These are "fact intensive" questions that the world's top experts struggle with (as anyone who watches the Blurred Lines panel can see). There's no way we can get software to accurately determine when a use is or isn't fair.

That's a question that the entertainment industry itself is increasingly conflicted about.

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The Blurred Lines judgment opened a floodgate to a new kind of troll - grifters who sued the record labels and their biggest stars for taking the "vibe" of songs no one ever heard of. Musicians like Ed Sheeran have been sued for millions over these alleged infringements. These suits caused the record industry to (ahem) change its tune on fair use, insisting that fair use should be broadly interpreted to protect people who made things that were similar to existing works.

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The labels understood that if "vibe rights" became accepted law, they'd end up in the kind of hell that the rest of us enter when we try to post things online - where anything they produce can trigger takedowns, long legal battles, and millions in liability:

https://pluralistic.net/2022/04/08/oh-why/#two-notes-and-running

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But the industry remains *deeply* conflicted over fair use. Take the curious case of Katy Perry's song Horse," which attracted a multimillion-dollar suit from an obscure Christian rapper who claimed that a brief phrase in "Dark Horse" was impermissibly similar to his song "A Joyful Noise."

Perry and her publisher, Warner Chappell, lost the suit and were ordered to pay $2.8m. While they subsequently won an appeal, this definitely put the cold grue up Warner Chappell's back.

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They could see a long future of similar suits launched by treasure hunters hoping for a quick settlement.

But here's where it gets unbelievably weird and darkly funny. A Youtuber named Adam Neely made a wildly successful viral video about the suit, taking Perry's side and defending her song. As part of that video, Neely included a few seconds' worth of "A Joyful Noise," the song that Perry was accused of copying.

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In other words, they maintained that the song that they'd told a court was totally dissimilar to their own was so indistinguishable from their song that they couldn't tell the difference!

Now, this question of vibes, similarity and fair use has only gotten *more* intense since the takedown of Neely's video. Just this week, the RIAA sued several AI companies, claiming that the songs the AI shits out are infringingly similar to tracks in their catalog:

https://www.rollingstone.com/music/music-news/record-labels-sue-music-generators-suno-and-udio-1235042056/

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Even before "Blurred Lines," this was a difficult fair use question to answer, with lots of chewy nuances. Just ask George Harrison:

https://en.wikipedia.org/wiki/My_Sweet_Lord

But as the Engelberg panel's cohort of dueling musicologists and renowned copyright experts proved, this question only gets harder as time goes by. If you listen to that panel (if you *can* listen to that panel), you'll be hard pressed to come away with any certainty about the questions in this latest lawsuit.

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The notice-and-takedown system is what's known as an "intermediary liability" rule. Platforms are "intermediaries" in that they connect end users with each other and with businesses. Ebay and Etsy and Amazon connect buyers and sellers; Facebook and Google and Tiktok connect performers, advertisers and publishers with audiences and so on.

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For copyright, notice-and-takedown gives platforms a "safe harbor." A platform doesn't *have* to remove material after an allegation of infringement, but if they don't, they're jointly liable for any future judgment. In other words, Youtube isn't required to take down the Engelberg Blurred Lines panel, but if UMG sues Engelberg and wins a judgment, Google will also have to pay out.

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During the adoption of the 1996 WIPO treaties and the 1998 US DMCA, this safe harbor rule was characterized as a balance between the rights of the public to publish online and the interest of rightsholders whose material might be infringed upon. The idea was that things that were likely to be infringing would be immediately removed once the platform received a notification, but that platforms would ignore spurious or obviously fraudulent takedowns.

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