Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U N E 2 0 1 6 35 songs on YouTube. When it finds such songs, the software, called Content ID, would slap an advertisement on the video, and funnel the revenue from the ad to the copyright holder. It's a last-gasp attempt to profit from viral videos featuring copyrighted songs, which are difficult to contain, says Courage. Take for example, the case of Alberta man Robert Wilkinson, who belted out his rendition of the clas- sic Queen song Bohemian Rhapsody while sitting in the back of an RCMP cruiser after police picked him up for drinking and driving. Police recorded the whole thing, and later sent Wilkin- son the video as evidence in his case. Wilkinson then uploaded the video online at the urging of his friends, according to the National Post. Sure enough, it won the heart of the Internet, getting more than 11 million views. The video is dark and blurry, but 15 seconds into the film, a Google advertisement appears on the screen. The strategy works until it doesn't anymore, says Courage, who points out another recent case. A mother of a baby who appeared in a YouTube video dancing to the Prince song Let's Go Crazy recently succeeded in chal- lenging a record label that issued her a takedown notice. The mother argued the video only contained a snippet of the song, and it constituted fair use. Her success "does throw a wrinkle in the use of technology to enforce," says Courage. "If a judgement needs to be made on whether it's fair dealing, you effectively undermined that technology because a human then has to intervene every single time and look at every sin- gle potential infringement. Ultimately, that's not cost-effective . . . to have a human overseeing a Whac-A-Mole game where you take down one and another one comes up." With gaps in both policy and resourc- es to enforce IP, innovators have had to do what they do best — get creative — to manage the burden. Take, for example, the approach by toy company Hasbro, whose My Little Pony brand has found a cult-like following among teenagers and even grown men who've dubbed them- selves "Bronies." Fascinated with the ani- mation and characters in My Little Pony, the fans have taken to using 3D printers to produce their own ponies. Instead of fighting this, Hasbro allows enthusiasts to order their own ponies online via the 3D printing service Shapeways. It's a trade-off — the company gives up some creative control, but it still maintains overall control of the brand. At this point in time, IP infringement as we know it targets human actors. But it's also interesting to consider how devices using artificial intelligence could become implicated in intellectual property enforcement. In the abstract of an article titled Intellectual Property Infringement by Artificial Intelligence Applications, Eran Kahana, a research fellow at Stanford Center for Legal Informatics, says current laws do not recognize infringement without human involvement. "If there is infringement, a human-based 'smoking gun' is a pre- requisite for liability and appropriate remedy," writes Kahana. The need to Untitled-4 1 2016-05-12 2:07 PM intellectual property special report

• Cover