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Is it fair use to remix two musical albums into a new derivative work, that cannot plausibly be judged to replace demand for either original work? Is it fair u

Is it fair use to remix two musical albums into a new derivative work, that cannot plausibly be judged to replace demand for either original work? Is it fair use to autogenerate GIFs from movies, perhaps the most protected digital works on the Internet today, in order to use them as reaction memes on Imgur? Is it fair use to autoextract code fragments from a code base, in order to use them as suggestions on GitHub? The Internet, and I imagine HN, was in an uproar when the music industry attempted to kill the White Album, because it infringed on their freedom to remix and derive. The Internet, and I imagine HN, was in an uproar when MLB attempted to kill unauthorized baseball GIFs and replace them with official curated ones, because it infringed on their freedom to remix and derive. How, precisely, is remixing and deriving from code ‘abusive’, in contrast to the past ten or twenty years of pressure on the Internet to the contrary when remixing and deriving from music or movies? This is a core point of the original post linked above, where the author is shocked by our demands for more prohibitive copyright interpretations, and I want to call this out more bluntly and less politely than they did: Fair use of a work is almost always perceived as abusive and unfair by the creator of a work. Creators ignore the cognitive dissonance between their demand to have fair use rights granted more easily to the protected works of others, and their demand to have fair use rights granted less easily to their own protected works. I see that dissonance go unaddressed in every top-level comment in today’s discussion. I see that desire to deny fair use rights driving hundreds of emotional me-too posts, without considering the framing of whether it is fair use in alignment with every prior copyright outrage we’ve discussed over the years. My theory is that permitting discussion of fair use would weaken their efforts to groundswell a pitchfork mob, and no one wants to confront their own biases or emotional investment or inability to profit from their code. Whatever the motivations, HN deserves better than this.

IncRnd 5y ago
You wrote 11 paragraphs about how HN deserves better than what everyone except you wrote. Yet in your reply you didn't address the comment to which you replied.
- floatingatoll 5y ago
  If it helps you parse my reply, consider that fair use explicitly intends to allow unpredictable derivatives that might otherwise be rejected by the copyright owner of a work, and so most of my reply anchors directly to this final paragraph of yours: > People never anticipated that github would strip their licenses from files and present their source code inside of VSCode for people to use freely. I can’t offer you a more detailed mapping of my reply onto exclusively your talking points, as I didn’t consider that a viable constraint. My original point at top of thread remains clear on my mind as I try to provide - using the examples of my own questions and concerns, after objections in the past that I wasn’t! - of what better, more reasoned, more curious, more worthwhile conversation looks like on this topic. I do accept that not everyone desires to see the change in tone I’m trying to represent here, and no doubt I have been imperfect in my efforts to represent it. I’m sad that this isn’t connecting for you, even though I accept each time I try this that understanding and agreement are never universal. Thank you for your effort in trying to understand all the same.
joshuaissac 5y ago
The Grey Album is the only example comparable to what Copilot is doing. And even this is tenuous. It was a one-off and even though the copyright holder EMI did not give permission, the creators of the content remixed were happy with the re-use. Moreover, Danger Mouse could have sought a statutory licence that only applies to music under US law, whereas no such thing exists for code. None of the other examples match up because the GIFs are not being compiled into films. The remixed works are in a different field of endeavour. If Copilot were being used to show snippets that scroll across the screen in hacker films, or used by musicians to rap a few lines of Rust code, that would be palatable to the copyright holders. It is transformative and very likely to be fair use. If Danger Mouse, who created the Grey Album, had instead started a business selling access to a tool that splices in copyrighted music and video based on a clip that the user provided, facilitating widespread, systematic infringement, creators would have been far less sympathetic, and EMI far more persistent in their legal attempts shut it down and collect damages.
- floatingatoll 5y ago
  You ask a very insightful question. Let me see where I end up running out the analogy in a certain direction. If Danger Mouse sold a remixing tool that enable widespread remixing of any/all albums, would DM be profiting illegally from the content of others? In each individual case, the remix album produced would have to pass the fair use tests, and if the user produced a sufficiently close replica, they could be restrained from distributing it. But that wouldn’t implicitly be the remixing tool’s fault, unless it mechanically reproduced a complete protected work with the user completely unaware it was doing so. A dedicated user can make any tool produce a protected work, so we have to aim for the narrow window of user-oblivious in order to fault the tool. Translating back to Copilot, this then becomes the question: can Copilot regurgitate an entire protected work for a user who then sells that work, with the user being fully unaware that they have reproduced a protected work without meeting fair use terms, such that Copilot is responsible? Copilot requires user prompting to emit code, and seems to draw the line at around the single function boundary, so reproducing an entire codebase becomes exponentially less likely as the number of functions increases. So if there were a weakness in Copilot’s defense, it would be in small single-function programs, at which point the parallel to another music case comes to mind: the person who generated and copyrighted every single musical phrase in Western major/minor, to prove that the law as written is not applicable when the total size and complexity of a given work falls below a certain threshold. I thus assume that Copilot is essentially protected in the single function case - it doesn’t matter if you have a protected work for (‘four’ (2 2 +) func), because that’s so simplistic that any human might reproduce it at any time unaided, and so claiming against them would fall flat when a judge applies the common sense threshold. It’s a high bar to expect a judge to recognize this analogy and understand code well enough, but I think between user intention to break fair use being required for complex multi-function systems, and the protection of snippets being essentially impossible to enforce against in music terms, would absolutely shield Copilot from being judged liable and owing damages. (General disclaimer applies: I am not your lawyer, please seek legal counsel before making use of my opinion, etc.)

IncRnd 5y ago

You wrote 11 paragraphs about how HN deserves better than what everyone except you wrote. Yet in your reply you didn't address the comment to which you replied.

floatingatoll 5y ago
If it helps you parse my reply, consider that fair use explicitly intends to allow unpredictable derivatives that might otherwise be rejected by the copyright owner of a work, and so most of my reply anchors directly to this final paragraph of yours: > People never anticipated that github would strip their licenses from files and present their source code inside of VSCode for people to use freely. I can’t offer you a more detailed mapping of my reply onto exclusively your talking points, as I didn’t consider that a viable constraint. My original point at top of thread remains clear on my mind as I try to provide - using the examples of my own questions and concerns, after objections in the past that I wasn’t! - of what better, more reasoned, more curious, more worthwhile conversation looks like on this topic. I do accept that not everyone desires to see the change in tone I’m trying to represent here, and no doubt I have been imperfect in my efforts to represent it. I’m sad that this isn’t connecting for you, even though I accept each time I try this that understanding and agreement are never universal. Thank you for your effort in trying to understand all the same.

joshuaissac 5y ago

The Grey Album is the only example comparable to what Copilot is doing. And even this is tenuous. It was a one-off and even though the copyright holder EMI did not give permission, the creators of the content remixed were happy with the re-use. Moreover, Danger Mouse could have sought a statutory licence that only applies to music under US law, whereas no such thing exists for code. None of the other examples match up because the GIFs are not being compiled into films. The remixed works are in a different field of endeavour. If Copilot were being used to show snippets that scroll across the screen in hacker films, or used by musicians to rap a few lines of Rust code, that would be palatable to the copyright holders. It is transformative and very likely to be fair use. If Danger Mouse, who created the Grey Album, had instead started a business selling access to a tool that splices in copyrighted music and video based on a clip that the user provided, facilitating widespread, systematic infringement, creators would have been far less sympathetic, and EMI far more persistent in their legal attempts shut it down and collect damages.

floatingatoll 5y ago
You ask a very insightful question. Let me see where I end up running out the analogy in a certain direction. If Danger Mouse sold a remixing tool that enable widespread remixing of any/all albums, would DM be profiting illegally from the content of others? In each individual case, the remix album produced would have to pass the fair use tests, and if the user produced a sufficiently close replica, they could be restrained from distributing it. But that wouldn’t implicitly be the remixing tool’s fault, unless it mechanically reproduced a complete protected work with the user completely unaware it was doing so. A dedicated user can make any tool produce a protected work, so we have to aim for the narrow window of user-oblivious in order to fault the tool. Translating back to Copilot, this then becomes the question: can Copilot regurgitate an entire protected work for a user who then sells that work, with the user being fully unaware that they have reproduced a protected work without meeting fair use terms, such that Copilot is responsible? Copilot requires user prompting to emit code, and seems to draw the line at around the single function boundary, so reproducing an entire codebase becomes exponentially less likely as the number of functions increases. So if there were a weakness in Copilot’s defense, it would be in small single-function programs, at which point the parallel to another music case comes to mind: the person who generated and copyrighted every single musical phrase in Western major/minor, to prove that the law as written is not applicable when the total size and complexity of a given work falls below a certain threshold. I thus assume that Copilot is essentially protected in the single function case - it doesn’t matter if you have a protected work for (‘four’ (2 2 +) func), because that’s so simplistic that any human might reproduce it at any time unaided, and so claiming against them would fall flat when a judge applies the common sense threshold. It’s a high bar to expect a judge to recognize this analogy and understand code well enough, but I think between user intention to break fair use being required for complex multi-function systems, and the protection of snippets being essentially impossible to enforce against in music terms, would absolutely shield Copilot from being judged liable and owing damages. (General disclaimer applies: I am not your lawyer, please seek legal counsel before making use of my opinion, etc.)