Copyright for Literate Robots

• Author: James Grimmelmann
• Position: Professor of Law, University of Maryland Francis King Carey School of Law
• Pages: 657-681

657

Copyright for Literate Robots

James Grimmelmann*

I. INTRODUCTION ............................................................................. 657

II. HUMAN COPYRIGHT ...................................................................... 658

III. ROBOTIC COPYRIGHT .................................................................... 661

A. NON-EXPRESSIVE READING ....................................................... 661

B. BULK READING ........................................................................ 665

C. BEYOND FAIR USE .................................................................... 668

IV. POSTHUMAN COPYRIGHT .............................................................. 674

V. CONCLUSION ................................................................................ 681

I. INTRODUCTION

Almost by accident, copyright law has concluded that it is for humans

only: reading performed by computers doesn’t count as infringement.

Conceptually, this makes sense: Copyright’s ideal of romantic readership

involves humans writing for other humans. But in an age when more and

more manipulation of copyrighted works is carried out by automated

processes, this split between human reading (infringement) and robotic

reading (exempt) has odd consequences: it pulls us toward a copyright system

in which humans occupy a surprisingly peripheral place. This Article

describes the shifts in fair use law that brought us here and reflects on the role

of robots in copyright’s cosmology.

* Professor of Law, University of Maryland Francis King Carey School of Law. My thanks

to Aislinn Black, Annemarie Bridy, Jake Linford, Fred von Lohmann, Tom Rubin, Matthew Sag,

Evan Selinger, and the participants in the 2015 Works in Progress Intellectual Property

Colloquium for their suggestions. After January 1, 2016, this Article is available for reuse under

the Creative Commons Attribution 4.0 International license, https://creativecommons.org/

licenses/by/4.0.

658 IOWA LAW REVIEW [Vol. 101:657

II. HUMAN COPYRIGHT

Quietly, invisibly almost by accident, copyright has concluded that

reading by robots doesn’t count. Infringement is for humans only; when

computers do it, it’s fair use. This is an article about how it happened and

some of the implications.

To understand robotic readership, we should start by talking about

human authorship,1 or more specifically, the ideal of “romantic” authorship.2

The name is not to suggest that there is something swoon-inducing about

picking up a pen, but rather that the sort of creativity copyright concerns itself

with is the product of a specific human mind. To quote a famous passage from

Justice Holmes, “The copy is the personal reaction of an individual upon

nature. Personality always contains something unique. It expresses its

singularity even in handwriting, and a very modest grade of art has in it

something irreducible, which is one man’s alone. That something he may

copyright . . . .”3

Human readership, on this view, is engagement with an author’s

expression. Copyright insists, for example, that substantial similarity for

infringement purposes is a matter of readers’ perceptions of works, rather

than inhering in the works themselves.4 To quote an equally famous passage

from Judge Learned Hand, a defendant’s work infringes on the plaintiff’s if

“the ordinary observer, unless he set out to detect the disparities, would be

disposed to overlook them, and regard their aesthetic appeal as the same.”5

In an important sense, copyright embraces an ideal of romantic readership

that is the dual of romantic authorship. What readers are deemed to care

about in a work of authorship as a copyrightable work—what makes it valuable

1. I will use “reading” generically to refer to the whole range of ways in which one can

experience a work: reading, listening, watching, glancing, observing from all angles, and so on.

For reasons that will become clear, textual works are at the heart of the transformation this Article

traces. I will also use “robot” to refer to computer programs as well as mechanical devices; that

usage fight has already been lost.

2. See, e.g., MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993)

(discussing the rise of authorship and literary property in England); James Boyle, A Theory of Law

and Information: Copyright, Spleens, Blackmail, and Insider Trading, 80 CALIF. L. REV. 1413, 1467–70

(1992) (discussing the role of “originality” in American copyright law); Peter Jaszi, Toward a

Theory of Copyright: The Metamorphoses of “Authorship,” 1991 DUKE L.J. 455 (discussing use of

concept in contemporary copyright law); Martha Woodmansee, The Genius and the Copyright:

Economic and Legal Conditions of the Emergence of the “Author,” 17 EIGHTEENTH-CENTURY STUD. 425

(1984) (tracing the historical emergence of the romantic author ideal in Germany).

3. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903).

4. See Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004) (explaining that “subjective

intrinsic test” of similarity “must be left to the jury”); Jeanne C. Fromer & Mark A. Lemley, The

Audience in Intellectual Property Infringement, 112 MICH. L. REV. 1251, 1267–73 (2014).

5. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).