Category: Artificial Intelligence (AI)

Podcast: AI and Voice Replication with Tim Friedlander

Friedlander

In this podcast, I talk with Tim Friedlander, voice actor, musician, and founder of the National Associaion of Voice Actors (NAVA). Tim joined me to talk about AI — its potential threats to his profession, his experience meeting on Capitol Hill, and his views on why this subject matters.

Contents

Voice
  • 00:32 – Tim’s background.
  • 03:07 – Political voiceovers.
  • 04:31 – Voice acting is acting.
  • 06:20 – About NAVA.
  • 10:25 – Size of NAVA and the market.
  • 12:35 – Experiences on the Hill.
  • 17:04 – Economic value of the market.
  • 18:53 – Resistance to the cause.
  • 21:46 – The challenge does not end with licensing.
  • 25:24 – What’s resonating on the Hill.
  • 28:55 – No FAKES Act.
  • 33:29 – Reasons why this conversation matters.
  • 40:15 – AI as a tool for creators.
  • 44:50 – Is it too late to respond?
  • 48:45 – The climate has changed for Big Tech.
  • 55:30 – No FAKES reprise.

Chamber of Progress: Old Rationales for a Brave New World

old rationales

The Chamber of Progress launched an initiative called the “Generate and Create” campaign to “defend fair use” and “promote AI creativity.” I don’t know whether they bought this campaign used from the basement of Fight for The Future or Electronic Frontier Foundation, but the following statement is worn-out rhetoric that sounds even weaker defending AI as a mode of production than it was defending online platforms as a mode of distribution:

To combat the growing legal and policy copyright threats against generative artificial intelligence, Chamber of Progress announced a new campaign, Generate & Create, highlighting the creative benefits of generative artificial intelligence and supporting established fair use protections for AI training and output.

The pro-creator message is a remix of a remix of Lessig’s “remix culture” argument against online copyright enforcement—a narrative which begat the “we’re all creators” argument against copyright rights. Instead of YouTube enables creators to break free of “gatekeepers,” now it’s AI enabling the same emancipation, though as discussed in this post, it’s hard to fathom who the “gatekeepers” are this time.

Meanwhile, the promise to “defend fair use” is code for “we’re funded by Big Tech to tilt at windmills while we lose legal arguments.” One does not “defend fair use” the way one defends a right to read banned books or a right to reproductive healthcare in the same states that like to ban books. There is no legislative agenda to abolish or amend Section 107 of the Copyright Act. Fair use is a balancing test courts apply in certain copyright infringement cases, and on the headline question as to whether machine learning (ML) with copyrighted works is exempted by fair use, there is nothing “established” about that answer despite CoP’s implication to the contrary.

Although fair use cannot be applied generally (i.e., it is a case-by-case consideration), it is true that all the copyright infringement claims against the various AI developers arise from the same general conduct and, therefore, invite similar or identical fair use defenses. Cutting to the final chapter, if Open AI loses to New York Times and Udio loses to UMG et al. in the Second Circuit, those outcomes are likely to be controlling on the fair use question of ML. Even if any of these cases goes to the Supreme Court, the likelihood of a reversal of an opinion out of the Second Circuit—so prolific on fair use case law—is a bet I wouldn’t make.

Nevertheless, the argument will be presented, and it goes something like this:  Gen AI breeds new creative works, in part by breaking down “barriers” for would-be creators, and because this productivity is consistent with the purpose of copyright, ML serves a transformative purpose and is, therefore, fair use. Notwithstanding the fact that a defendant can win on the transformative question and still lose on fair use overall, I suspect the AI developers may find their very expensive machines described by the courts’ precedent language as “slightly transformative.”

But AI is revolutionary! you might say. How can it be only “slightly transformative?” Answer:  for the same reason the Internet Archive’s Open Library is “slightly transformative”—because its purpose was a substitute for licensed ebooks. What is different about GAI, of course, is that it is generally a substitute as a mode of production more than as a mode of distribution, and to complicate matters, some professional creators are using AI tools and deriving benefits from those uses. So, if that sounds like the answer is “it depends,” welcome to the fact-intensive nature of the fair use defense, which cannot be broadly “defended” in the sense the CoP proclaims.

CoP et al. will promote the argument that because GAI fosters the production of more “creative works,” this predicted increase in output fulfills the purpose of copyright law. But the reason I put “creative works” in quotes is that for every 100 sound recordings to come out of an AI product like Udio, somewhere between an unknown and zero percent of those sounds will be “creative works” as a matter of law. Copyright only protects human authorship of creative expression, and that doctrine will not—and should not—change. Meanwhile, the question as to what the human creator must do in collaboration with GAI for the human to claim copyright in the resulting work is an evolving doctrine—one that is several years, and several lawsuits, away from becoming guidance.

With a product like Udio or Suno, where the business model depends on consumers generating music with a few simple prompts, it is fair to assume that the vast majority of the music produced will not be “creative expression” as a matter of law. And because “creative works” that are not protected by copyright (i.e., are not human authorship) cannot reasonably be held to serve the purpose of copyright, fair use should be foreclosed as a defense of the generative machine.

In response, we will see CoP and defendants argue that because the product is already being used by professional creators, products like Udio or Suno serve both copyright and non-copyright purposes. While plausible, this defense is where I believe the courts may find the GAI’s purpose to be only “slightly transformative.” This is because the dominant purpose—indeed the only ROI available to the developers—is one that primarily does not fulfill the purpose of copyright and which, in fact, serves as a substitute for works that do serve the purpose of copyright.

Further, the consideration of GAI as a tool for creators in furtherance of copyright’s purpose runs headlong into the nascent doctrine as to how and how much use of GAI results in a protectable work. That question is a case-by-case consideration at a granular level. One musician’s use of Udio may produce a copyrightable composition and/or sound recording, while another’s use of the same product in a slightly different manner may have the opposite result. Considering the uncertainty of these hypotheticals to come, it is hard to imagine how the courts could find today that the product at issue favors a finding of transformativeness strong enough to carry the whole fair use analysis.

Chamber of Progress et al. will flood social media with anecdotal arguments, like disabled persons empowered to create thanks to GAI, or the whimsical notion that “machines learn the way people do.” These and other rationales for GAI’s value deserve specific responses, some of which I shall write. But in general, I predict these stories, like Lessig’s “children of YouTube,” will play well with some segment of the blogosphere but then, as legal arguments, will join the pile of similar fair use defenses lying on the floors of the federal courts.

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Thinking About an Old Copyright Case and Generative AI

old copyright case

The first copyright case decided at the U.S. Supreme Court was Wheaton v. Peters in 1834. There were six justices at the time, including the oft-quoted Joseph Story, and in a 4-2 decision, the Court made what I believe was a textual and, therefore, doctrinal error. The allegedly infringed works at issue were published reports of the Court, and there was neither disagreement nor error in finding that the opinions of the Court themselves were not a subject of protection. Instead, the important question—a philosophical debate inherited from England’s 18th century copyright battles—was whether Article I of the Constitution empowered Congress to create rights or to protect rights that naturally existed at common law.

In finding the former, the Court erred in my view because its opinion turned on misinterpreting the word securing from the intellectual property clause in Article I, which states that Congress is empowered, “To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Court held that securing was a word of “origination,” establishing the doctrinal principle that copyright rights are “creatures of statute.”

The precedent in Wheaton has often been highlighted by anti-copyright scholars because it limits the notion that copyright rights are in any sense natural rights. This, in turn, supports the skeptical (I would say cynical) view that copyright is a devil’s bargain with authors, begrudgingly granting a temporary “monopoly” in exchange for production and distribution of their works. But aside from the fact that the Court of 1834 stated that the longstanding question remained “by no means free from doubt,” its textual interpretation of the word securing was simply unfounded.

As I discuss briefly in my book, there are at least two strong arguments against the Court’s finding that secure was a word of origination, and the first of these is the preamble to the Constitution. When the Framers wrote “to secure the blessings of liberty,” they can only have meant that the aim of the Constitution is to protect, ensure, or maintain that liberty which had so forcefully been articulated in ink and blood as a natural right of all people. The Framers did not mean that the Constitution creates the “blessings of liberty.”

The second argument is the dictionary. Noah Webster, who happens to be both the father of American English and the father of American copyright, was widely respected as a man of letters; as an effective voice for the natural rights of authors; and as the primary force behind the copyright law revision of 1831. Nevertheless, in defining the word securing in the Wheaton case, the Court somehow failed to harmonize its interpretation with any of seven entries in the 1828 edition of Webster’s dictionary. There, all definitions of secure express variations on the idea of “protection,” and none suggests that the word means “creation.”

Why does Wheaton matter today?

By misreading the meaning of secure, the Wheaton Court overstated a utilitarian view of copyright and understated the natural, common law (i.e., human) view of copyright. Granted, this tension dates back a few centuries, if one wishes to look that far, but it isn’t necessary to wander into the tall grass of pre-American history. There is ample rationale since 1790 to hold as self-evident that what the author creates is naturally her property, but this principle can only apply to human creators.

As mentioned, copyright skeptics, many who are either funded by or ideologically aligned with Big Tech, will overstate the precedent that copyright is a “creature of statute” because they like to propose that what Congress giveth, Congress can taketh away. For instance, Wheaton animated the “copyright is broken” campaign, which insists that technological progress in the digital age demands weakening protections on creative works to foster “innovation.”

This argument has taken various forms over the years, including justifying mass piracy; proposing that Congress should roll back the duration of protection; arguing the unconstitutionality of digital rights management; advocating extreme interpretations of fair use; and inventing legal theories like “controlled digital lending” for eBooks. These efforts have largely failed while Big Tech’s credibility has also diminished over the past decade. And indeed, despite the doctrinal weight of Wheaton, the legislative, judicial, and cultural record on copyright is replete with natural rights principles.

Still, although Big Tech does not enjoy the benefit of the doubt it did circa 2012, the commotion over generative artificial intelligence (GAI) reprises the familiar theme that copyright rights allegedly stand in the way of “progress.” In fact, one of the leading astroturf organizations promoting that view calls itself the Chamber of Progress, but the consideration about GAI in the creative community and beyond should respond that “progress” which proposes to displace or diminish human value is not progress.

As new technologies emerge and enter such central aspects of our existence, it must be done responsibly and with respect for the irreplaceable artists, performers, and creatives who have shaped our history and will chart the next chapters of human experience. – Human Artistry Campaign –

Big Tech surrogates like the Chamber of Progress will repeat the assertion that GAI “democratizes” creativity, which takes a lot of chutzpah coming from an industry that has done so much widespread damage to democracy. By now, it should be obvious that when tech companies claim to “democratize” anything, this smokescreen is disguising the fact that what they are usually doing is undermining the value of individual agency—from control of one’s likeness to copyright rights to political views. In other words, democratization has been bad for democracy.

The Wheaton Court of 1834 could not have imagined that the subject of common law copyright would be relevant 190 years later in context to a technology that can generate creative works without creative people. But human artistry is not strictly about art per se. It reprises the philosophical question as to what it means to be human, and if that answer begins with thought and knowledge, then we must recognize how democracies have been hammered by epistemic crisis since the explosion of social media.

Now that GAI is accelerating and expanding the power of misinformation, the human who encounters the AI generated lie must decide whether to believe what he sees, let alone to amplify the post. This is not merely a question of critical thinking, but an existential test that guys like Peter Thiel hope we fail. As many tech critics have repeated over the last 10-15 years, the design of these technologies—and indeed the stated intent of many of its designers—is that we become its tools rather than the other way around. And GAI has the potential to fulfill that agenda by more thoroughly blurring the line between reality and illusion.