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Cardozo Law Review

Abstract

In 1966, a court considered expressly whether a secondary use of copyrighted works served a public benefit. While public benefit has become a subfactor of the fair use doctrine, it remains undefined, uncodified, and undertheorized. Courts often invoked public benefit in pivotal cases involving novel technologies, from home video recorders to digital libraries to algorithms—but they did not need to. After the recent Supreme Court decision in Google v. Oracle, however, public benefit is unavoidable: The Court stated that “we must take into account the public benefits the copying will likely produce.” A qualitative analysis of key public benefit cases assessing novel technologies reveals five emergent values: expression, knowledge, entertainment, competition, and efficiency. Forthcoming judicial decisions about the latest novel technology, artificial intelligence (AI), will be shaped by these cases. However, mid-aughts decisions about “public benefit” algorithms expose an “FU” long lurking in fair use: Name aside, there is nothing particularly fair about it. Those cases excused privacy-invasive, coercive, and biased AI systems as efficient when finding them to be fair use. Many scholars have written about the unfairness of fair use, and this Article contributes to those conversations by using a feminist cyberlaw lens to critique the practice of dubbing technologies “public benefits” without acknowledging, let alone assessing, countervailing public harms. A public benefit that ignores public harms is incomplete. Purported fair uses, particularly those underpinning AI systems, can amplify bias, dis/misinformation, and environmental destruction—harms that are predictable, preventable, and passed over by public benefit presently. This Article responds by recalibrating public benefit to better account for these and other public harms. It defines a fairer public benefit and develops a framework for realizing it. Defining a fairer public benefit poses challenges. In courts, public harms have already happened when matters are litigated, placing a premium on compensation rather than prevention. Congress could codify public benefit, but it is unlikely that Congress could agree upon a satisfactory definition. To further complicate matters, neither judges nor legislators have duties of sociotechnical competency. But lawyers do. Client-centered counseling could facilitate a fairer public benefit if there was a framework for doing so. This Article proposes one: FAIRR (pronounced “fairer”), a mnemonic for formalize purpose, assess benefits, identify harms, reconsider those benefits in light of those harms, and report to the client. Inspired by computer science’s threat modeling methodology, FAIRR represents a rigorous, repeatable method for analyzing how infringement liability, public perception, and social progress are affected by public benefits and public harms. By deconstructing the inequities embedded in public benefit as it exists now and developing a fairer alternative for the future, this Article helps lawyers shape better technologies.

Disciplines

Intellectual Property Law | Law | Privacy Law

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