The unpredictable nature of copyright infringement cases has long been a thorn in the side of copyright owners and content creators. The courts have acknowledged that “[t]he determination of [copyright] infringement is one of the most difficult of all legal questions,” and at least one observer has noted that the courts’ rules for evaluating copyright infringement “make little sense.” Even recent decisions such as the highly publicized Blurred Lines and Stairway to Heaven cases enforce the suggestion that it is very difficult to determine the outcome of an infringement case.
This is in spite of the fact that the majority of tests adopted by courts to evaluate infringement include some version of an objective comparison of the two works in question. The subjective evaluation of the works is typically left to the jury. Unfortunately, the courts’ objective evaluations have often yielded inconsistent results.
An unexpected solution seems to be developing before our eyes, and it involves the use of software and technology. Though technology has served as a silver bullet for decades in many industries, surprisingly, it has only recently been recognized as a significant new player in the copyright world. Yet its role has led to a perceptible shift in copyright law, one which continues to gain momentum over time, and increase in strength and magnitude with each new case it touches.
Recent infringement controversies help to illustrate technology’s effect. For instance, a YouTube mashup of Tom Petty’s I Won’t Back Down and Sam Smith’s Stay with Me may have been what prompted Petty’s publishers to contact Smith’s representatives about possible infringement, leading to a swift out-of-court settlement between the parties. Uptown Funk‘s YouTube payments stopped altogether when an infringement notice was filed with YouTube by representatives for the writers of Oops Upside Your Head, and a settlement between both sides was reached a few months later.
In addition to its use in copyright infringement claims, technology is also being utilized to protect websites from inadvertently hosting infringing content, effectively cutting infringement off at the pass. The Digital Millennium Copyright Act provides “safe harbor” protection from liability for internet service providers and online content hosts that unknowingly make infringing content available due to the actions of their users. However, this safe harbor protection hinges, in part, on content hosts expediently removing infringing content upon receiving notice of an infringement. To minimize the risk of this “accidental infringement,” sites like YouTube and Vimeo currently use software to evaluate content upon upload, rejecting infringing content before it’s ever hosted on their websites.
These uses, however, appear to address specific types or instances of infringement. At this time, there isn’t a standardized system used across the board to tackle copyright infringement claims.
The absence of a standardized system suggests that we have only scratched the surface of the role technology could play in policing and enforcing copyrights. A concerted effort to formally incorporate technology in identifying and resolving infringement claims might result in several desirable benefits. Automated copyright enforcement systems could help reduce the number of infringement occurrences, provide a more effective means of presenting and resolving infringement claims, and offer a useful tool to assist courts in performing a more objective analysis when evaluating claims.
If properly designed, an automated copyright enforcement system could help content creators recognize infringement before releasing infringing material and exposing themselves to liability. Though infringement may be accidental (described by the courts as “subconscious copying”), it is not made less actionable due to a lack of intent. If access and substantial similarity can be shown, liability attaches regardless of the content creator’s intent or knowledge of infringement. An automated system of evaluation could help identify and avoid such a scenario.
For content that has already been released, if infringement is found and can be demonstrated through the use of an automated copyright enforcement system, many infringement controversies could be resolved without ever filing suit. If one party presents evidence of infringement that is easily demonstrated in court through the use of software and technology, the infringing party may be more likely to settle.
If courts determine that automated copyright enforcement systems perform consistently and reliably, evaluations by automated systems may be useful in courts’ objective analyses. Software developed for comparing similarities between creative works must be programmed with specific evaluation parameters, and will likely be designed to match the standards of evaluation used by courts. So long as the parameters remain the same, the automated evaluation should be conducted in the same manner every time, theoretically leading to consistent results. Such consistency and reliability could provide courts a useful tool for conducting more objective evaluations.
In order for an automated copyright enforcement system to function most effectively, a few important changes may be necessary. Courts might have to alter their standard of evaluation so that it is more objective, as anything too subjective would be impossible to convert into usable software parameters. A digital library of existing material would likely be needed in order to have something with which to compare newly created material. Resources must be identified and allocated to develop the system, as existing software may require major modifications to function as intended.
The benefits, though, are likely to outweigh the drawbacks. In addition to the potential advantages discussed above, an automated solution may naturally create solutions to other existing problems. For instance, currently if a content creator has utilized existing copyrighted content and wishes to license its use, it’s often costly and difficult to track down the parties who can provide authorization. Once the responsible parties have been identified, the content creator must negotiate licenses for use of the content. A digital library of existing material could make licensing faster and easier, and may even lead to a more streamlined process. Ideally, this could have a stimulating effect on the creation of content, furthering the primary goal of the copyright clause – to promote the progress of science and useful arts.
The current state of copyright law still appears to be in flux. Outcomes in court are unpredictable, and it is not clear what role technology will play. What does seem clear is that technology may offer solutions to several longstanding problems, and this could come in the form of an automated system of copyright enforcement. Our hope is to explore this possibility and conduct a thorough evaluation of how such a system might emerge.