Category: Copyright

Categories
Copyright Law

CanLII and Caseway: claim on TOS grounds

I used an AI generator to create an image of "a very rich man did something foolish," which feels appropriate to the situation here.
I used an AI generator to create an image of "a very rich man did something foolish," which feels appropriate to the situation here.

As reported by Law360, CanLII is filing suit against the Caseway AI chatbot over allegations of a mass scrape of CanLII’s content.

I’m a big CanLII fan. I use it all the time, including on multiple blog posts on this site, and recorded a podcast episode about it some time ago. It’s a phenomenal resource.

There are a few things that will be unpacked here, in the courts or otherwise.

CanLII’s main claim to fame isn’t original content, but being a central resource that consolidates legal decisions in Canada.

That said, the very first point in the Statement of Facts, per CanLII, is

  • The plaintiff, the Canadian Legal Information Institute (“CanLII”), is a not-for-profit organization that owns and operates a proprietary search engine and database containing its work product, including court decisions, legislation and secondary sources that have been reviewed, curated, catalogued and enhanced by CanLII at significant cost and effort (the “CanLII Works”).

This would be tricky to defend on copyright grounds. The Supreme Court has upheld copyright in “headnotes, case summary, topical index and compilation of reported judicial decisions” in the past.1CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 Broadly speaking, most of what CanLII does isn’t original work.

But some of it is! From the Statement of Facts, 18(i) CanLII:

summariz[es] court decisions and generating an original analysis containing case facts, procedural history, parties’ submissions, legal issues, disposition, and reasons for judgment, with links to the pertinent paragraph numbers within the body of the corresponding decision;

This clearly aligns with the SCC decision above, and if it’s found that Clearway included and used the original works in their scrapes, that’s not great for them.

What’s really interesting is that CanLII is approaching this as a breach of contract, via the Terms of Use for the website. It feels, to my eyes, like they know the copyright case is inherently a bit shaky, and the clearer path is to reinforce the copyright infringement claim with the breach of contract.

This distinguishes CanLII from other high-profile lawsuits against AI by creators claiming copyright violation. Sarah Silverman, for instance, doesn’t have terms of use. (I’m sure Sarah Silverman could make a great and filthy joke about her “terms of use,” but I digress.)

The TOS tack is novel, to my knowledge.

Caseway’s counter-arguments to CanLII’s claims are, well, kinda stupid. Per the Law360 article:

“Our AI is built to pull and analyze unaltered court documents directly from public sources, ensuring compliance with copyright and intellectual property laws. CanLII’s attempt to restrict us from using their data is essentially moot, as we’re already avoiding it,” [Alistair Vigier, co-founder of Caseway AI] said in a statement.

But… Caseway did. Whether or not the documents are publicly accessible doesn’t alter the fact that they pulled them from CanLII.

And

He added that he had never seen or accepted CanLII’s terms of service and noted that Caseway does not incorporate CanLII’s works in any way that masks, frames, or misrepresents their origin.

Yeah, nobody ever reads those things, huh? That doesn’t mean they don’t exist (digging in the crates again, I did a fun podcast episode several years ago with Peter Kissick about the contracts nobody reads). But they’re there. Ignore them at your peril.

Vigier noted that an injunction restricting Caseway from using CanLII’s data would not impact its operations as it is not using any CanLII data in its system.

Whether or not they’re presently using the data is again immaterial to whether or not they violated the TOS and copyright of CanLII.

I’m looking forward to seeing how this plays out. Hopefully not an out of court settlement; there are some nuances around the value of categorization and analysis that seem to fall under the SCC threshold established in CCH that could be interesting to see threshed out in court.

And the recursive loop of looking all this up in CanLII will be fun.

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    CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13
Categories
Copyright Just for fun Law Photography

Graffiti and Copyright

Krog St., Atlanta, by Lee Coursey, https://www.flickr.com/photos/leeco/16224063980/in/photostream/ CC 2.0
Krog St., Atlanta, by Lee Coursey (CC 2.0). Without explicit permission, Coursey could be committing copyright violations by reproducing this graffiti -- and now, so could I. If that little shark-lookin' fella is also a trademark, there's a whole other layer of things to unpack here.

In the category of “interesting things I’ve never thought much about,” Gerald Kerr-Wilson and Kiera Boyd (Fasken) popped up in a Google alert I have set up recently with a short piece on whether graffiti is protected by copyright. It’s short and cogent.

On search to fill in some holes, I’ve discovered this is kind of a little cottage industry for law firm blogs shoring up their SEO; a quick search shows at least a dozen very similar articles treading much the same ground:

  • the Copyright Act doesn’t require that work be lawful to have copyright protection;
  • issues may arise if graffiti is reproduced, including in the background of other works, and that partial destruction of graffiti may infringe the author’s moral rights.

Challenges when using graffiti are partially answered in the first case by incidental use (s30.7 of the Act) and whether the graffiti could be considered permanent “artistic craftsmanship” (s 32.2(1)(b)). In the second case, it’s possible (no case has ever come up) that protection may exist but in a limited form, like for obscene materials (Aldrich v One Stop Video Ltd, [1987] BCJ No 1035).

Fair dealing isn’t much of a defense; it’s highly contextually specific, but it would be rare(ish) for something to be covering graffiti in an academic/analysis context that gets to the point where it’s worth pursuing a claim. Plus, attribution is part of the consideration — impossible with most graffiti, which I get into below.

They don’t address two questions I think are really compelling, though.

First, that to claim authorship you’d have to in many cases confess to a crime; in Canada, this would be “mischief”, per s 430(1) of the Criminal Code:

Mischief

430 (1) Every one commits mischief who wilfully

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

Criminal Code, s430(1)

Generally, assuming that most graffiti results in <$5K of damage, this would make you liable to imprisonment for a term not exceeding two years, or punishable on summary conviction (s 430(4)).

There’s a six-month limitation to most cases of mischief (s 786(2) of the Code), so depending on how rapacious you are as a tagger* and how far in the past you bombed*, your comfort level in coming forward may vary.

Second question: how do you prove you’re the author of graffiti? Clearly, you’re not going to register it. I can only imagine that in many cases, the artist has taken steps _not_ to be identified. On a cursory search, I can’t find much in terms of court cases that have hinged on authors proving authorship over pseudonymous work. The one thing — a 2014 story about Alexandre Veilleux, a Montreal graffiti artist who sued Radio-Canada (French-language CBC) for $45,000 for using buildings tagged with his graffiti under the name “Alex Scaner” in a TV show called 30 Vies. Article here (in French). Nothing seems to have reached to the point that it’s captured in CanLII, so either it was dropped or settled pre-court.1Also, Quebec is a civil law jurisdiction, so YMMV in the rest of Canada.

Via Teresa Scassa’s blog, a 2013 account of an Orillia-area art gallery that pulled an exhibit of photos of graffiti taken in Barcelona; in the Scassa blog, there’s also mention of a 2008 incident with a Toronto gallery taking down a graffiti photo exhibit. 2An aside: bitrot has eaten some of the above articles, and I can’t say enough how much I appreciate the good people at archive.org and the Wayback Machine for archiving things like this. If you have a few bucks this holiday season, consider supporting them.

It’s also worth noting the the latter article includes a photo of somebody in the gallery, looking at the photos that reproduce the graffiti — I’d assume that “Patanne“, the photographer there as credited in this other article, is now also subject to the same complaints as Karp, the Moore Gallery artist. It’s turtles all the way down.

Banksy, the world’s most famous graffiti artist, has failed to assert copyright over his work in the past – in part because he wanted to preserve his pseudoanonymity.

Fun woolgathering, but without much to hang a hat on. A little woolgathering on a Sunday morning is never a bad thing, though.

*Am I qualified to use graffiti lingo? Well, I did subscribe to Juxtapoz magazine for, like, two years in the mid-aughts, so I have exactly $72 worth of cred.

Music:

  • Various Artists, “The Faithful: A Tribute to Marianne Faithfull”
  • Sick Boss, “Businessless”
  • Various Artists/Tycho, “Back to Mine: Tycho”
  • 1
    Also, Quebec is a civil law jurisdiction, so YMMV in the rest of Canada.
  • 2
    An aside: bitrot has eaten some of the above articles, and I can’t say enough how much I appreciate the good people at archive.org and the Wayback Machine for archiving things like this. If you have a few bucks this holiday season, consider supporting them.
Categories
Copyright Law Nerd

AI, the Mouse, and the Mask*

Another U.S. decision that AI-generated art cannot be copyrighted — while acknowledging that there will be “challenging questions about how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.”

Where this is going to get really interesting, I think, is when somebody uses AI to produce something with a striking resemblance to a certain M. Mouse, or D. Vader.

AI generated image of a cartoon mouse with black ears and a white face, smiling, with exaggerated features.
A one-off ask in DALL-E with the prompt “cartoon mouse with black ears and a white face, smiling, with exaggerated features.”
AI generated image of "menacing figure with a cybernetic black mask, cape, respirator and holding a glowing laser sword"
A one-off ask in DALL-E with the prompt “menacing figure with a cybernetic black mask, cape, respirator and holding a glowing laser sword.”

See above for two 30-second not-even-trying prompts that are arguably completely innocent, but get within striking distance of the Disney Zone.

Secondary infringement — when you “should” know that you’re infringing, even if the resemblance is innocent or coincidental — is going to be come much more pivotal.

But even secondary infringement in the Copyright Act presumes an author:

  • Secondary infringement(2) It is an infringement of copyright for any person to
    • (a) sell or rent out,(b) distribute to such an extent as to affect prejudicially the owner of the copyright,(c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,(d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or(e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),
    a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.
Copyright Act, III 27(1) – emphasis mine

And/or prompts are going to become pivotal to prove primary infringement.

If AI can’t be an “author” and can still produce works that strongly resemble copyrighted work, I wonder if Compo Co. Ltd. v. Blue Crest Music et al. is going to become much more of a juggernaut in copyright law in Canada — precedence that producing something that violates copyright is itself copyright violation, even if you’re not the producer of the violating work. Even in Compo, the issue resided in the fact that the provider of the work, Canusa, _had_ violated copyright — which isn’t the case with AI.

It’s going to be an interesting decade for IP law…

*yes, of course it’s a reference. And yes, I know it’s not a Darth Vader mask. RIP Doom!