Intellectual Property Insights from Fishman Stewart
Volume 21, Issue 10

A.I. Policing Copyrights

By Kristyn C. Webb

Recently, a story broke about Beverly Hills, California police officers using copyrighted music to avoid video footage of officers’ activities going viral on social media. Activist Sennet Devermont, known for his @mrcheckpoint and @alwaysfilmthepolice Instagram accounts, recently experienced this stratagem. Specifically, Devermont approached an officer at the help desk of the Beverly Hills police station with a question related to a Freedom of Information Act request while live-streaming the encounter to his social media followers. Noticing the conversation was being streamed, the officer picked up his phone and started playing Sublime’s “Santaria.” During another encounter between Devermont and different officers on a different day, it was The Beatles’ “Yesterday.”

This behavior reveals more than the officers’ taste in music. It is an attempt to trigger Instagram’s automated copyright filters and have the video content removed before it can go viral. Like other social media platforms, Instagram uses an automated algorithm to detect and remove potentially copyright-infringing material. These filters are highly sensitive to audio content, and repeated copyright strikes or other violations of the platform’s terms of service can result in the offending account’s suspension or removal.

Platforms use these filters, in part, as a response to the federal Digital Millennium Copyright Act (“DCMA”). The DMCA provides “safe harbors” for internet platforms, such as Instagram, who take active measures to ensure copyright protected media is not unjustly exploited. In exchange for monitoring and removing copyright protected content, music in this case, internet platforms are provided a safe harbor that protects them from some copyright infringement liability. However, unlike when content is removed through successful court action by copyright owners, content removed by a platform’s automated tools do not account for context nor the wishes of such owners.

The debate over automated online filters is complex. Market pressure is growing for platforms to revise their takedown policies and political pressure is escalating for Congress to modernize copyright laws. Progress is slow when it comes to copyright law, and there is no certainty that meaningful reform will occur anytime soon.

In the meantime, it is hard to believe that Sublime would actively enforce their rights against Devermont who posted the infringing content. Considering the group’s lyrics pertaining to policing in Southern California, it is difficult to imagine that the group would take any action other than, perhaps, to retroactively grant Devermont a license. The nuances of copyright law make it difficult for automated tools to accurately enforce on behalf of rightsholders. Internet platforms are also in a bind as they try to balance the needs of their users, the rights of artists, and their own potential liability for copyright infringement. Hopefully, technological improvement and legal reform will naturally resolve these current tensions.

A New Home for Intellectual Property

Fishman Stewart is proud to unveil its new website, FishStewIP.com. Our website has a fresh new look, and we have upgraded more than just the aesthetics. The new website features a white paper library, new convenient client payment methods, and FishStew merchandise, among other new features. Check it out!

Introducing Art Hallman

Please join us in welcoming our new attorney, Art Hallman. Art is a registered patent attorney with a background in engineering. Art holds a B.S. in electrical engineering from Michigan State University, and an MBA and a JD from Wayne State University.

Prior to his transition into the legal world, Art spent eight years working in the automotive industry as a program engineer and intellectual property manager. As an attorney, Art practices in the areas of patent prosecution and litigation.

We are excited to have Art on our team and our clients can expect another strong practitioner to represent their best interests.

IDENTIFYING, SECURING AND ADVANCING CREATIVITY®