You might be rock solid certain that scraping the web to train an AI is infringing. If you hold those beliefs, you do not understand the "fact intensive" nature of fair use.

But you can learn! It's actually a really cool and interesting and gnarly subject, and it's a favorite of copyright scholars, who have really fascinating disagreements and discussions about the subject.

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These discussions often key off of the controversies of the moment, but inevitably they implicate earlier fights about everything from the piano roll to 2 Live Crew to antiracist retellings of *Gone With the Wind*.

One of the most interesting discussions of fair use you can ask for took place in 2019, when the NYU Engelberg Center on Innovation Law & Policy held a symposium called "Proving IP."

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One of the panels featured dueling musicologists debating the merits of the *Blurred Lines* case. That case marked a turning point in music copyright, with the Marvin Gaye estate successfully suing Robin Thicke and Pharrell Williams for copying the "vibe" of Gaye's "Got to Give it Up."

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Naturally, this discussion featured clips from both songs as the experts - joined by some of America's top copyright scholars - delved into the legal reasoning and future consequences of the case. It would be literally impossible to discuss this case without those clips.

And that's where the problems start: as soon as the symposium was uploaded to Youtube, it was flagged and removed by Content ID, Google's $100,000,000 copyright enforcement system.

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This initial takedown was fully automated, which is how Content ID works: rightsholders upload audio to claim it, and then Content ID removes other videos where that audio appears (rightsholders can also specify that videos with matching clips be demonetized, or that the ad revenue from those videos be diverted to the rightsholders).

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99.99% of the time, that's where the story would end, for many reasons. First of all, most people don't understand fair use well enough to contest the judgment of a cosmically vast, unimaginably rich monopolist who wants to censor their video. Just as importantly, though, is that Content ID is a Byzantine system that is *nearly as complex as fair use*, but it's an entirely private affair, created and adjudicated by another galactic-scale monopolist (Google).

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Google's copyright enforcement system is a cod-legal regime with all the downsides of the law, and a few wrinkles of its own (for example, it's a system without lawyers - just corporate experts doing battle with laypeople). And a single mis-step can result in your video being deleted or your account being permanently deleted, along with every video you've ever posted.

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For people who make their living on audiovisual content, losing your Youtube account is an extinction-level event:

https://www.eff.org/wp/unfiltered-how-youtubes-content-id-discourages-fair-use-and-dictates-what-we-see-online

So for the average Youtuber, Content ID is a kind of Kafka-as-a-Service system that is always avoided and never investigated. But the Engelbert Center isn't your average Youtuber: they boast some of the country's top copyright experts, specializing in exactly the questions Youtube's Content ID is supposed to be adjudicating.

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So naturally, they challenged the takedown - only to have UMG double down. This is par for the course with UMG: they are infamous for refusing to consider fair use in takedown requests. Their stance is so unreasonable that a court actually found them guilty of violating the DMCA's provision against fraudulent takedowns:

https://www.eff.org/cases/lenz-v-universal

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But the DMCA's takedown system is part of the *real* law, while Content ID is a fake law, created and overseen by a tech monopolist, not a court. So the fate of the *Blurred Lines* discussion turned on the Engelberg Center's ability to navigate *both* the law *and* the n-dimensional topology of Content ID's takedown flowchart.

It took more than a year, but eventually, Engelberg prevailed.

Until they didn't.

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