One Way AI is Definitely Like Napster

Earlier this week, news came out that a U.S. Judge declined to dismiss a lawsuit filed by Thomson Reuters against the AI firm Ross Intelligence. This sets the stage for the case to go to a likely trial, where a jury would decide fair use and other issues presented in the case.

The facts of the case are straightforward enough. Reuters sued Ross in 2020, alleging that the AI company unlawfully used headnotes created by the Reuters-owned legal service, Westlaw, when training their AI system.

Ross claims that it only used the headnotes as a tool to locate cases and that the end product does not directly compete with Westlaw. However, Reuters claims that Ross copied the content to make a direct competitor to their service.

Ross was hoping that the judge would rule their actions a fair use and dismiss the case. However, the judge has instead decided that these are issues for a jury and that he cannot determine whether it was a fair use or if Ross’ actions were in the public interest.

However, you could be forgiven if you hadn’t heard of this case before now. In fact, you could be forgiven if you hadn’t heard of Reuters, Westlaw or Ross Intelligence. The story simply didn’t make many headlines outside legal publications until this decision.

The reasons for this are complex, but speak to why news stories, in particular copyright-related news stories, get significant media coverage. 

To that end, those who remember the rise and fall of Napster likely can draw an easy parallel between what happened in the late 1990s/early 2000s and today.

Party Like It’s 1999

On December 7, 1999, a consortium of 18 record labels, all members of the RIAA, filed a lawsuit against Napster, alleging that the file sharing service was liable for the widespread copyright infringement that was taking place on it.

However, the lawsuit wasn’t widely reported on. Much of the coverage the lawsuit has received has been in retrospectives, looking back at how the legal drama unfolded. 

Instead, the headlines would come four months later when Metallica filed their own lawsuit against Napster. The reasons for this were twofold, in the months between the lawsuits, Napster had grown significantly both in terms of user base and in terms of public awareness. Second, though few knew who the RIAA was in the year 2000, Metallica was one of the biggest names in music.

The Metallica lawsuit was widely covered by all mainstream media outlets. It was also the subject of endless memes, parodies and other public discourse. However, for all the attention the case received, it ended up being largely moot.

The case filed by the record labels was first to court and ended up securing an injunction against Napster in August 2000. That injunction was upheld in February 2001 and directly led to the closure of the service in July of that year.

Though Metallica made all the headlines, it was the record labels that actually destroyed the original incarnation of Napster.

It’s difficult to not look at the recent AI-related cases and see some definite parallels.

Under the Radar

The Reuters case generated very little news attention when it was filed in 2020. It was an easy case to miss, even if you are someone active in copyright or AI circles.

However, recently, we’ve seen a slew of news coverage of lawsuits filed against various modern AI companies. The lawsuits include plaintiffs such as George R.R. Martin, Sarah Silverman and Michael Chabon to name a few.   

The reason that those news stories became so popular is, again, twofold. First, OpenAI launched ChatGPT to the public in November 2022. That put generative AI into the hands of the public, capturing widespread public attention for the topic of AI broadly. 

Second, few people both know and care about Thompson Reuters, Westlaw or Ross Intelligence. Though they aren’t obscure companies, knowledge of them is fairly niche and, even then, they aren’t names people often get particularly passionate about. Furthermore, Ross Intelligence has been shuttered since 2021, citing the cost of litigation.

However, this isn’t an issue that’s just relevant to Napster and AI. The coverage of copyright cases has always been more about the litigants involved rather than the actual importance of the decisions. 

A good example of this is the 2015 Blurred Lines case. The case, which saw the estate of Marvin Gaye win a $5.3 million jury award against Robin Thicke and others involved in the July 2013 song Blurred Lines.

The case received tremendous amounts of attention in the media simply because of the celebrity of both Thicke and Gaye, as well as the popularity of the song involved. The outcome, which was a surprise to many, simply threw that coverage into overdrive.

However, the case was never an important one from a broad copyright perspective. The outcome was highly fact-specific and was unlikely to represent a major shift in copyright thinking. 

This was highlighted by the fact that, by April 2020, we had seen a large number of cases that, though seemingly similar, generated very different outcomes. Much of the fear and concern that the case generated was completely unnecessary. 

That, in turn, is the problem with celebrity-focused coverage of copyright news. It gives people a false sense of what is going on in the space and causes them to focus on the wrong issues.

Bottom Line

To be clear, I’m not saying that the lawsuits filed against OpenAI aren’t important and won’t have an impact. The facts of the cases are different, they involve different defendants and address different questions. 

However, what I am saying is that they won’t be the first rulings in this space, and they won’t likely set the tone for the legal battles ahead. The Reuters case is much farther along and, barring a settlement, will reach a trial well before any of the ones filed this year.

Likewise, I don’t want to claim innocence here. I, like many others, have definitely chosen which stories I cover based on both the parties involved and how much interest there is. Stories about celebrities get clicks and, frankly, they can be impossible to ignore as they are what everyone else is also talking about. If I don’t write about these stories, I get inundated with questions about them.

Instead, I’ve tried to cover the stories, but frame them as best that I can. It’s a difficult balance, and one that I know I’ve handled imperfectly. But, with other coverage, there’s rarely even such an attempt to put things in context.

That, in turn, has the impact of giving the public a false sense of what copyright stories are actually important. Though there are times where the two overlap, such as the Warhol case, we instead get a deluge of stories about celebrities being sued over Instagram photos or musicians being sued, largely unsuccessfully, by lesser-known artists who claim infringement.

With the internet and virtually everyone being a publisher before a global audience, there’s a need for most people to have a basic understanding of copyright. That need will never be served by celebrity-focused news coverage that focuses either on already-established issues or irrelevant ones.

Simply put, copyright news is rarely sexy or holds much mass appeal. However, that doesn’t make it any less important. It just makes it more difficult to get it the coverage that it needs.

In our current hyper-competitive news market, there’s no easy answer here. Clicks are king and what draws attention rarely overlaps with what is important, at least when it comes to copyright.

Header Image: Njahnke, CC BY-SA 4.0, via Wikimedia Commons