Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

A Techno-Realist Response to the Techno-Optimist Manifesto

During Thanksgiving break 2013, when this blog was still new, I wrote a post in response to the techno-exceptionalism expressed by then Google Chairman Eric Schmidt and co-author Jared Cohen. Drawing parallels to the mythology of the Puritan adventure to North America, I found fault—as I still do—with the blind faith we were asked to place in the leadership of major tech companies on the grounds that their products could only have healthy effects for the world. Ten years later, the money behind artificial intelligence (AI), namely the VC firm Andreesen Horowitz, seeks to rally the faithful with the Techno-Optimist Manifesto (TOM), which begins by alleging that the following views are “lies”:

We are told that technology takes our jobs, reduces our wages, increases inequality, threatens our health, ruins the environment, degrades our society, corrupts our children, impairs our humanity, threatens our future, and is ever on the verge of ruining everything.

In fact, most of these outcomes have occurred in various forms over the last decade or so, though I would be inclined to more specific citations like new modes of harassment, mass theft of intellectual property, unprecedented privacy invasions, and rampant misinformation still threatening the fate of the American republic—the failure of which would indeed ruin everything. Tellingly, this opening salvo of the TOM is a prelude to broad lies of omission—first, by defending “technology” in general; and second, by implying that technological advancement is solely a product of capitalist models. Disguised by a general defense of technology (which needs no defense), the TOM’s purpose, it seems, is to warn against regulation of artificial intelligence, in which the authors and their friends have invested billions.

In response to the overall theme of the TOM, the rational truth is that, of course, we can have automobiles and breathable air at the same time, but such outcomes (which are technological achievements themselves) must sometimes be forced upon industry. And this is not wholly incompatible with free-market principles. When Henry Heinz founded his food company, he fulfilled a market need for products made from properly sourced and packaged ingredients in an era when food was often as unsafe as it was unsavory. With his early success came copycats, who cut corners with adulterated ingredients, and in response, Heinz dispatched his attorney son, Howard, to lobby Congress for food safety regulation.[1] No question, Heinz had a business motive, but the result was the legislative foundation for what became the FDA. The TOM ignores, if not outright scorns, such histories when it declares:

David Friedman points out that people only do things for other people for three reasons – love, money, or force. Love doesn’t scale, so the economy can only run on money or force. The force experiment has been run and found wanting. Let’s stick with money.

The “force experiment” in this instance is code for regulation, and no, regulation has not been “found wanting,” at least not to the extent that we can presume to live without it. Regulation is imperfect, as all systems are. Surely, the FDA is no guarantee that every meal we eat and pill we swallow will be 100% beneficial, but does this mean we are willing to simply trust the producers of these goods to self-regulate in our interests? The “You drink the water” scene in Erin Brockovich comes to mind.

It seems the authors of the TOM have spent too much time reciting the Tao of Ayn Rand, forgetting that “money” cuts both ways as a motivator, either serving or disserving the public interest, depending on which is the more profitable, and for which parties. Were this not the case, the market opportunity to develop technological solutions to climate change would have overwhelmed the market resistance to those solutions almost twenty years ago.

Now, with billions invested in artificial intelligence, the TOM presents a new sermon (on Mt. Gox?) demanding blind faith in AI’s capacity to make the world work better. And, yes, AI systems can potentially solve problems and improve the quality of life for more people. Many of the principles articulated in the TOM are well-founded, at least in spirit, because, of course, technology itself is not the problem. People are the problem. At best, people are diverse and do not fit neatly into anyone’s utopian construct; and at worst, people cannot be trusted, least of all those who write manifestos. Thus, the hubristic religiosity of the TOM suffers from the same magical thinking inherent to works as disparate as John Winthrop’s “City on a Hill” sermon, The Communist Manifesto, and Atlas Shrugged.

“I am here to bring the good news,” the TOM proclaims, cribbing the doorstep preamble of a Jehovah’s Witness. “We can advance to a far superior way of living, and of being. We have the tools, the systems, the ideas. We have the will.” Yes, but do they have the moral compass necessary to wield so much power without oversight? More accurately, does anybody deserve that level of trust? For us to assume that the forces behind AI development will only have the best intentions is naïve; for them to assume that they will faithfully achieve such outcomes is arrogant. For example, the TOM recites the following petitions, all but asking for a “Lord, hear our prayer” after each line:

We had a problem of starvation, so we invented the Green Revolution.

We had a problem of darkness, so we invented electric lighting.

We had a problem of cold, so we invented indoor heating.

We had a problem of heat, so we invented air conditioning.

We had a problem of isolation, so we invented the Internet.

We had a problem of pandemics, so we invented vaccines.

We have a problem of poverty, so we invent technology to create abundance.

Give us a real world problem, and we can invent technology that will solve it.

One could unpack the absurd implications of several items on that list—from the authors taking credit for Norman Borlaug[2] to the claim that the internet was invented to solve isolation to the mention of vaccines, in which trust has eroded thanks largely to “connections” enabled by the internet. But the broader point is that AI is not like inventions of the past. AI has the potential to transform every aspect of human existence, and Big Tech’s record offers no reason to grant the developers and their investors the kind of trust the TOM demands. After all, the manifesto represents many of the same folks who promised that their designs for Web 2.0 would elevate the human experience with mega doses of free-range “information,” and yet, that experiment (modest compared to AI) has imperiled democracy worldwide.

“We believe technology opens the space of what it can mean to be human,” the TOM states. Interesting. Because here, it seems appropriate to remind readers that these same Keynesian prophets of “abundance,” just a few years ago, divined a future of leisure in which humans would be free to engage in creative pursuits rather than labor. As such, it is notable that the headline AI stories have been about generative AIs designed to produce “creative” works, which is one thing we don’t need machines to do, and which solves not a single problem while creating new ones. In this light, it is hard to believe that these techno-optimists are not simply covering their bets on new toys of questionable value and calling it “innovation.”

[1] The Food That Built America, History Channel 

[2] Notably, Borlaug’s “green revolution,” which transformed the wheat harvest, saved a billion lives, and earned him the Nobel Prize in 1970, was funded by the Mexican Government and the Rockefeller Foundation. One could argue that the latter is a consequence of capitalism, but the TOM makes an argument that for-profit investment is the only model.

Image by: agsandrew

On the Use of AI Likeness in Motion Pictures

In my book, published in 2020, I speculated about a biopic made with an AI-generated likeness of Carrie Fisher; and this week, Variety reports that a motion picture about Edith Piaf is now in development that will use AI-generated likenesses of the famed torch singer. So, now that the hypothetical is reality, what are the considerations beyond the obvious loss of job opportunities for performers to play these roles?

One possibility, of course, is that audiences won’t respond well to this approach to biopic. Part of the appeal of the genre is watching a skilled actor play an important, beloved, or even detested figure. I can only speculate about what would be lost if, for instance, the motion picture Ray did not feature Jamie Foxx becoming Mr. Charles, but my instinct is that the overall experience for the viewer would be diluted. This is not to say that new forms of expression will not emerge from experimenting with AI likenesses (e.g., CGI already features in reenactment sequences for documentary projects), but these are aesthetic and market considerations. What about the ethical or legal questions?

Mostly Not a Copyright Matter

To begin, the right to dramatize a real person’s story in a motion picture is not necessarily a copyright matter. Copyright applies if, for instance, biographical material has already been written (or otherwise recorded) because copyright only attaches to a work fixed in a tangible medium of expression. So, if a film is based substantially on a single biographical book about Edith Piaf, then the film is arguably a “derivative work” of the book, and the book’s author reserves the right to allow production of the film. That said, facts are not protected by copyright law (i.e., many authors can write biographies about the same figure), and a biopic can be produced based on an original screenplay encompassing the writers’ own research into the subject.

Rights of Publicity

I mention all that to distinguish copyright rights from what are often referred to as “life rights,” a broad, industry term that is often viewed as adjacent to state law rights of publicity (ROP). Importantly, though, ROP entails use of a likeness, which does not cover use of biographical information for the purpose of portraying a real person as a character. While it is often wise (and courteous) to obtain permission to use part or all of someone’s story in a motion picture, individuals do not have absolute control over such portrayals, especially if they are public figures and the depictions are based on an available record. If the law held otherwise, the Trump family could, for instance, exert control over all dramatizations of The Donald, and any future biopics would basically be remakes of The Greatest Story Ever Told.

Of course, there are certain limits. Although the bar for defamation or libel can be high, a motion picture portrayal of a real person can trigger a valid claim of this nature, and it is interesting to ask whether these considerations may be different when the producer uses an AI-generated likeness to perform a potentially damaging scene. Biopics often interpolate the narrative by producing scenes or dialogue that are plausible but not necessarily factual. In this context, then, might the additional step toward “reality” with the use of an AI-generated likeness of the subject alter the burden on the producer to adhere more faithfully to the record?

ROP laws vary state-by-state, and are statutory in half the states, but nowhere do they apply to an expressive use of a likeness in contrast to a commercial advertising use. You might have read that Scarlett Johansson is suing app developer Lisa AI for use of her generated likeness in a social media ad posted on X. Variety describes the facts thus:

The ad, reviewed by Variety, begins with an old clip of Johansson behind the scenes of Marvel’s “Black Widow.” Johansson says, “What’s up guys? It’s Scarlett and I want you to come with me…” before a graphic covers her mouth and the screen transitions into AI-generated photos that resemble the actor. A fake voice imitating Johansson then continues speaking, promoting the AI app. “It’s not limited to avatars only. You can also create images with texts and even your AI videos. I think you shouldn’t miss it,” says a voice that sounds like Johansson.

Based on that description, this sounds like a textbook violation of Johansson’s ROP, using her likeness for the purpose of advertising, and there could also be a violation of Disney’s copyright for use of the Black Widow clip. This is not the first story of its kind to emerge concurrent with recent advances in AI, and I believe that companies using celebrity likenesses in this way should face damage awards and injunctions sufficient to achieve deterrence. If Johansson et al. do not seek punitive outcomes in these cases, then the violation and litigation can become promotional opportunities for the infringing companies—a strategy right out of the Silicon Valley playbook:  infringe now, apologize(ish) later, and reap the publicity benefits of the violation.

Likeness as Individual vs. Likeness as Performer

Because Johansson is a real person and an actress, it’s important to distinguish between her AI-generated likeness as herself and her AI-generated likeness as a character in a motion picture. As mentioned, ROP is neither federal law nor (as it stands) applicable to the use of Johansson’s likeness 30 years from now in a biopic about her. Regarding her likeness as a performer, the SAG-AFTRA agreement with the producers appears to strike a balance for now—namely that filmmakers retain some latitude for the use of generative AI replicas, but they cannot willfully “cast” performers in motion pictures by means of AI replication without permission or compensation. We shall see how things play out for lesser-known and background performers going forward, but for the time being, we won’t see Johansson’s AI avatar playing any roles without her permission.

And that brings us back to projects like the Piaf biopic. While there is no legal barrier, at least in U.S. law, to prohibit the use of AI likenesses of real people for expressive purposes, a film like the Piaf project implies a challenge for the future negotiating power of performers, if audiences demonstrate that they enjoy motion pictures without flesh-and-blood actors. This is, of course, the anxious question on the mind of every performing and creative artist since the explosion of AI over the last couple of years. Will the machines replace us all? Will the motion picture industry, for instance, be reduced to a few hundred computer programmers, ten executives, and a couple of social media gurus?

I tend to doubt that such bleak outcomes are likely. Even without new legal frameworks, I expect some of the frenzy over certain creative uses of AI will settle down as producers discover ways to enhance, rather than overwrite, the fundamental magic that makes an expressive work like a motion picture engaging for viewers. That may be wishful thinking, of course. I suppose it’s possible that the future will comprise a world of AI performers with artificial biographies, which will then be dramatized by subsequent generations of AI performers. At that point, though, I imagine the “audience” will also be AIs that “woke up” and wiped us all out. So, it won’t be our problem.

Photo by: Artyme83

With AI, Big Tech is No Longer Pretending to Care

As reported by Insider last week, the Andreessen Horowitz VC firm a16z, complains that potential copyright liability for AI developers could harm the interest of their investors. “Imposing the cost of actual or potential copyright liability on the creators of AI models will either kill or significantly hamper their development,” they state, as quoted by Kali Hays. Sympathy for the billionaires was not forthcoming, as my friend Neil Turkewitz can attest based on the responses to his tweet on the topic…

More about the VCs’ comments below, but against this backdrop of millions of creators laughing at the raw hubris of Andreessen et al., it is worth watching how, or whether, the AI developers address the matter of indemnifying customers against potential liability for copyright infringement claims arising from use of their systems. Writing for TechCrunch, Kyle Wiggers observes that as these companies respond to investor pressure to attract enterprise customers, copyright infringement indemnity may become common. For now, the landscape reads like a patchwork of promises with a sub-patchwork of disclaimers and conditions.

Adobe, IBM, and Microsoft have made the strongest assurances that they will commit resources to defend customers against copyright infringement claims; other prominent AI models like Stability AI, Midjourney have not yet adopted any such provisions; and Wiggers states that “Google offers some defense for customers against third-party allegations of IP infringement arising from its text- and image-generating models.” In practice, of course, the only real test to determine whether these clauses are meaningful (rather than just PR) is for a rightsholder to file a suit and see what happens.  And that gets to the question of which parties are being protected, and why.

In 2015, Google announced it would pay legal fees for YouTubers whose videos were wrongly removed from the platform via the DMCA notice-and-takedown provision. In fact, Google did not mean all YouTubers but a few selected video creators, and I do not believe Google ever had to put its money where its mouth was (not that anything they pledged counted as “money” in their world).* Although indemnity clauses in Terms of Service are a different animal, there is a familiar ring this time in the AI developers’ limitations and restrictions—for instance to only indemnify enterprise customers.

The trend strikes me as maddening. First the AI developer “trains” its model by feeding it millions of creative works, all used without permission from the rightsholders. Next, the AI developer hopes to sell its system to enterprise users—businesses that will, in theory, no longer need to hire the same professional creators whose works were rustled to develop the AI. And finally, the AI developer will protect said business user against potential infringement claims by that same class of professional creators (at least until there are no more creators left). Maybe this isn’t quite how things will go, but in principle, it looks a lot like looting a neighborhood and then erecting legal barriers to prevent the residents from remedying the theft.

And that brings me back to Andreessen Horowitz, and the gall it takes to so frankly dismiss the rights of all creators as an inconvenient barrier to VC wealth. In its comments to the Copyright Office, a16z recited Psalm 1 from the Book of Tech-Bro, demanding our blind faith that what’s good for the tech sector is always good for the country. “[Investor] expectations have been a critical factor in the enormous investment of private capital into US-based AI companies. Undermining those expectations will jeopardize future investment, along with U.S. economic competitiveness and national security.”

After recovering from the spit take at manifesto-writing capitalists seeking federal protection for their private equity investments, the only sensible reply to the overstated reference to national security is BULLSHIT. If the future of U.S. national security depends on developing a for-profit generative AI to make music or paint pictures, we’re screwed. Fortunately, this is not the case. Defense Department AI strategy (good, bad, or otherwise) will proceed independent of AI’s role in creative works of expression. Accordingly, it is both revealing and ridiculous that Andreesen Horowitz would even mention national security in comments to the Copyright Office.

Notably, the quote above appears under a subhead asserting that using protected materials for machine learning is fair use. The paragraphs that follow cite no authority to support a fair use argument and, in fact, undermine that defense by coming very close to asserting that there is no basis for a claim of infringement. If non-infringement is the argument, then fair use should not be raised, and a16z’s failure to articulate a strong position in either direction leads one to reasonably conclude that their only argument is financial self-interest. Last I checked, the free market doesn’t guarantee success, and if your business model is based on a potentially liability, that’s a problem with the model—i.e., a you problem.

With so many billions invested in generative AI, Big Tech’s longstanding clash with copyright law has finally pivoted from a lie about building new opportunities for individual creators to the unblushing truth that it views creators as obsolete relics dragging against their deterministic vision of the future. “Today, companies are aiming to remove artists and writers from the loop entirely — it turns out, even free labor was too expensive,” writes Eryk Salvaggio in a must-read essay. And if that’s how AI investors feel about human beings in the creative arts, we should question their investments in everything.

*UPDATE: Per comment by Neil Turkewitz, Google filed one suit in 2019 against one alleged abuser of the DMCA.