Artificial Intelligence’s Fair Use Crisis

As automation supplants more forms of labor, creative expression still seems like a distinctly human enterprise. This may someday change: by ingesting works of authorship as “training data,” computer programs can teach themselves to write natural prose, compose music, and generate movies. Machine learning is an artificial intelligence (“AI”) technology with immense potential and a commensurate appetite for copyrighted works. In the United States, the copyright law mechanism most likely to facilitate machine learning’s uses of protected data is the fair use doctrine. However, current fair use doctrine threatens either to derail the progress of machine learning or to disenfranchise the human creators whose work makes it possible. This Article addresses the problem in three Parts: using popular machine learning datasets and research as case studies, Part I describes how programs “learn” from corpora of copyrighted works and catalogs the legal risks of this practice. It concludes that fair use may not protect expressive machine learning applications, including the burgeoning field of natural language generation. Part II explains that applying today’s fair use doctrine to expressive machine learning will yield one of two undesirable outcomes: if U.S. courts reject the fair use defense for machine learning, valuable innovation may move to another jurisdiction or halt entirely; alternatively, if courts find the technology to be fair use, sophisticated software may divert rightful earnings from the authors of input data. This dilemma shows that fair use may no longer serve its historical purpose. Traditionally, fair use is understood to benefit the public by fostering expressive activity. Today, the doctrine increasingly serves the economic interests of powerful firms at the expense of disempowered individual rights holders. Finally, in Part III, this Article contemplates changes in doctrine and policy that could address these problems. It concludes that the United States’ interest in avoiding both prongs of AI’s fair use dilemma offers a novel justification for redistributive measures that could promote social equity alongside technological progress

Golan v. Holder: Copyright in the Image of the First Amendment

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment

Innate talents: reality or myth?

Talents that selectively facilitate the acquisition of high levels of skill are said to be present in some children but not others. The evidence for this includes biological correlates of specific abilities, certain rare abilities in autistic savants, and the seemingly spontaneous emergence of exceptional abilities in young children, but there is also contrary evidence indicating an absence of early precursors of high skill levels. An analysis of positive and negative evidence and arguments suggests that differences in early experiences, preferences, opportunities, habits, training, and practice are the real determinants of excellence

The Stylometric Processing of Sensory Open Source Data

This research project’s end goal is on the Lone Wolf Terrorist. The project uses an exploratory approach to the self-radicalisation problem by creating a stylistic fingerprint of a person's personality, or self, from subtle characteristics hidden in a person's writing style. It separates the identity of one person from another based on their writing style. It also separates the writings of suicide attackers from ‘normal' bloggers by critical slowing down; a dynamical property used to develop early warning signs of tipping points. It identifies changes in a person's moods, or shifts from one state to another, that might indicate a tipping point for self-radicalisation. Research into authorship identity using personality is a relatively new area in the field of neurolinguistics. There are very few methods that model how an individual's cognitive functions present themselves in writing. Here, we develop a novel algorithm, RPAS, which draws on cognitive functions such as aging, sensory processing, abstract or concrete thinking through referential activity emotional experiences, and a person's internal gender for identity. We use well-known techniques such as Principal Component Analysis, Linear Discriminant Analysis, and the Vector Space Method to cluster multiple anonymous-authored works. Here we use a new approach, using seriation with noise to separate subtle features in individuals. We conduct time series analysis using modified variants of 1-lag autocorrelation and the coefficient of skewness, two statistical metrics that change near a tipping point, to track serious life events in an individual through cognitive linguistic markers. In our journey of discovery, we uncover secrets about the Elizabethan playwrights hidden for over 400 years. We uncover markers for depression and anxiety in modern-day writers and identify linguistic cues for Alzheimer's disease much earlier than other studies using sensory processing. In using these techniques on the Lone Wolf, we can separate their writing style used before their attacks that differs from other writing

COLLEGE-AGED WOMEN’S PERCEPTIONS ON HEALTHY AND UNHEALTHY ROMANTIC BEHAVIORS AND HOW REALITY TV INFLUENCED THEIR VIEWS ON RELATIONSHIPS: A QUALITATIVE CASE STUDY

Women between the ages of 18-24 experience intimate partner violence at a higher rate than any other group. Physical violence can be easily identified as an unacceptable practice. However, recognizing different aspects of abusive behavior is not as easy to identify. The purpose of the case study was to examine how college-aged women perceive which behaviors were healthy and unhealthy in a romantic relationship and how reality TV influenced their views. The two central themes of the study were healthy relationship behaviors and unhealthy relationship behaviors. The subcategories for healthy relationship behaviors were communication, love, and support. The subcategories for unhealthy relationship behaviors were aggression, lying/dishonesty, and manipulation/gaslighting. Results of the study indicated that college-aged women take social cues from the reality TV programming they watch. Findings suggested that consistent exposure to relationship-based reality TV shows directly influenced college-aged women’s perceptions of romantic relationship behaviors

Creating Around Copyright

It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate amount of restriction. Drawing from work in cognitive psychology, management studies, and art history, this Article argues that contemporary copyright discourse has overlooked constraint’s generative upside. The Article unpacks the concept of constraint into seven characteristics: source, target, scope, clarity, timing, severity, and polarity. These characteristics function as levers that determine a given constraint’s generative potential. Variation in that potential provides an underappreciated theoretical justification for areas in which copyright law is restrictive, such as the exclusive derivative work right, as well as areas where it is permissive, such as the independent creation and fair use defenses. The Article reveals that the incentives versus access debate that has long dominated copyright theory has misunderstood the relationship between creativity and constraint. Information may want to be free, but creativity does not