Jonathan Pink, Josh Curry Quoted in Legaltech News Article on Machine Learning’s Copyright Issues
Los Angeles, Calif. (August 23, 2022) – Los Angeles Partner Jonathan Pink and Atlanta Partner Joshua D. Curry recently spoke to Legaltech News (part of Law.com) about the growing scrutiny around artificial intelligence (AI), as intellectual property law attorneys seek guidance from courts and regulators to determine whether existing bodies of law could protect the use of copyrighted works.
The article, titled "Lawyers Expect More Litigation, and Clarity, Around Machine Learning's Copyright Issue," describes that as companies feed machine learning models copyrighted pictures to train them to identify certain concepts, there is potential for long-standing copyright laws to be violated. "As AI becomes more mainstream and more used, it'll start to impact other pieces of legal issues in ways that we haven't necessarily thought of right now," Mr. Curry told the publication. He discussed an AI model that was trained with copyrighted works, saying "[As far as] the actual model that's created from them, I'm not aware of an easy way for a content owner to say something like, 'you scraped my images to use that, so therefore, I own something about your model.' There’s really no connection there."
The article goes on to provide a breakdown of the fair use doctrine, a balancing test used to determine whether certain uses of copyrighted works infringe the copyright owner's rights. "[There is] no bright line rule for what is fair use," said Mr. Pink, noting the doctrine's guidelines for courts to determine what should be considered fair use: purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used, and potential effect of the use upon the potential market.
The article further explains that as companies and lawyers are currently relying on fair use as a potential defense strategy, it is difficult to predict whether the doctrine will be enough protection moving forward. "So I would expect fair use to be a pretty good defense, but it all is in the details of exactly what's being copied, how it's being used and what the AI is doing with it," said Mr. Curry. "Because fair use is a very fact-intensive defense."
Mr. Pink echoed these sentiments, adding, "Ultimately, I can have an opinion as to whether it's fair use, and I trust my sense on it, but that doesn't mean ultimately that that’s the way the court is certainly going to go. All we have is the body of law that exists. We've seen the fair use pendulum swing back and forth from being more permissive to being less permissive."
As other jurisdictions like Japan and the European Union have taken steps to allow usage of copyrighted material for machine learning and protecting creativity in the digital age, Mr. Pink told Legaltech News he expects to see homogeneous laws passed between the U.S. and EU. "In the long run, I think there will be great consistency between laws that are adopted here and in the EU vis-à-vis intellectual property rights," he said.
Mr. Pink is a member of Lewis Brisbois' Intellectual Property & Technology Practice, and co-chair of the firm's Entertainment, Media & Sports Practice. He is a nationally recognized copyright, trademark, patent, and business litigator who represents high profile clients in the entertainment, advertising, fashion, automotive, licensing, media, and merchandising industries.
Mr. Curry is vice-chair of Lewis Brisbois' Intellectual Property & Technology Practice. He serves as lead counsel in patent, intellectual property, and technology litigation and is a registered patent attorney. An experienced litigator with a physics degree and considerable technical expertise, Mr. Curry helps clients effectively achieve their business goals when enforcing and defending their IP rights. He has served in IP leadership positions, been highly ranked by peers and publications, and represented clients in all phases of litigation and a wide range of technologies in courts and proceedings throughout the United States.
You can read the full Legaltech News article here (subscription may be required).
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