Questions & Answers — Copyright Column

Column Editor: Kyle K. Courtney (Copyright Advisor, Harvard University) <kyle_courtney@harvard.edu>

Column Editor’s Note: It is my absolute pleasure to take up this copyright column for Against the Grain. As an avid reader of the Copyright Q&A, I am always delighted to see questions from across the Charleston Conference community asking about copyright and a variety of related topics. And, of course, for the last three years I have read Will Cross’ clear and concise answers to complex issues. I can only hope to carry on his work of empowering the community by providing interesting answers. — KKC

LIBRARIAN ASKS: Many of the resources available to our patrons are licensed from vendors. These licenses are long and complex, but don’t often mention any type of use beyond “authorized uses” which are sometimes limiting. Does fair use apply to the use of those licensed resources of materials?

ANSWER: This is very interesting because, normally, fair use will actually survive general licensing disclaimers. Let us explore the broad topics first and then narrow in on the fair use part of the question.

Contract law is about enforcing promises. A contract is a promise or a set of promises for the breach of which the law gives a remedy. Licenses are most often granted within the context of a contractual relationship and often the same words used to create the license are also contained in the same instrument that also memorializes a contract. A license has been called a “contract not to sue.” For our discussion, then, a license or contract is a legal interest created by a titleholder (in many cases, the vendor) granting use-privileges to some non-titleholder (in many cases, the library). We will use the terms “license” and “contract” interchangeably.

A license is not all that matters when it comes to figuring out whether and how licensed collections can be (potentially) fairly used. But depending on the contract, you might not have made any specific promise about fair use, in which case, fair use (or another default legal right) will survive.

Contract law and fair use rights are separate sources of authority. You can seek permission (a license) to use a covered work, OR you can exercise your own rights under the law. If the copyright holder withholds permission, that doesn’t necessarily undermine fair use — why? Because fair use is the right to make certain uses without permission.

Now, that being said, whether fair use survives a license will depend on the specifics of the contract.

For example, if there is language describing the limits of a license, such as a statement that a particular license is “for [SPECIFIC] use only,” (e.g., “for personal use only”), it should be read to leave fair use intact.

Or, if there is “contractual silence” (e.g., the license says nothing about it) about a particular fair use activity, should also be read to leave fair use rights intact.

However, language of clear prohibition or a promise not to engage in certain uses is most likely sufficient to surrender fair use rights. An example of clearly prohibitory language is

“User agrees not to…” or “User shall not…” This is a promise by the user not to exercise their fair use rights.

One other clause to consider is a fair use “savings clause.” This language is often recommended for standard inclusion in many library licensing agreement negotiations. This language typically is a statement such as “nothing in this agreement shall be interpreted to limit … the Licensing Organization’s or any Authorized User’s rights under the Fair Use ….” As you can see, this clause helps clearly preserve fair use rights for your authorized users by stating that even if there are terms in the license that limit, restrict, or prevent a fair use, they simply do not apply. An agreement with this kind of clear, broad savings language generally allows you to ignore contrary language elsewhere in the agreement as long as the use is otherwise lawful and fair.

Now, even if there is a fair use savings clause added during negotiations, sometimes a vendor might still get concerned about patron uses, even contractually protected fair uses. And maybe the parties do not know exactly what the fair use savings clause means. In a 20+ page license, it’s not always the library licensee that glazes over upon reading all these sections, the licensor may as well!

Suppose the licensor discovers a patron use that they find objectionable, and they contact you to express their objections. The fair use savings clause certainly can help clarify the patron’s right to use the materials fairly, but this would also be an opportunity that will require more discussion about the interpretation of the clauses, and potentially, an opportunity to educate, learn, and collaborate.

FACULTY MEMBER ASKS: I read about the lawsuit between some visual artists and the new AI company. I read that sometimes art is used to “train” the AI, and that might be infringement. How are these AI systems trained, and what are the legal implications?

ANSWER : Right now, we are watching enormous development in the artificial intelligence (AI) space. New tools like Midjourney, Stable Diffusion, and ChatGPT allow everyday users to produce images, text, code, and other creative content using basic language prompts.

These AI tools were all developed using a process called “training.” But this isn’t training like Rocky Balboa running up the stairs in Philadelphia. These AI systems are “trained” to produce new creative works by subjecting the program to large amounts of previously existing works. A common training ground is the plethora of text and images that are found across the internet. Now, the key is that this training process may involve making digital copies of these existing text and images. OpenAI, for example, has stated that its programs are trained on “large, publicly available datasets that include copyrighted works.” Further, this process “necessarily involves first making copies of the data to be analyzed.”

For even the novice copyright reader, creating copies — any copies — without express permission from the original copyright owners of the work could infringe the copyright holders’ exclusive rights. But this also might not necessarily be true.

And this, certainly, is one aspect of the lawsuit against Stability, a company that runs the AI tool Stable Diffusion. The case is titled Andersen et al. v. Stability AI Ltd. et al, No. 3:23-cv00201 (N.D. California 2023).

As the three artists outline in their complaint, Stability downloads and acquires copies of billions of copyrighted images to train their AI, known as Stable Diffusion. “Training images” are often gathered through web scraping billions of images from a variety of public websites. Stability stores the images and incorporates them into Stable Diffusion as compressed copies. Stable Diffusion then uses the training images to produce “new” images through a mathematical software process. The “new” images are based on the learning process and the training images.

Here, Stability downloaded or otherwise acquired copies of billions of copyrighted images without permission to train Stable Diffusion. These technically compressed copies were also made without the consent or compensation to the artists. The complaint calls it “a complex collage tool” and claims market harm; that the “new” images generated “in the style of” the original images compete in the marketplace with the original artist’s images.

While we are at the beginning stages of this lawsuit (and there are similar AI lawsuits filed by Getty Images in both the U.S. and U.K. courts), it is inevitable that transformative fair use will be raised as a defense.

Are there fair use decisions that are relevant to this scenario? Well, there have been a host of transformative fair use cases since its establishment in the Supreme Court in 1994. One relevant case that comes to mind is Authors Guild, Inc. v. Google Inc. — one of the most famous of all U.S. fair use cases, and its origins emerge from the worlds of libraries and technology.

In that case, the court considered Google Books’ scanning of the copyrighted works to be highly transformative because it digitized them and transformed expressive text into a comprehensive word index that helped readers, scholars, researchers, and others find books.

Similarly, the use was transformative in the sense that the search engine transformed book text into data that could be mined for research purposes, a completely new field of scholarship. It did not replace books because it was not a tool to be used to read books. The court found that Google’s use of books was “highly transformative,” as showing snippets and allowing readers to discover books and conduct research “does not supersede or supplant books” but rather “adds value to the original.”

The new transformative purpose in Google Books was different from the original purpose of the books in the massive corpus of millions of scanned books. Does this case have relevance in this situation? I would believe so, yes. My prediction is that it is inevitable that AI training, which involves scraping billions of images and text from the web, will be put through the lens of modern transformative fair use cases like Authors Guild, Inc. v. Google Inc. And whether the analogy is apt or distinguishing, it would appear we might have another fair use decision emerging from the AI litigation in the future.