The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of the Warhol framework. This article assesses the potential fair use analysis for generative AI applications in light of Warhol’s analytical framework. The central question in Warhol is the scope of transformative use versus a use that is derivative and which supplants a market for the original copyrighted work. Whether the use of copyrighted material to “train” AI programs and the products of AI programs are likely to found to be transformative in light of the Warhol framework is an intensely factual inquiry. This article concludes that the use of copyrighted material as inputs for training AI programs is — by itself—likely to be found to be a transformative fair use in most circumstances. The more difficult question is how AI outputs are analyzed. Fair use is necessarily a case-by-case inquiry. In light of cases like Warhol and Google v. Oracle, the analysis will turn on a series of considerations that are identified in this article. It is likely that the fair use question will be litigated frequently in the context of AI outputs, which can involve myriad factual scenarios.
Washington and Lee Law Review - Online Edition
Note
by Simon Ciccarillo
Across the United States, a countless number of people rely on groundwater for basic necessities such as eating, drinking, agriculture, and energy-creation. At the same time, overuse combined with increasingly dry conditions throughout the country, tied to the increasingly unpredictable and devastating impacts of climate change, threaten this fundamental building block of society. Nowhere is this problem more pernicious than the American Southwest. The Colorado River Basin has always been the epicenter of water disputes between communities and states. Bad policies, unhelpful federal actions, and sluggish Supreme Court decisions stop the painful but necessary steps to address the increasingly dire water shortage. At the center of this crisis are two opposing camps that stand to gain or lose much. California, with the weight of history is on one side, while Arizona and Nevada, often disadvantaged, occupy the other. Yet these underdog states may have a way to escape the unjust outcomes that have hounded them to this point. If Arizona and Nevada choose, recent Supreme Court decisions provide the ammunition needed to finally create a fair and equitable distribution of water in the Southwest, and break California’s oppressive control over the lion’s share of Colorado River Basin water.
Note
by Tom Boss
Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all the Courts of Appeals have rejected this theory, finding that removal on federal common law grounds is improper and remanding to state courts. But herein lies the problem. On remand, nothing stops the state courts from adopting the defendants’ theory. Essentially, the defendants are permitted to relitigate their preemption argument after a federal court holds that federal law does not apply.
This Note argues for the adoption of a new rule of preclusion that would apply in these cases. Where a federal court determines that federal law does not cover the claims, that judgment should have issue preclusive effect in a subsequent state court proceeding on an ordinary preemption defense. This is because a finding of no jurisdiction by a federal court necessarily entails a finding that federal law does not cover, and thus preempt, the state law claims. This rule would serve to simultaneously preserve the balance of federalism, keeping state claims in state courts and allowing only federal claims in federal courts, as well as preventing dismissals on inconsistent judgments. This rule would also preserve a fundamental notion of justice in the American legal system; it would allow the climate tort plaintiffs to finally have their day in court.
Note
by Bernadette M. Coyle
In an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic abuse, and proposing comprehensive solutions to enhance transparency and promote fairness and justice.
Note
by Alicia Ochsner Utt
After fifty years of a failed war on drugs, many states are just now beginning to take steps toward attempting to repair a half-century of harm. By examining the response of Washington’s government at the executive and legislative levels to the Washington Supreme Court’s decision in State v. Blake, this Note identifies some key factors that must be present in the paths forward for all states in their own processes of reform. The stakeholders involved in transforming the criminal legal system must ensure that relief from prior drug-related convictions is automatic, geographically standardized, and complete. Any form of relief must include the right to the assistance of counsel. Lawmakers and other stakeholders must also consider the inadequacy of simply substituting misdemeanor convictions for felony convictions. Finally, any large-scale reform of the criminal legal system must include input from the people most affected by the failed war on drugs. This is an opportunity to embrace truly bold and meaningful reform. By applying the factors identified in this Note to any legislation tackling the fallout of Blake, Washington can live up to the promise of the decision and lead the way in the national process of creating a fair and equitable criminal justice system.
Development
by Max Stul Oppenheimer
The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. That position has recently been upheld by a federal court. This article argues that the Constitution and current statutes do not compel that result, that the denial of protection will hinder innovation, and that if intellectual property rights are to be limited to human innovators that policy decision should be made by Congress, not an administrative agency or a court.
Roundtable
by Alan Trammell, Samuel Calhoun, Ben Davis & Helen Alvare
The 2021 Supreme Court term created shockwaves by overturning Roe v. Wade, 410 U.S. 113 (1973). The Washington & Lee School of Law Federalist Society chapter brought together Professors Helen M. Alvaré of George Mason University Antonin Scalia School of Law, and Professors Samuel Calhoun, Alan Trammell and Ben Davis of Washington & Lee School of Law to discuss the far-reaching ramifications ofDobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022). The panel was moderated by Haley Carter ‘24L, the W&L Federalist Society Vice President. Each panelist addressed aspects of the decision relevant to their areas of expertise. The discussion included how the Fourteenth Amendment could be used to create a right to life for the unborn, how Dobbs may alter any substantive due process cases and rights moving forward, how the law should consider women’s rights when women themselves are split on the issue of abortion, and how abortion restrictions could violate international human rights law. The product resulted in a diverse and balanced discussion of the Supreme Court’s decision last June.
To access the recording: https://wlu.box.com/s/dff9ij612t0a94o1lbgzfad4an1knd04
Development
by Margaret Ryznar
Invaluable guidance has emerged regarding online teaching in recent years, but less so concerning online and take-home final exams. This article offers various methods to administer such exams while maintaining their integrity—after asking artificial intelligence writing tool ChatGPT for its views on the matter. The sophisticated response of the chatbot, which students can use in their written work, only raises the stakes of figuring out how to administer exams fairly.
Note
by Shanelle Doher
Over the past two decades, social media has dramatically changed the way people communicate. With the increased popularity of virtual communication, online speech has, in many ways, blurred the boundaries for where and when speech begins and ends. The distinction between on campus and off campus student speech has become particularly murky given the normalization of virtual learning environments as a result of the COVID 19 pandemic. In Tinker v. Des Moines Independent Community School District, the Supreme Court clarified that students retain their First Amendment rights on campus but that schools may sanction speech that materially and substantially disrupts or interferes with school activities. However, prior to 2021, the Court had never directly addressed whether a school’s capacity to sanction speech extended off campus. This changed with Mahanoy Area School District v. B. L., where the Court implemented a heightened Tinker standard for off campus speech, indicating some hesitation to extend school authority to cyberspace.
As monumental as the decision is, it is unlikely that Mahanoy will do much to safeguard professional students’ First Amendment rights. In the fifty years following Tinker, the Supreme Court has consistently denied certiorari in cases involving professional student speech, whether on or off campus. In the absence of such guidance, appellate courts have struggled with how and to what extent to apply Tinker and its progeny to professional programs. This has led to inconsistent judicial approaches—almost all favoring universities—that provide professional students with little guidance or reassurance in the strength of their constitutional rights.
This Note argues that courts have failed to protect professional students’ First Amendment speech rights, both on and off campus. The method by which appellate courts have analyzed and applied these doctrines suggests that bad facts are creating bad, or at least incomplete, law. By carefully examining student speech doctrines before exploring professional student speech decisions, this Note asserts that appellate courts have performed relatively cursory reviews of Tinker and its progeny, resulting in misrepresentations of the Supreme Court’s precedent. However, this Note proposes that this is an avoidable outcome that careful, rhetorical analysis of Supreme Court precedent can rectify. When properly analyzed, student speech doctrines should provide a sufficient basis to reliably evaluate professional student speech, so long as courts consider the special characteristics of the professional school environment.
Development
by Mark T. Wilhelm & Danielle Clifford
Beginning in March of 2020, public companies in the United States were forced to take unprecedented measures to observe corporate formalities while following the government-mandated health and safety measures resulting from the COVID-19 pandemic. Those measures made in-person activities and meetings either incredibly challenging or, in certain jurisdictions, illegal. Because “proxy season,” the time when public companies typically hold their annual meetings of stockholders, followed shortly after the mass implementation of COVID-19 lockdowns and quarantines, public companies that had historically held these meetings in-person were left scrambling to find an alternative means to meet. Nearly overnight, the pandemic caused an explosive transition from in-person annual meetings to virtual annual meetings. This article examines that trend, both qualitatively and quantitatively.
More specifically, this article presents the results of primary research that quantifies the prevalence of virtual annual meetings before, during and (depending on one’s view of the current state of affairs) after the height of the COVID-19 pandemic. The results are offered using a series of different metrics to provide a comprehensive picture regarding the sudden transition and theorizes a new normal in one of the most important investor-relations tools available to public companies.