gloss over the details again in this brief, particularly when it comes to the differences between licensed ebooks and those that are lent out with CDL.

First, the publisher’s brief makes clear they really don’t like it when books are available for free.. They use the word 33 times (about every other page of the brief)! Many of the references obscure what “free” really means though – for example, asserting that “Two Publishers believe that 39-50% of American ebook consumers read their ebooks for free from libraries rather than paying for their own commercial ebooks” (emphasis added) while ignoring the exorbitant costs and other burdens placed on libraries and the public to fund that licensed access. This is a major part of why libraries have responded both by embracing CDL and by advocating for laws that would require fair licensing terms for ebooks. .

Second, as far as market harm goes, the Publisher’s assert that “IA offered the Publishers’ library and consumer customers a free competing substitute to the authorized ebook editions” essentially arguing that “you can’t compete with free.” But, that is just not true. Examples are trivially easy to conjure up open source software vs. Microsoft or iOS. How often do you run into someone who uses Libre Open Office, or Ubuntu? And of course in creative industries, we’ve seen this kind of model take hold in numerous areas, including book publishing, with “freemium” models.’

That’s because products that are free often offer a different user experience than those that aren’t. Usually when someone opts to pay, they’re paying for an enhanced experience. The same holds true of books scanned for CDL vs. licensed ebooks. CDL books are just that – they are digitized physical books. They don’t have the nice, crisp text of licensed ebooks, nor the interactive features. You can’t highlight, or change the font, or look up a word by touching it, or do any of the myriad of functions that you can with an ebook.

That a library is loaning and controlling those copies is also a major distinguishing factor, because borrowing a book from a library (along with all the special privacy protections one receives) provides a vastly different reading environment than one in which vendors can scrape, process and sell data about your reading experience. Notably, the publishers did not engage with this argument.

“IA refuses to pay the customary price and join the Publishers’ thriving market for authorized library ebooks…”

Good gravy! According to the publishers, libraries should be forced to pay over and over again for the same book, to join a market for which there is no evidence that they are harming.

The publishers’ devote a large portion of their brief – nearly 20 pages– to arguing about market harm. Most of it comes down to the assertion that mere fact of the existence of a digital book market means that CDL must negatively impact the rightsholders’ profits (despite no empirical evidence of market harm). The lower court decision stated that IA has the “burden to show a lack of market harm” (p. 43), and concluded (without reference to meaningful evidence) that “that harm here is evident” (p. 44), an assumption which the publishers are happy to rest on.

There is a genuinely important legal question raised here about which party needs to prove what when it comes to market harm. The publisher’s brief relies heavily on the idea that IA bears the burden on every point of its fair use defense, especially market harm. But as IA points out in its opening brief,

“Although the Supreme Court has stated fair use is an affirmative defense for which defendants bear the burden (Campbell, 510 U.S. at 1177), it has also suggested this burden may apply differently to noncommercial uses than commercial ones. Sony stated that noncommercial cases require “a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists.” 464 U.S. at 417; see Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1385- 86 (6th Cir. 1996) (“The burden of proof as to market effect rests with the copyright holder if the challenged use is of a ‘noncommercial’ nature.”).

Conclusion

The brief is predictably hyperbolic, and continues to refuse to allow for any room for digital lending based on a misreading, in our view, of precedents such as Sony, TVEyes, and ReDigi. But, CDL is not some form of library-sanctioned piracy. CDL is based in copyright, fair use, and the public mission of libraries, while also broadening access to the books that library systems spend billions of dollars to collect and maintain for the public—including long-neglected, out-of-print books with enormous social and scholarly value and books for which commercial ebook licenses are not available.

During the pandemic, the importance of digital library access became strikingly apparent. It is unfortunate that the Publishers chose that moment of national emergency to sue a non-profit library for loaning books digitally. CDL simply seeks to preserve the library’s long-established and vital mission to collect and lend books in an increasingly licensed-access digital world.