3 ms·

Yes but with complexities in general, and a collision with non-copyright issues for deep fakes that starts to get into more unexplored societal/legal territory.

by xoa 7y ago

Yes but with complexities in general, and a collision with non-copyright issues for deep fakes that starts to get into more unexplored societal/legal territory. First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. In practice, that can mean a somewhat higher financial risk and higher chance of losing at the edges. Second though, parody (and Fair Use) is about copyright and trademark, protecting use of such material for commentary and so on. But use of someone's likeness directly, particularly for someone famous, in order to produce new works is arguably something new that hasn't really been dealt with yet. Jay-Z making a copyright claim definitely seems dubious, and perhaps was done simply for convenience rather then legal strength, copyright disputes are the form in which most take down systems work. I can see arguments both ways for whether copyright would apply at all: in favor, the argument would be that the ML models are being trained via copyrighted works, which in turn makes them derivatives. On the other hand, facts are not copyrightable (in the USA) regardless of effort or source. A counter argument would be that the ML models are merely deriving facts about a person's vocal cord, facial structures and other physical natural characteristics, which then create a factual physical model which can be utilized to produce new works. In that case, all these new deep fakes would be their own brand new copyright (and potentially the ML models themselves not copyrightable). That'd be an interesting legal argument to see hashed out. But even if they're new copyrights, right to voice & likeness are issues in some jurisdictions and certainly could be argued should be more so as technology makes this easier. I think factors around threat to reputation and so on also are raised in new ways with deep fakes vs remixing and adding commentary to real, existing works (which can in turn be referenced by anyone who sees the parody). Even if there is a disclaimer on the original deep fake, as a de novo work which itself might get spread around without context it's at least different then what we've had until now.

gnopgnip 7y ago
>First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. This is a misnomer. Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152
- xoa 7y ago
  >This is a misnomer. No, I don't think so. Fair Use isn't merely a matter of court precedent, it specifically is in the Copyright Act (17 U.S. Code § 107 [1]), the language of which indicates it's on the plaintiff, and subsequent case law does seem to have affirmed that unless you have something further to cite? What you cited right there was Lenz v. Universal Music Corp, a 9th Circuit decision about abuse of DMCA takedowns, and in turn considering the "under penalty of perjury" aspect of the DMCA not "Fair Use" as a defense in general. The quote you gave was in the context of §512, Judge Tallman wrote that §512 "unambiguously contemplates fair use as a use authorized by the law". But again that's specific to the DMCA, and even there while the 9th seemed to want to try stemming abuse a bit, they only required the plaintiff to show a purely subjective lack of belief in infringement. Which could be without any real consideration of fair use factors at all. As well as being circuit only, analysis at the time indicated that if anything it might encourage copyright holders specifically to do as little as possible to consider fair use. Lenz did appeal to SCOTUS on that question but certiorari was not granted. Harvard Law had a fairly in-depth looking analysis [2]. In contrast for the 9th Circuit specifically in Perfect 10 v. Amazon/A9.com/Google [3] they explicitly covered Fair Use as an affirmative defense where the burden was on the plaintiffs: >C. Fair Use Defense >Because Perfect 10 has succeeded in showing it would prevail in its prima facie case that Google’s thumbnail images infringe Perfect 10’s display rights, the burden shifts to Google to show that it will likely succeed in establishing an affirmative defense. Google contends that its use of thumbnails is a fair use of the images and therefore does not constitute an infringement of Perfect 10’s copyright. See 17 U.S.C. § 107. Additionally, I can find modern SCOTUS opinions such as in Campbell v. Acuff-Rose Music which support Fair Use as an affirmative defense: >The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. It'd be nice if plaintiffs were required to demonstrate as part of a suit that there was not a fair use defense for the defendants, but I really don't think that's the case nationally right now. ---- 1: https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107 2: https://harvardlawreview.org/2016/06/lenz-v-universal-music-corp/ https://harvardlawreview.org/2016/06/lenz-v-universal-music-... 3: http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/06...

by xoa 7y ago

gnopgnip 7y ago

>First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. This is a misnomer. Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152

xoa 7y ago
>This is a misnomer. No, I don't think so. Fair Use isn't merely a matter of court precedent, it specifically is in the Copyright Act (17 U.S. Code § 107 [1]), the language of which indicates it's on the plaintiff, and subsequent case law does seem to have affirmed that unless you have something further to cite? What you cited right there was Lenz v. Universal Music Corp, a 9th Circuit decision about abuse of DMCA takedowns, and in turn considering the "under penalty of perjury" aspect of the DMCA not "Fair Use" as a defense in general. The quote you gave was in the context of §512, Judge Tallman wrote that §512 "unambiguously contemplates fair use as a use authorized by the law". But again that's specific to the DMCA, and even there while the 9th seemed to want to try stemming abuse a bit, they only required the plaintiff to show a purely subjective lack of belief in infringement. Which could be without any real consideration of fair use factors at all. As well as being circuit only, analysis at the time indicated that if anything it might encourage copyright holders specifically to do as little as possible to consider fair use. Lenz did appeal to SCOTUS on that question but certiorari was not granted. Harvard Law had a fairly in-depth looking analysis [2]. In contrast for the 9th Circuit specifically in Perfect 10 v. Amazon/A9.com/Google [3] they explicitly covered Fair Use as an affirmative defense where the burden was on the plaintiffs: >C. Fair Use Defense >Because Perfect 10 has succeeded in showing it would prevail in its prima facie case that Google’s thumbnail images infringe Perfect 10’s display rights, the burden shifts to Google to show that it will likely succeed in establishing an affirmative defense. Google contends that its use of thumbnails is a fair use of the images and therefore does not constitute an infringement of Perfect 10’s copyright. See 17 U.S.C. § 107. Additionally, I can find modern SCOTUS opinions such as in Campbell v. Acuff-Rose Music which support Fair Use as an affirmative defense: >The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. It'd be nice if plaintiffs were required to demonstrate as part of a suit that there was not a fair use defense for the defendants, but I really don't think that's the case nationally right now. ---- 1: https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107 2: https://harvardlawreview.org/2016/06/lenz-v-universal-music-corp/ https://harvardlawreview.org/2016/06/lenz-v-universal-music-... 3: http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/06...