Category: Digital Culture

Are Creators Aligned on Artificial Intelligence?

creators

One of many challenges with adoption of generative AI (GAI) tools is whether creators are willing to demonstrate a degree of solidarity on the matter—i.e., apply the principle we generally call fair trade. If Creator A uses a GAI that might be harmful to Creator B in a different field, and so on, will most creators take this broader perspective in a group effort to demand ethical uses of GAI?  Moreover, this question becomes intertwined with copyright because the use of GAI is a subject of evolving legal doctrine, meaning that creators who want to produce commercial content outside their core talents should be aware that the material produced may not be protectable under the law.

Two simple examples would be the self-published book author who might use an AI voice app to produce an audiobook, and the documentary filmmaker who might use an AI music generator to produce a soundtrack for a film. In both examples, creators in other fields—voice actors and composers respectively—are potentially harmed by the development and use of these AI tools, but 1) will the author and filmmaker take that consideration into account?; and 2) will the sound recordings in either case be protected by copyright?

In the case of the author using AI in lieu of hiring a narrator to produce the audiobook, I predict that under current doctrine, the sound recording would not be protected by copyright law because there is no human performance captured in that recording. Thus, remedies for any piracy of the audiobook would rely solely on the protection of the underlying literary work, which is effective—but if the sound recording is also protected and registered, that would be two works infringed instead of one.

This increases the potential damages for infringement, which puts the author/owner in a stronger position if she needs to take legal action. By this example, authors’ interests may be seen as aligned with those of professional book narrators. Hiring a narrator will not only achieve better quality in the reading, but capturing the human performance is also a basis for copyright attaching to the sound recording.

Similar considerations would apply to the filmmaker with the GAI soundtrack, although there may be other factors that provide the AI music with some protection we don’t find with the AI audiobook. One factor that may become relevant is whether the filmmaker can show that he exerted sufficient creative control over the final sounds. If so, he may be able to defend a claim of copyright in the soundtrack, but we are likely several years and a few lawsuits away from clear guidance on this question.

Another consideration with the soundtrack may be the Copyright Office’s current view that material using assistive AI “within a larger work” is protected. Creators should be careful about interpreting that broad language because constituent works that stand alone—and this would apply to a soundtrack for a film—would logically not be independently protected.

Of course, there are many GAI products that allow one type of creator to avoid hiring another type of creator for a given project. Some of this is inevitable, and it is not necessarily unethical or bad for creative culture. That said, even with ethically trained and ethically used AI tools, the copyright considerations should be weighed by the individual creator (i.e., do they care about protecting what might not be protectable?), but also collectively by all creators contributing to a new ecosystem.

Since 1978 in the U.S., the default is automatic copyright protection, even if most rights are never enforced. But as GAI is used to produce a lot of material that is not protected, it is hard to predict what effect this might have on copyright overall. Even older than automatic copyright with the 1976 Act, the human authorship principle fosters a new tension for creators who may wish to combine GAI and human-authored work. As a response to that tension, it would be a mistake in my view to overwrite the “human spark” doctrine and simply protect any material that “walks and talks” like a creative work. This isn’t just an emotional appeal to anthropocentrism but rather a conviction that copyright would become meaningless—even unconstitutional—by eroding the incentive rationale for its existence.

Regardless of the theoretical questions addressed in this post, I believe that as a practical matter, creators should think carefully about how and when to use GAI for various projects. As an ethical consideration, perhaps if you’re opposed to “scraping” in your industry, then opposing it in others is the right view to take. But as a business consideration, if what you’re making is meant to have commercial value, AI-generated might mean not protected by copyright—and that means even if you spend money and time on it, it isn’t yours.

The Copyright War Was Never Just About Copyright

copyright war

The so-called “copyright war” began years before I joined the fight, arguably in 1999, when defenders of the P2P platform Napster equated music piracy with liberty. Thus, rather than a rational discussion about the interdependence of creators and technology, Big Tech cultivated a syncretic foundation from which to sell the paradox that devaluing individual rights was somehow good for democracy. After all, it was easy to promote the view that copyright only mattered to wealthy rockstars and giant corporations while eliding the subtle but significant fact that it is a constitutional right of every citizen.

The “copyright war” peaked in the public eye in 2011/12 when the tech-funded campaign to defeat the anti-piracy bills SOPA and PIPA raged across the social platforms, convincing even professional creators that free speech and the “internet as we know it” were doomed if those bills became law. Outlandish lies about the perils of that legislation—mostly crafted and promoted by left-leaning organizations, journalists, and academics—masked the cyberlibertarian philosophy of tech’s most influential figures. Because for many leading tech-bros, it was never just about copyright, but rather, their barely disguised contempt for rights in general and that outdated political model we call the Republic. And what better way to hide an anti-democratic agenda than in plain sight with populist slogans like democratization?

Timothy Snyder, in a recent article making the point that destruction of the American state is the only agenda of tech oligarchs, writes: “The logic of ‘move fast and break things,’ like the logic of all coups, is to gain quick dramatic successes that deter and demoralize and create the impression of inevitability. Nothing is inevitable.” Citing Facebook’s old motto in context to events in Washington since the start of Trump 2.0 is spot on. Yes, for many tech companies the assault on rights like copyrights was purely about siphoning wealth from creators, but for the biggest egos in the room—like the guys on stage at the inauguration—it’s about usurping power.

When I first jumped into the copyright fight in 2011, I was lectured by Mike Masnick and others that I simply didn’t understand the economic concept of creative destruction. My friends and I were accused of “clinging to buggy whips in a world of automobiles,” failing to see how new technologies opened up new opportunities for artists, even as they closed “outdated” modes of production and distribution. But in the same way those messages distorted the math—omitting evidence of destruction without creation—the “digital rights” crowd ignored or endorsed the fact that what they were really promoting was the an ideological, anti-democratic agenda.

The idea that an independent photographer or songwriter might dare to remedy widespread, unlicensed uses of their works online was not just financially anathema to platform owners’ interests, it was philosophically repugnant that the “unthinking demos,” to quote Peter Thiel, should have any say whatsoever about the geniuses building our new utopia. This is the real spirit behind the “don’t stifle innovation” talking point—promoting that alleged inevitability cited by Snyder, now being used to push unfocused development of artificial intelligence as a mandate without public oversight.

From a broad perspective, the ideological assault on copyright was a powerful framework for teaching citizens to disregard the rights and dignity of other citizens through the anonymizing medium of digital technology—a “concealing paint emancipating us into savagery,” to borrow from William Goldman. Getting permission to use a creator’s work was scorned by the same rationales that Redditors applied to sharing stolen nudes of celebrities or which tech-evangelists still use to justify all manner of toxic content under the general view that it’s all just speech.

Parallel to Big Tech’s attack on the very idea of permission and respect for individual rights, the major platforms arrogated the role of oversight—and everyone fell for the trick. It was illusory oversight, of course, but both message and perception were that Facebook, Twitter, et al. offered better transparency (i.e., more truth) than any journalist or civil servant ever could. As more news and politics populated social media, the word “sunlight” was often repeated as a talismanic code, which meant that no government agent, no journalist, no expert could be trusted because the “real truth” lies somewhere in the morass of alternate realities hosted on the web.

The assault on copyright was often described by my friends and colleagues as a “canary in a coal mine” because it was easy for most observers to compartmentalize the “war” as a minor skirmish that, at worst, might deprive already rich people of a few bucks. In truth, it was one battle in a broader war that has now manifest in lawless, incompetent, and violent individuals mucking about in the federal government—including one non-American tech oligarch getting his mitts all over our public affairs without any oversight. As shocking as these events may be, they’re not surprising. Big Tech said, “Disrupt everything.” They weren’t kidding.

Your Narrative About TikTok is Probably Wrong (but so what?)

tiktok

One story that trended (e.g., on BlueSky) about TikTok’s day of shutdown and revival can be summarized thus:  the intent to ban TikTok was a stunt cooked up by Republicans so that Trump could pretend to save it at the last minute. Thus, it was never about national security but was yet another grab of another platform for hard-right ideologues—and an opportunity for Trump and/or his friends to benefit financially.

I get why that seems rational, but it doesn’t quite square with the facts. Before describing those facts, however, let’s acknowledge and set aside a few assumptions based on emotion.

First, it is only natural for TikTok account holders to feel angry at the thought of losing a platform they enjoy or use for business or core communications.  When something we like might be taken away as an act of law—let alone a forum used to express oneself or make a living, it feels like an unwarranted attack on one’s interests and civil rights. This remains the unresolved paradox of all social media platforms:  that holding them accountable is perceived by one group or another as an abridgement of the rights of the platform users.

Second, Trump lying is a universal constant. He lies so often that it would be impossible for him not to contradict himself on a broad range of topics. Hence, the fact that he once said “ban TikTok,” then used TikTok for his own purposes, and then claimed to save TikTok is just his standard operating bullshit. “Biden tried to kill it, but I’m going to save it,” is one of a million sound bites or posts (amplified by asshats like Charlie Kirk) that have little to do with what happened or is likely about to happen.

Third, TikTok’s own messaging thanking Trump etc. cannot be taken at face value. The company is acting in its own interests, as any business would. Of course, it was pure theater when the site popped back on and thanked Trump for the 90-day stay of execution while they work out a “deal.” And naturally, many TikTok users will only be glad the platform is still running and either not care or necessarily believe why lawmakers acted in the first place.

The Real Story (most likely)

No later than early 2024, both Democrats and Republicans in Congress were provided security briefings on TikTok and its relationship to the Chinese Communist Party (CCP), an adversary of the United States. Members of both parties were deeply concerned about what they learned, and thus, in early March, the House passed HR 7521 with a vote of 362 to 55. The bill had 54 co-sponsors—22 Democrats and 32 Republicans. After the bill was signed by President Biden, the law set a roughly ten-month deadline for TikTok to be sold to an entity without ties to the CCP to avoid being banned in the U.S.

So, the first point worth making is that if Trump & Co. orchestrated the TikTok law as a stunt, they did it with the cooperation of a lot of Democrats, including President Biden. Instead, it is more reasonable to assume (though admittedly difficult these days) that the TikTok bill was the result of bipartisan cooperation on a matter of national security. Notwithstanding political rhetoric by individual Members—let alone sniping from the edges by Trump—the law itself was well founded, and it is worth noting that the Republicans who supported the law could not be certain that Trump would be re-elected and, therefore, have the opportunity “rescue” TikTok, as alleged.

While I have no more inside information about those security briefings than any other observer, the most rational conclusion is that Congress had good reason to pass the TikTok law, which the Supreme Court—albeit at the 11th hour—unanimously held was not in fatal conflict with the First Amendment. This outcome, which I advocated in an earlier post, does not support the narrative that the ban was a stunt cooked up by Trump and loyal Republicans so that TikTok could be recruited along with Facebook, X, and Google as another social platform of the oligarchy.

Importantly, that narrative misses the point that just because people only lately discovered that Big Tech’s politics are oligarchical, that doesn’t make it news. The sight of Zuckerberg, Musk, Pichai, and Bezos on stage with a mad monarch like Trump was written into Silicon Valley’s Terms of Service a long time ago. TikTok is no different but for the fact that its other anti-democratic master happens to be the CCP.

What Now?

While I endorsed the rationale for the TikTok law, I am acutely aware that even if it were banned on the basis of adversarial foreign control, this would have been a remedy of closing the barn door long after the cows escaped, drowned in the lake, and the lake froze over. The adversarial effects of all social media on American democracy not only remain unaddressed, but Trump & Co. are direct beneficiaries of the kind of targeted propaganda social sites make possible. In other words, whether adversaries of American interests are foreign or domestic, mission accomplished. Chaos sown. You are here.

Just like the social platforms, Trump also disguises his personal interests as American interests, and whatever “deal” he makes to keep TikTok in the U.S. cannot be trusted. “America First,” is an Orwellian slogan—used to animate mean-spiritedness while advocating policy that directly undermines American interests, including national security. Regarding TikTok, then, there is no reason to believe that Trump & Co. give a rat’s ass whether the CCP remains tied to the platform unless that relationship is damaging to Trump & Co. personally—a group that now includes the lately recognized tech oligarchy.

Within that morass, competing narratives will continue to flow based on ideology and emotion—all feeding the social media beast while pretending to tame it. Whatever becomes of TikTok in the next three months, public perception is unlikely to match reality, which paradoxically proves both the utility and futility of the law that was designed to force its sale.