Commentary

Fair Use, Fair Game: News/Media Alliance Fights Technical Copyright Ruling

The News/Media Alliance (NMA) has stepped outside its normal beat to join the Association of American Publishers (AAP) in challenging a court ruling in a copyright case.

The case, American Society for Testing & Materials v. UpCodes, Inc., concerns alleged copying by UpCodes, not of news stories but of copyrighted technical standards incorporated by reference into government codes. 

The U.S. District Court for the Eastern District of Pennsylvnia held that UpCodes had made a fair use of these standards. But the district court “misapplied the law in several critical regards,” the NMA and ASP argue in an amicus brief.  

For instance, the lower court ruled that the claim of potential market harm “did not favor the plaintiff because of the alleged public benefit of free distribution of the plaintiff’s works.”

This “is a disturbing rationale, in particular in light of the fact that a wide array of actors, ranging from ebook pirates such as Libgen and ZLibrary, to more credentialed organizations such as the Internet Archive, have sought to copy and distribute free ebooks or other digital materials in the name of greater access, while disregarding the rights of authors and publishers,” the amicus brief contends.

advertisement

advertisement

The brief adds that given “the growing presence of generative artificial intelligence tools that were trained on and operate by using news and book content without permission of the copyright owners, it is essential that courts properly apply the fair use analysis, including the market harm factor, so as to consider the harm to content creators that would result from the wholesale misappropriation of their works.” 

The filing also states that the district court erred in treating UpCodes as a noncommercial actor. 

In fact, UpCodes is a “for-profit corporation that receives indirect financial benefits from offering free copies of the Copyrighted Standards in order to draw sales of its premium service and other offerings and to collect data.” 

The amicus brief adds that given “the growing presence of generative artificial intelligence tools that were trained on and operate by using news and book content without permission of the copyright owners, it is essential that courts properly apply the fair use analysis, including the market harm factor, so as to consider the harm to content creators that would result from the wholesale misappropriation of their works.”

In addition, the district court erred in treating UpCodes as a noncommercial actor. 

In fact, UpCodes is a “for-profit corporation that receives indirect financial benefits from offering free copies of the Copyrighted Standards in order to draw sales of its premium service and other offerings and to collect data.”

It might be worth your while to read the brief, or at least give it to your lawyer to review. It addresses the broad issue of fair use, an issue that affects many types of content and technology in this AI age.

The amicus brief is on file with the U.S. Court of Appeals for the Third Circuit. 

 

Next story loading loading..