Pamela Samuelson
Pamela Samuelson is an American legal scholar, activist, and philanthropist. She is the Richard M. Sherman '74 Distinguished Professor of Law at the University of California, Berkeley, School of Law, where she has been a member of the faculty since 1996. She holds a joint appointment at the UC Berkeley School of Information. She is a co-founder and chair of Authors Alliance and a co-director of the Berkeley Center for Law and Technology. She is recognized as a pioneer in digital copyright law, intellectual property, cyberlaw and information policy.
Professional history
A 1971 graduate of the University of Hawaii and a 1976 graduate of Yale Law School, Samuelson practiced law as a litigation associate with Willkie Farr & Gallagher before becoming an academic. From 1981 through 1996 she was a member of the faculty at the University of Pittsburgh School of Law, from which she visited at Columbia, Cornell, and Emory Law Schools. Since joining the Berkeley faculty in 1996, she has held visiting professorships at Harvard Law School, NYU School of Law, Toronto Law School, Fordham University School of Law. Since 2002, she has held an honorary professorship at the University of Amsterdam.Samuelson is a past Fellow of the John D and Catherine T. MacArthur Foundation and a member of the American Academy of Arts and Sciences. In 2005, she was awarded the Anita Borg Institute Women of Vision Award for Social Impact, and in 2010 received the IP3 award from Public Knowledge.
Scholarship
Samuelson has published over 300 articles for law, technical, and general audiences, focused mainly on copyright law and preserving balance in copyright law amidst innovation and technological change.Although her work is typically directed at U.S. law, it also includes comparative study of U.S. and European approaches to intellectual property.
AI and copyright
Samuelson has written about two distinct problems that generative AI poses for copyright law. First: when a computer program generates a work, who owns the copyright to that work? In 1985, Samuelson argued that copyright for works created by computer programs should be allocated to the user of the program, rather than to the computer, the programmer, or some combination of those parties. She also forecast that "s 'artificial intelligence' programs become increasingly sophisticated in their role as the 'assistants' of humans in the of a wide range of products... the question of who will own what rights in the 'output' of such programs may well become a hotly contested issue."More recently, the advent of large language models such as ChatGPT has sparked lawsuits by copyright holders over the use of their works as "training" material for the programs. Samuelson has argued that such training may well constitute fair use, and warned that allowing copyright holders to restrict use of their works as training materials would "affect everyone who deploys generative AI, integrates it into their products, and uses it for scientific research."
Mapping and defending fair use
permits the unlicensed use of original expression from copyright-protected works in certain circumstances. However, the flexibility of the doctrine led Judge Pierre Leval to describe it as "mysterious" and lament the perception that it is a "disorderly basket of exceptions".Courts formally assess four factors in determining whether a given use is fair. in 2009, Samuelson augmented that analysis by canvassing the fair use case law and grouping opinions into what she termed "policy-relevant clusters" according to which of the goals of fair use the decision implicates: 1) freedom of speech and of expression; 2) the ongoing progress of authorship 3) learning; 4) access to information; 5) truth telling or truth seeking; 6) competition; 7) technological innovation; and 8) privacy and autonomy interests.
Samuelson's framework has been described as making a "convincing case that fair use may not be as doctrinally incoherent as many have suggested".
Google Books settlement
In 2004, Google initiated the Print Library Project, in which the company partnered with university libraries to scan their entire book collections. Books digitized in the project were searchable in the Google Books engine, where users could view certain information about the books, and "snippets" of text. The Author's Guild and several individual authors filed suit, alleging copyright infringement. In 2008, Google and the Guild announced a settlement agreement, whereby Google could continue to operate Google Book Search, but would have to pay copyright holders for use. Importantly, the settlement would apply to all books.In a letter to the court, Samuelson argued that the settlement was not in the best interests of academic authors. She observed that "academic authors would be inclined to think that scanning books to index them was fair use, not copyright infringement". They would, moreover, "be likely to want their out-of print books to be available on an open access basis rather than through a profit-maximizing scheme such as the GBS settlement proposed." The court eventually rejected the settlement and Google Books was ruled fair use. The court cited Samuelson's letter in holding that the Author's Guild did not adequately represent the interests of all authors.
Founding of Authors Alliance
To enable the promulgation of broader perspectives on copyright policy issues, in 2014, Samuelson co-founded Authors Alliance, a non-profit that "advocates for the interests of authors who want to serve the public good by sharing their creations broadly". Authors Alliance has actively participated in comments to the Copyright Office on its policy initiatives, filed amicus briefs in cases addressing copyright and other information policy issues, and in policy debates at conferences and other events.Work on the merger doctrine under US law
The merger doctrine under UScopyright law is now one of its three pillars. Samuelson explains that this can occur when function and expression merge, including for software: "copyright law has long recognized that when there is only one or a small number of ways to express an idea or function, copyright protection will be withheld to any expression that has merged with the idea or function". Samuelson expands on the merger doctrine and the role that substandard alternatives may play: "courts in numerous merger cases have taken into account whether the alternative expressions were inferior in some way, such as because they were less efficient, impractical, unreasonable, illogical, or contrary to industry expectations. Courts have been wary of forcing later authors to adopt inferior expressions or to engage in needless variations". Samuelson argues that the merger doctrine is being used by judges in certain circumstances to avoid confronting the scope of copyright rules contained in the US Copyright Act itself and specifically §102. More generally, Samuelson indicates that there is a growing reluctance by UScourts to place the "building blocks of knowledge" under copyright protection on a range of public benefit grounds: promotion of completion, promotion of access to information, promotion of freedom of expression, recognition of legislative constraints, avoidance of needless variation, and the enabling of efficiency and standardization. And she opines that the merger doctrine is increasingly being used as the main vehicle for dismissing claims of infringement in these circumstances.Mapping the public domain
Much of Samuelson's scholarship has focused on identifying the goals that motivate a given part of copyright law and using that understanding to create maps and models of copyright's complex doctrinal landscape.Samuelson's 2003 article "Mapping the Digital Public Domain: Threats and Opportunities" conceptualized the public domain as a vast landscape populated with information ranging from discarded grocery lists to Mozart symphonies. Samuelson argued that whether a certain type of information was within the public domain is not merely a matter of legal doctrine but also whether, as a matter of practice and tradition, that information is actually accessible to the public. Samuelson's broader view of the public domain represented a conceptual shift which inspired other work on entitlements and cultural appropriation.