During a Senate Judiciary Committee hearing on Wednesday, Sen. Duck Durbin (D-IL) asked Santa Clara University Professor Edward Lee about rules around copyright law that Meta may have infringed upon to train its artificial intelligence models.
00:00Thanks, Mr. Chairman. I want to ask startup questions with Mr. Baldacci. A number of authors have shared with the public the process they go through to write a book. I believe John Irving and My Imaginary Girlfriend did that. I think John McPhee has done that in the past. Stephen King has done that.
00:21Give us kind of an insight, now that you have published successfully in volume, what the process is in writing a novel.
00:30Well, you know, one, you have to sort of be in love with words and storytelling, because that's sort of the essence of what you're trying to create. You draw upon personal experiences, your own curiosities, people you've met along the way, things that have happened to you, places you've traveled to, humanistic experiences that a software platform really can't replicate. And if it ever manages to do it, I would like another planet to live on, quite frankly.
00:53And for me, it was 20 years of hard work, learning the crap, before I ever was published at all. I started writing short stories and wrote them for 15 years when I was in college and law school, and tried to get them published and was not successful.
01:08But it's a craft that you build over time. And you have a lot of frustration, a lot of dips and valleys. Good times happen, bad times happen, rejections happen, you learn from them, you keep going.
01:20And at the end of the day, hopefully you get good enough where someone who has the ability to make your career happen will read your material and respond to it, and you can then maybe hopefully write for a living.
01:31And that's what happened to me after a long period of incubation. You never really see a lot of young writers, you know, you're not going to see a lot of teenage writers making it big, because writing is about life, and you have to have something to sort of write about, and it takes a long time.
01:47And that's why I felt when my son brought this up, where every single one of my books was presented to me in an outline in like three seconds, it really felt like I had been robbed of everything my entire adult life that I had worked on.
02:04Now I was in the possession of someone else that someone else I didn't even know could then use to write their own books that are actually my books.
02:10I mean, that's not supposed to happen in this country.
02:14And that was so enraging to me, that I was, I license my work all over the world.
02:20I license it for different foreign publishers, I license my work for television and movies and all types of endeavors.
02:26And I'm open to any offer. If someone comes to me and wants to license my work, I will listen to them.
02:30If we can negotiate something that's agreeable to both parties, I will do it.
02:34They can use my work for the parameters that are in the licensing agreement, and life can go on and people can be happy.
02:40But the uncertainty of like stealing stuff from pirated sites operated in Russia, just so you can gain an advantage and you don't really care about what happens to the likes of me and other writers coming up.
02:53I make a lot of money from my publisher, and my publisher has used that money to take risks on new writers coming up.
02:58They ordinarily would not have been able to take a risk on.
03:01So when you hurt established writers like me, you hurt all the other writers coming behind us.
03:06So when you're in the process, the creative process of writing novels and other things, are you policing against plagiarism?
03:16Again, I am pirated a lot, but I never worry about that because my ideas are my ideas.
03:23And nobody has the sort of mindset and the experiences that I have, nor do I have the mindset and experiences of other people.
03:30It's very individualized.
03:31I never worry about that I'm going to inadvertently take something away from another writer because my stories are my own.
03:39And that's why a software platform, the only thing they can do is take from what has already been created.
03:45They can't create anything really on their own.
03:47They take my mishmash and put it all together and throw it at the other end, but it still looks like my stuff because it is my stuff.
03:53Professor Lee, if I understand part of your argument here, you were suggesting that this is the age of innovation, deep learning, deserves special treatment.
04:06We've been through this argument in Congress before.
04:08Section 230 is a good illustration of that.
04:11We decided this fledgling industry called the Internet just may not have a future.
04:16Better be careful.
04:18So we exempted them from liability.
04:20Is that what you're suggesting?
04:21Not at all, Senator.
04:23My position is that we should pay heed to the existing Supreme Court precedents on fair use, which repeatedly states that fair use is a flexible doctrine decided on a case-by-case manner.
04:43And there is a way for authors to prove market harm based on a taking or the copying of protected elements of their works.
04:55Judge Alsop said, if the authors show that there is market harm based on an output of this model, you could bring another case.
05:06And that's exactly, I think, the approach to strike the correct, as you mentioned earlier at the opening remarks, to strike the right balance between protecting copyrighted works and authors and protecting innovation.
05:20Even just a story in Emerson v. Davies recognized that not everything in a book is protected by copyright.
05:30Authors build on the past books to write new books, and that fuels creation.
05:36And here, the line that Judge Chabria and Alsop drew in terms of non-infringing output, or excuse me, Judge Alsop, there is no copyright claim in the production of non-infringing works.
05:55I'm sorry to interrupt you, but I only have a minute left.
05:58It looks to me like you're shifting the burden to the author of the creative work when there's an assertion of fair use here.
06:06So Metta or others can virtually steal this creative product of Mr. Baldacci and others, and then he has the responsibility of proving that there's been an economic loss to him as a result of it?
06:20Not at all, Senator.
06:24The judges explained in their opinions that, yes, the initial burden for fair use is on the defendant, but the defendants in both cases provided evidence that there was no output of infringing works.
06:38And the question then becomes, will the plaintiffs present contrary evidence, and neither judge found evidence of outputs that had substantially similar copies of the plaintiffs' works.
06:54So the entire…
06:55Ultimately, the thievery, if you want to use that word, of the creative work is for the economic benefit of those who are creating the AI, is it not?
07:05Not necessarily.
07:08I think if the plaintiffs are able to prove cognizable market harm from the copying of their copyrighted expression, then the fair use argument is likely to fail for the training.
07:23Coming at it from a different angle, I'm talking to you about why do we have AI, why are we interested in AI?
07:29Clearly, it's a commercial purpose, is it not?
07:32Oh, entirely.
07:33For the AI companies, yes.
07:34For the companies, so that they are ultimately the winners in this approach that you are taking.
07:41We assume we're in a world of new innovation here, and there is a use of someone else's creative work.
07:48The burden's on them to prove that they've lost money because of that piracy.
07:55But the ultimate winner in this is going to be the AI, because if they escape this responsibility, they can use Mr. Baldacci's product and make money off of it.
08:04Yes, if the training is considered a fair use, the direct benefit would be to the AI companies.
08:10I grant that, but in terms of the larger national interest, it redounds to the benefit of the United States.
08:20If we have a priority in AI development, and if we are in competition or arms race with China, winning the AI race by United States companies benefits the United States, in my view.
08:36And Mr. Baldacci should be prepared to pay the price for that, right?
08:40Well, I would suggest that if it is so easy to generate copies of Mr. Baldacci's novels or any other authors, that should go in the complaint in these lawsuits.
08:54And some of the lawsuits do allege infringing outputs.
08:57So those are yet to be resolved.
08:59But my ultimate position is that we should not throw out the window the established Supreme Court precedents on how to apply fair use.
09:09It is case-by-case, flexible, and it balances the interests of both sides in terms of copyright as well as innovation.
