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Saturday, February 18, 2006

Instant Article Ghostwriter and fair use (cont'd)...

My last observations on this topic spurred an interesting comment from Jonathan, who doesn't share my view that Instant Article Generator (IAG, for short) probably stays within the Fair Use exemption for copyright infringement.

He used the same worksheet I referenced yesterday and felt that IAG's output was outside the bounds of Fair Use. I came up with the opposite conclusion. I think that really shows you the nature of the doctrine. Both of us seem to be fairly reasonable people who have given this issue some consideration. Still, we reached different conclusions. I won't go so far as to saying a determination is a coin flip, but it might be close.

Jonathan noted that "If I were using the software, I wouldn't want to chance it. Judges aren't fond of people that try to squeak around the law using technicalities, which is what the software is trying to do, and would be very likely to view it and anyone using it in an unfavorable light, especially since no original content is created. I can practically hear a judge informing an attorney that setealing one dollar from a hundred people is no different than stealing one hundred from a single person. One is just trying harder not to get caught. Nonetheless, judges are funny things sometimes, especially on matters of fair use. But seriously, would you want to risk your reputation and your finances on a piece of software like this? I can't see why anyone would."

I think this argument really cuts to the practical core of the whole IAG issue. Fair Use is a very gray area and is approached with some level of subjectivity by judges. I agree that attempts to skirt a law are unlikely to be well-received, but by the same token one must wonder how appreciated litigation about a single sentence lifted from another piece and used in a different context (probably within an informational article) would really be.

Likewise, one must wonder about how reasonable it would be to pursue litigation. The real proveable damages would be virtually nonexistent in most cases, leading the owner of a stolen sentence to purse statutory damages (I believe that under existing copyright law, those start at $750). Thus, even if one were to win such a case, the costs of bringing suit and following through are probably going to trump the reward.

Additionally, most IAG users would probably argue that the advertising of the product gave them every reason to believe their activity was within the boundaries of Fair Use. True, ignorance of the law does not excuse one from criminal acts. However, it does create a more sypathetic respondent. That raises the question of IAG's advertising and responsibility, but that is probably a different issue.

Of course, pursuing any action is based on the presupposition that the original author is going to discover his or her sentence plugged into some 400 word non-masterpiece that's hiding out in a big pile of search engine bait on the back-end of an Adsense site. That, in and of itself, is an interesting problem.

Thus, I think anyone using IAG can probably do so without exposing themselves to any real risk. The likelihood of discovery is low. The likelihood of sufficient motivation to pursue litigation is low. If litigation is pursued, Fair Use law seems to be so devoid of bright line distinctions that one could probably escape trouble. The damages are minimal and the user's reliance upon manufacturer's statements could cut against a suit's effectiveness, too.

So, in the end, here's my take. The output produced by IAG may or may not be defendable under Fair Use, but even if it is not, users are probably operating in pretty safe territory with respect to liability.

Personally, I don't care for the software. I also think it probably won't really amount to much due to what I perceive to be a general inefficiency. IAG-generated articles are unlikely to be the subject of litigation.

So, why spend all of this time discussing it? Well, IAG is part of a first wave of automated content production tools. As these improve, those who write will need to be ready to defend against more efficient programs that enable/produce plagiarism and copyright infringments.