Copyright for Literate Robots

Copyright for Literate Robots James Grimmelmann * I. INTRODUCTION ............................................................................. 657 II. HUMAN COPYRIGHT ...................................................................... 658 III. ROBOTIC COPYRIGHT .................................................................... 661 A. N ON -E XPRESSIVE R EADING ....................................................... 661 B. B ULK R EADING ........................................................................ 665 C. B EYOND F AIR U SE .................................................................... 668 IV. POSTHUMAN COPYRIGHT .............................................................. 674 V. CONCLUSION ................................................................................ 681 I. INTRODUCTION Almost by accident, copyright law has concluded that it is for humans only: reading performed by computers doesn’t count as infringement. Conceptually, this makes sense: Copyright’s ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences: it pulls us toward a copyright system in which humans occupy a surprisingly peripheral place. This Article describes the shifts in fair use law that brought us here and reflects on the role of robots in copyright’s cosmology. * Professor of Law, University of Maryland Francis King Carey School of Law. My thanks to Aislinn Black, Annemarie Bridy, Jake Linford, Fred von Lohmann, Tom Rubin, Matthew Sag, Evan Selinger, and the participants in the 2015 Works in Progress Intellectual Property Colloquium for their suggestions. After January 1, 2016, this Article is available for reuse under the Creative Commons Attribution 4.0 International license, https://creativecommons.org/ licenses/by/4.0. 658 IOWA LAW REVIEW [Vol. 101:657 II. HUMAN COPYRIGHT Quietly, invisibly almost by accident, copyright has concluded that reading by robots doesn’t count. Infringement is for humans only; when computers do it, it’s fair use. This is an article about how it happened and some of the implications. To understand robotic readership, we should start by talking about human authorship, 1 or more specifically, the ideal of “romantic” authorship. 2 The name is not to suggest that there is something swoon-inducing about picking up a pen, but rather that the sort of creativity copyright concerns itself with is the product of a specific human mind. To quote a famous passage from Justice Holmes, “The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright . . . .” 3 Human readership, on this view, is engagement with an author’s expression. Copyright insists, for example, that substantial similarity for infringement purposes is a matter of readers’ perceptions of works, rather than inhering in the works themselves. 4 To quote an equally famous passage from Judge Learned Hand, a defendant’s work infringes on the plaintiff’s if “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” 5 In an important sense, copyright embraces an ideal of romantic readership that is the dual of romantic authorship. What readers are deemed to care about in a work of authorship as a copyrightable work—what makes it valuable 1. I will use “reading” generically to refer to the whole range of ways in which one can experience a work: reading, listening, watching, glancing, observing from all angles, and so on. For reasons that will become clear, textual works are at the heart of the transformation this Article traces. I will also use “robot” to refer to computer programs as well as mechanical devices; that usage fight has already been lost. 2. See, e.g. , MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993) (discussing the rise of authorship and literary property in England); James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading , 80 CALIF. L. REV. 1413, 1467–70 (1992) (discussing the role of “originality” in American copyright law); Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of “Authorship , ” 1991 DUKE L.J. 455 (discussing use of concept in contemporary copyright law); Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the “Author , ” 17 EIGHTEENTH-CENTURY STUD. 425 (1984) (tracing the historical emergence of the romantic author ideal in Germany). 3. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903). 4. See Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004) (explaining that “subjective intrinsic test” of similarity “must be left to the jury”); Jeanne C. Fromer & Mark A. Lemley, The Audience in Intellectual Property Infringement , 112 MICH. L. REV. 1251, 1267–73 (2014). 5. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). 2016] COPYRIGHT FOR LITERATE ROBOTS 659 to them as copyright’s ideal readers—is the author’s originality. 6 Hand’s “aesthetic appeal” to readers is Holmes’s author’s “personal reaction of an individual upon nature.” 7 This is why similarities to the unoriginal portions of a plaintiff’s work cannot support an infringement action, even if they are what make the work distinctive or drive its sales. 8 Copyright’s romantic readers are drawn to a work because something of the author’s unique humanity (as expressed in the work) resonates with their own. In a world of books and other pre-digital technologies, “copyright . . . left reading, listening, and viewing unconstrained.” 9 Ordinary acts of reading did not result in any new copies, and hence did not trigger any of the copyright owner’s exclusive rights; nor did readers have access to technologies that would have made copying easy. 10 The boundary between authors and readers was clear and simple: Authors made copies regulated by the copyright system, while readers did not make copies and existed outside its formal bounds. Modern media technologies from the VCR onwards have made reader copying much easier, and digital media technologies often make copies as part of the ordinary reading or playback process. 11 The result is that readers now regularly attract copyright’s attention; fair use has stepped in to ensure that ordinary acts of reading remain noninfringing. 12 Now for the third participant in copyright’s eternal triangle. “One who has slavishly or mechanically copied from others may not claim to be an author.” 13 We have another name for a “slavish copyist”: an infringer. Authors create; readers read; copyists infringe. But this is not quite all, because the line between infringer and author is contestable. It is one thing to say that a pirate printer reaps where she has not sown, but what about the writer of a critical review? She is both a copyist and a creator. Whenever copyright can recognize in a copyist the same attributes it admires in authors, it resolves this 6. See Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946) (phrasing the infringement test as “whether defendant took from plaintiff’s works . . . what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed”). 7. See Bleistein , 188 U.S. at 250. 8. See, e.g. , Kohus v. Mariol, 328 F.3d 848, 855 (6th Cir. 2003) (stating that a court in an infringement case must “filter out the unoriginal, unprotectible [sic] elements” of the plaintiff’s works before assessing similarity). 9. Jessica Litman, Lawful Personal Use , 85 TEX. L. REV. 1871, 1882 (2007). 10. See 17 U.S.C. § 106 (2012) (listing exclusive rights, with “reading” conspicuously absent). 11. See generally Aaron Perzanowski, Fixing RAM Copies , 104 NW. U. L. REV. 1067 (2010). 12 . See Litman, supra note 9, at 1897–903; Aaron Perzanowski & Jason Schultz, Copyright Exhaustion and the Personal Use Dilemma , 96 MINN. L. REV. 2067 (2012). The leading case is Sony Corp. of America v. Universal City Studios, Inc. , 464 U.S. 417 (1984). See also Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060 (9th Cir. 2013); Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999). 13. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir. 1976) (quoting 1 MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 6, at 10.2 (1975)). 660 IOWA LAW REVIEW [Vol. 101:657 tension in her favor by means of fair use. 14 After a few detours along the way, the courts have settled on asking whether the defendant’s use is “transformative” of the plaintiff’s expression. 15 In the words of Judge Pierre Leval, who articulated the concept: The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. . . . If . . . the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. 16 Fair use in this vein turns on whether the defendant’s use qualifies her as an author in her own right, one who stands on her own creative feet in crafting a work whose appeal to audiences derives from her own expression, rather than from the expression of the pre-existing materials she has recast and adapted. This is the traditional shape of copyright: it protects humans writing for humans. Transformative fair users are simultaneously readers and authors; human authorship is ultimately about human readership. Some...