Comment by d1sxeyes
9 months ago
So, if Meta were found to have been seeding or making copyrighted materials available to others without permission, that's a slam dunk, I think.
But Meta's contention is 'you don't have any proof of that'.
I think there is enough existing case law and ambiguity in the law as it's written that Meta stand a reasonable (although not a good) chance of being able to argue that they did not commit any crime because a.) they did not create the infringing copy (or that the infringing copy that they received was a technical copy, and they did not create an infringing copy themselves) b.) they did not infringe for private or financial gain (the models they trained on this material were released to the public for free). There's an argument that copyright infringement occurs only upon distribution, and as far as I'm aware, there's no case law that just downloading a copy is illegal.
Meta may also be able to argue that their use of the material could be considered 'fair', as it is non-commercial, transformative, and that the use of the material does not harm the market for the original work.
I'm not a lawyer, and I'm not arguing about the merits of these arguments, just that they seem to me to be plausible.
> a.) they did not create the infringing copy (or that the infringing copy that they received was a technical copy, and they did not create an infringing copy themselves)
Copyright protects against making copies of the work, which they definitely did.
> There's an argument that copyright infringement occurs only upon distribution
Not in most countries. Certainly not in America.
> b.) they did not infringe for private or financial gain (the models they trained on this material were released to the public for free).
They definitely gained from it. If their argument rests on that then they're screwed.
> Meta may also be able to argue that their use of the material could be considered 'fair', as it is non-commercial, transformative, and that the use of the material does not harm the market for the original work.
Probably their best bet but it's hard to see how that would fly given that it is commercial even if they released it for free, and fair use normally depends on how much of the work you use; they used all of everything.
> Copyright protects against making copies of the work, which they definitely did.
I agree. But a good lawyer might be able to argue that they only received a copy, they didn’t make one themselves.
> Not in most countries. Certainly not in America.
I think the law itself is clear that reproduction is its own right, but I couldn’t find any case law where someone was prosecuted only for reproduction. There are certainly some concerns with the law as it’s written (such as the first sale doctrine, or home ripping of CDs, etc.).
> They definitely gained from it. If their argument rests on that then they're screwed.
Yes but were the gains private and financial? Again, a good lawyer might be able to argue that actually, Facebook invested a lot (financially) into training the models, and then released for free, so are net negative financially.
> fair use normally depends on how much of the work you use
Fair use is a very difficult one to put an exact definition on, and whatever definitions exist do not determine based purely on the amount of the work used. There is case law that a full work can be considered fair use, and that even minimal parts of the work are not. Again, a good lawyer could perhaps make this argument successfully.
I don’t think anyone without access to a legal team that costs millions would stand much of a chance here, but Meta might.
Meta has a target on its back after getting away with meme jacking / users reposting without attribution / tanking media outlets and becoming a “news source” over the last decade.
I’m all for them getting a dose of reality in this case, and nothing consistently whips tech in the pocketbook like whining their interpretation of Fair Use is legal when it clearly is not.