Day 3 Thoughts

Tyler: I am wondering if the terms in AMT's conditions of use that works prepared by turkers are to be considered works for hire would be considered valid. My initial instinct is that it would not necessarily be so.

To paraphrase, the Copyright Act defines a work for hire as (17 U.S.C. 101):

• 1) a work prepared by an employee within the scope of his or her employment
  • The factors to make determination were listed in the CCNV v Reid case (790 U.S. 730, 1989)
    • The two most important factors are provision of employee benefits and tax treatment (from Aymes v. Bonelli, 980 F.2d 857, 1992)
• OR 2) a work specially ordered or commissioned for use as a contribution to a collective work if:
  • 1. category: is one of:
    • part of a motion picture or other audiovisual work
    • a translation
    • a supplementary work – adjunct to a work made by another author
    • a compilation
    • an instructional text – systematic instructional activities
    • a test
    • answer material for a test
    • an atlas
  • 2. intent: if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire

must fit into one of the 8 categories to be a contracted work made for hire (p132) Most work produced for HITs would not seem to fall into either of these categories.

Michael: I think many works produced through HITs are going to be considered compilations or collective works. Certainly David's Sheep or 100 Dollar Bill are compilations so long as they are taken as a whole. Even in any attempt to monetize the individual elements, the Turk Participation Agreement states that any works which cannot be considered works for hire are assigned to the requester. (full text copied below)

Section 3(a): "As a Provider, the Requester for whom you provide Services is your client, and as such, you agree that the work product of any Services you perform is deemed a "work made for hire" for the benefit of the Requester, and all ownership rights, including worldwide intellectual property rights, will vest with the Requester immediately upon your performance of the Service. To the extent any such rights do not vest in Requester under applicable law, you hereby assign or exclusively grant (without the right to any compensation) all right, title and interest, including all intellectual property rights, to such work product to Requester." The full policy can be found here.

Jason: Michael just sort of stole my mojo - I was about to say a similar thing - but Tyler, I guess I too don't see why you think HITs are not works-for-hire under test 2. Take the book about cats: it seems to me that Bjoern specifically ordered those stories for his compilation, which would fall under the rule. I guess there could be a problem of asymmetry if both parties need to know that they work is being commissioned, since in many cases only the commissioner might know what it's being used for. But given the Mechanical Turk terms of service that Michael reproduces above - which probably constitutes a "written instrument" - I think the Turker would be hard-pressed to argue that he had zero notice, even if he didn't know specifically what his work would be used for.

Andrew: I think there's certainly enough wiggle room in the words "specially ordered or commissioned" to support a claim that the AMT contract does not effect WMFH status, at least in some cases. Take the cats book: When it was ordered, Bjorn himself didn't know what he was going to do with the cats when he got them. How could he argue that he had "specially ordered or commissioned" them for that compilation at the time of the contract? More generally, I think the 'meeting of the minds' aspect is more important than Jason suggests, given that it's the basis of so much doctrine in contract interpretation. That is, I think it's an open question whether a task which the performer does not know to have a certain purpose can be said to be "specially ordered or commissioned" for that purpose with regard to the written instrument.

Sharona: While I agree with Jason and Michael that this is probably a work made for hire, do you think this may run into contracts of adhesion problems? Or, do you think if the average turker was aware of what his "original" (after all, to be copyrightable, it must be original) work would be used for, he would have agreed to the Participation Agreement? Does it matter?

Tyler: To follow up on my original thought, I agree that an argument could be made for HITs to be WMFH, but I see big problems with the "specially ordered or commissioned" language as Andrew mentioned. Also, I'm not sure mention in the terms of service would qualify as a written instrument signed by both parties.