'Did Meta Compensate Any Of The Copyright Owners?': Dick Durbin Questions Lawyer Who Sued Meta

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During a Senate Judiciary Committee hearing on Wednesday, Sen. Dick Durbin (D-IL) asked attorney Maxwell Pritt about a lawsuit he argued against Meta.

Transcript

00:00I yield back. Thank you, Senator Welch. Senator Durbin. Mr. Pritt, you represent

00:06plaintiffs in a lawsuit against META that alleges copyright infringement of

00:10the plaintiffs' authors works. Do you have any idea how much META as a company

00:16is valued? That's a good question. Many trillions, I believe. Did META compensate

00:26any of the copyright owners, in your case, for the use of their works? No, but META did

00:31spend money on contributing its processing power to pirate from illicit

00:39websites and also to pay Amazon to host pirated data. Which, of course, did not

00:46iner to the benefit of your plaintiffs. Certainly not. How does the downloading

00:50and uploading of pirated copyright material impact the analysis of whether a

00:55copyright infringement could meet the mens rea requirement or willfulness

00:59necessary for criminal infringement? I would let the professors answer that

01:06question. Certainly as to willfulness in the civil copyright context, as the

01:13documents Senator Hawley showed, I think the answer is clear that the piracy

01:20committed by META was knowing and intentional. Anyone else want to comment on

01:25that? Mr. Lee? Dr. Lee? Yes, thank you, Senator. The standard of willfulness for

01:31criminal copyright infringement requires knowledge that it is illegal to engage in

01:39that particular copying. Now, I don't want to relitigate what Judge Chabria has

01:45already ruled on, but he was given all of this evidence that was submitted by Mr.

01:52Pritt and his colleagues. He saw the comments by engineers, but he also saw

01:58comments and analysis by lawyers of META, advising them on whether this was

02:04permitted or not under fair use law. And Judge Chabria made a determination, the

02:11crime fraud exception simply didn't apply. And I don't have, I'm not privy to all of

02:15the analysis that Judge Chabria made, but I'm assuming it was based on the the the

02:22question not being resolved. The legal question of whether accessing or copying

02:29from a pirated website to serve a highly transformative purpose is the very

02:36question raised in the lawsuit. There is no prior precedent that has so held that it

02:43is piracy or illegal, let alone criminal, infringement to do that. And that is the

02:50very question that Judge Chabria ruled on. And to assume that it is piracy is

02:55begging the question, with all due respect, it is begging the question that the

03:01courts are the appropriate determiners of. And that can be appealed, you know, and I'm

03:09sure it will be appealed. But here the question of whether acquiring for a

03:16putative fair use purpose is unlawful. Judge Chabria ruled it was not. It was for

03:25the fair use purpose of developing the AI model. I believe that as supported by the

03:29text of section 107. So Professor Vizwanathan, would you like to comment on

03:34that? I would. Thank you so much. The very fact that we're talking about this

03:40kind of behavior as to whether or not it's criminal, right? The very fact that

03:45we're here talking about willful, knowing, intentional, massive scale training on

03:51pirated materials. Let's just step back for a moment from the question of whether it

03:57comes under criminal copyright infringement. Does it come under fair use

04:00at all? Is this what fair use was developed to be? Fair use, for those of

04:07you who don't take my copyright class, sorry about that. Fair use is an

04:13affirmative defense. Yes, I infringed, but I did it for a good reason. A societally

04:20beneficial reason. All right, maybe creating a world's repository of generative AI

04:26companies is that, but it doesn't seem to me that it squares with the other

04:31things that we think of as fair use. What's well-established fair use? Education,

04:35criticism, commentary, First Amendment purposes that we consider valuable and

04:41necessary and that are done in good faith. I educate in good faith. I don't want to

04:45have to clear all those copyrights to educate. Okay, great. We allow you to do

04:49that. That is not what's going on here. I don't want to relitigate the cases,

04:55Professor Lee, but Judge Chabria was clearly distressed by this and when he

05:00raised the possibility, as you rightly say, in dicta, that market dilution might be

05:05what's happening, he's saying, look, exactly what the senator was talking about,

05:09flooding what Mr. Baldacci was talking about, flooding the market with subpar works that

05:14substitute for the original works. This is not what fair use was intended to

05:20achieve or to facilitate. And the very fact that these companies are arguing

05:26we're in good faith, we're doing fair use purposes, to me, this shouldn't even be

05:31a defense that they're allowed to raise. But okay, they will raise it and they

05:35will be litigated, but boy, it just does not seem consonant with what fair use

05:41was ever meant to do. Thank you. Thank you, Mr. Chairman.

05:47Mr. Pritt, if I could just ask you another question.

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