Category: Law & Policy

Comments to the Copyright Office on Artificial Intelligence

Below are the responses I submitted to selected questions in the U.S. Copyright Office Notice of Inquiry and request for comments on artificial intelligence.

8.1. In light of the Supreme Court’s recent decisions in Google v. Oracle America and Andy Warhol Foundation v. Goldsmith, how should the “purpose and character” of the use of copyrighted works to train an AI model be evaluated? What is the relevant use to be analyzed? Do different stages of training, such as pre-training and fine-tuning, raise different considerations under the first fair use factor?

In my view, neither case is helpful to a putative AI-developer defendant regarding the first factor question being asked. Under Warhol, there is no colorable defense that the purpose of AI training is to achieve “critical bearing” on the works used, and it is difficult to imagine how most, if any, developers would make such a claim. In Oracle, the reimplementation of APIs for the development of new computer programs is highly distinguishable from, for instance, copying a billion images in their entirety to “train” a machine to generate images. Further the Court cautioned that Oracle is narrowly tailored to computer programs as the copyrightable works in question.

8.5. Under the fourth factor of the fair use analysis, how should the effect on the potential market for or value of a copyrighted work used to train an AI model be measured? Should the inquiry be whether the outputs of the AI system incorporating the model compete with a particular copyrighted work, the body of works of the same author, or the market for that general class of works?

This is one example in which generative AI can upend copyright doctrine. Even where a use may involve millions of works (e.g., Google Books), the fourth factor considers potential harm to the market for the works, whereas generative AI—if it does not produce market substitutes—primarily represents potential harm to authors and future authorship. While it is beyond the scope of copyright to protect creative jobs against technological changes per se, the consideration in the context of “training” should be expansive and doctrinal—namely that a potential threat to “authorship” cannot, by definition, “promote the progress” of “authorship.” Therefore, the fair use defense should be unavailable to the developer in this context. Where the AI does produce market substitutes, case law should be sufficient, including the fair use factor four inquiry.

10.3. Should Congress consider establishing a compulsory licensing regime? If so, what should such a regime look like? What activities should the license cover, what works would be subject to the license, and would copyright owners have the ability to opt out? How should royalty rates and terms be set, allocated, reported and distributed?

No. With the development of streaming platforms, compulsory licensing devastated the livelihoods of songwriters. AI development is still nascent, and we cannot predict how the market will change in the future. Legislation of this nature is likely to be short-sighted and may lock in regimes that fail to serve authors.

  1. In order to allow copyright owners to determine whether their works have been used, should developers of AI models be required to collect, retain, and disclose records regarding the materials used to train their models? Should creators of training datasets have a similar obligation?

Yes. Both parties should be obligated to collect and maintain records to foster transparency. That said, considering the lack of good faith shown by the tech sector in complying with regimes like the DMCA, provisions of this nature should contain actual penalties for failure to comply. Any proposal based upon a civil liability shield in exchange for compliance should be dismissed as a non-starter and a waste of time.

  1. Under copyright law, are there circumstances when a human using a generative AI system should be considered the “author” of material produced by the system? If so, what factors are relevant to that determination? For example, is selecting what material an AI model is trained on and/or providing an iterative series of text commands or prompts sufficient to claim authorship of the resulting output?

The threshold for copyrightability must still be a “modicum of originality” contributed by the human, whether the tool used is a camera, keyboard, paintbrush, or, perhaps, an AI-based application. It is certainly possible for a human using a generative AI to be the “author” of the work, though, I believe, not the developer of the AI model or system. Merely selecting the materials used to “train” an AI cannot be considered “authorship,” let alone “authorship” of what may be tens of millions of outputs. Further, because it appears that most models require the ingestion of tens of millions of works in order to “learn,” this volume of collection by means of, for example, internet scraping is too indiscriminate to be considered “selection.”

  1. Is legal protection for AI-generated material desirable as a policy matter? Is legal protection for AI-generated material necessary to encourage development of generative AI technologies and systems? Does existing copyright protection for computer code that operates a generative AI system provide sufficient incentives?

My answer to the first two questions is No, and, therefore, the third question is moot. In general, it is not desirable to attach copyright rights to AI-generated material any more than it is desirable to vest civil rights in robots. As stated above, if individual humans use certain AI-based tools to create works of expression, the use of these tools should not automatically disqualify the entire work from copyright protection.

But we must be cautious about vesting copyright rights in enterprise-scale, corporate production of works by, for instance, an AI-developer/producer. Beyond posing a threat to the careers of creative professionals (and to the cultural value of creative work), at a certain point, the application of copyright law itself may become irrelevant and/or unconstitutional. For instance, if generative AI were to foster an oligopoly of developer/producers, it is conceivable that copyright enforcement would become meaningless. Imagine the chaos (or futility) arising from a claim that AI-Developer Alpha allegedly infringed the work of AI-Developer Beta. Such a scenario raises difficult questions of standing and, as noted below, may frustrate the substantial similarity inquiry to the point of irrelevance.

Meanwhile, if these potential outcomes result in shrinking the population of working authors and the diversity of works, this would be anathema to the constitutional purpose to “promote progress.”

  1. Does the Copyright Clause in the U.S. Constitution permit copyright protection for AI-generated material? Would such protection “promote the progress of science and useful arts”? If so, how?

While patent protection for AI systems may promote the “useful arts,” copyright protection for AI-generated works does not inherently promote “science” (a.k.a.) new creative expression. Again, if generative AI is likely to reduce the number of working “authors” in the U.S., this is offensive to the Progress Clause in Article I. That the American Framers could only conceive of human “authors” is not just a technicality of history. Whether in 1787 or today, law, like art, is a human construct that serves no purpose beyond human experience. As I have stated a few times here, it is contradictory to believe that one can promote “authorship” while obviating the role of “authors.” That the Progress Clause could be interpreted to encompass this result defies textual, doctrinal, and historical reason.

  1. Can AI-generated outputs implicate the exclusive rights of preexisting copyrighted works, such as the right of reproduction or the derivative work right? If so, in what circumstances?

Yes, and it’s happening right now. Users of generative AI are producing famous—and famously protected—reproductions and derivative visual works of, for instance, Marvel characters. While copyright owner Disney may not elect to take legal action against, for instance, parties sharing these outputs on social media, there is nothing about the use of AI in these examples that militates against finding that the copies and derivatives are infringing. In fact, it seems certain that if these outputs were to be used commercially, the inevitable litigation would be short work for the court.

As to whether the AI developer may be liable for these copies and derivatives, it seems straightforward to find that if, for instance, “Daredevil” was input for training and “Daredevil” was later output by the system, then the developer may be liable for both direct and secondary copyright infringement. Direct copyright infringement in violation of §106(1) occurs during input, and secondary infringement arises due to the developer’s failure to prevent the infringing work from being output.

  1. Is the substantial similarity test adequate to address claims of infringement based on outputs from a generative AI system, or is some other standard appropriate or necessary?

Combined with 24 below.

  1. How can copyright owners prove the element of copying (such as by demonstrating access to a copyrighted work) if the developer of the AI model does not maintain or make available records of what training material it used? Are existing civil discovery rules sufficient to address this situation?

The doctrines of “substantial similarity” and “access” may both be challenged by generative AI. First, if a given system is prompted to produce common or popular probability outcomes, it may generate thousands or millions of similar works, all of which are potentially non-infringing under the doctrine of “independent creation.” For example, the AI user who is unfamiliar with the work of Karla Ortiz may inadvertently produce a work that is “substantially similar” to one of Ortiz’s images, but the copy may be said to be “independently created” by that individual. The difficulty is novel because “independent creation” is historically anomalous whereas AI could make it rampant.

This also goes to the question of “access” and liability for that “access.” The AI developer undoubtably has “access” to any work fed into its model, but it seems unlikely the user of the AI can be said to have had “access” in this context. Then, because of the increased likelihood of multiple, “independently created” similar works, proving “access” may be moot with regard to the liability of the individual user of the AI.

  1. If AI-generated material is found to infringe a copyrighted work, who should be directly or secondarily liable—the developer of a generative AI model, the developer of the system incorporating that model, end users of the system, or other parties?

Assuming the user of the AI knowingly made the infringing work, he/she is liable for direct infringement. Secondary liability for any developer may arise if the allegedly infringing work is a copy, or is “substantially similar,” to a whole work that was fed into the model or subsequent application.

25.1. Do “open-source” AI models raise unique considerations with respect to infringement based on their outputs?

I fail to see why “open source” would alter the consideration of an alleged infringement.

  1. If a generative AI system is trained on copyrighted works containing copyright management information, how does 17 U.S.C. 1202(b) apply to the treatment of that information in outputs of the system?

As in pre-AI considerations, §1202(b) denies the AI developer an “innocent infringer” defense.

  1. Should the law require AI-generated material to be labeled or otherwise publicly identified as being generated by AI? If so, in what context should the requirement apply and how should it work?

A requirement to identify AI-generated material likely addresses topics outside the scope of copyright law. Presumably, the public would be best served by labels used to mitigate fraud and other forms of misinformation, and the complications arising from that intent are best left to the FTC, Congress, and agencies other than the Copyright Office. Even where AI may be used to create forgeries, this is already criminal conduct, and copyright plays little or no role. But unless a creative work is illegally presented as the work of a named artist, there is no compelling interest per se in notifying the public that a work, or part of a work, was generated by AI.

  1. Should Congress establish a new federal right, similar to state law rights of publicity, that would apply to AI-generated material? If so, should it preempt state laws or set a ceiling or floor for state law protections? What should be the contours of such a right?

Again, this not a copyright matter, but a federal ROP may address some of the already rampant, unethical uses of AI where the potential harm to both the infringed party and the public is significant. The 25 state ROP laws do not address, for instance, the potential harm caused by AI’s capacity to generate “in the style of” works, especially in the commercial market.

If ROP law is expanded, it should 1) apply to all persons, not just celebrities; 2) anticipate and remedy AI-enabled harms stemming from misappropriation of likeness for purposes other than commercial advertising; and 3) not restrict expressive uses of AI-generated likeness for purposes (e.g., biographical films) that fall within the scope of protected speech.

In a world in which all media travels the globe instantly, a federal ROP statute would seem to be the only sensible framework in which to address the myriad potential harms. As for preemption, this may raise the cost of potential litigation by eliminating the option of a state filing, but further study into this as a matter of civil procedure is required.

  1. Are there or should there be protections against an AI system generating outputs that imitate the artistic style of a human creator (such as an AI system producing visual works “in the style of” a specific artist)? Who should be eligible for such protection? What form should it take?

This concern could be addressed in a new, federal ROP statute while leaving undisturbed the doctrine that copyright does not protect “style.” While an amendment to the Copyright Act akin to VARA could be written to encompass a narrow protection for “style,” the intent seems better suited to ROP. Additionally, it may be easier and more effective to write a new law for the purpose of federal ROP than to amend the Copyright Act, especially when the U.S. is not a moral rights jurisdiction vis-à-vis copyright. Finally, it should be noted that, if protection of this nature were enforceable, it may create new licensing opportunities for artists and prospective commercial users.

As to application of the law, again, forgery is covered by the criminal code, but the most likely harm would seem to be commercial use of “in the style of” works in a manner that may implicate the artist’s reputation and/or deny her a commission or a licensing opportunity. Still, if such a right were to be established, exceptions would be required so that what we might call “reminiscent of” is distinguishable from “in the style of.” This is a highly subjective consideration that may draw lessons from “substantial similarity” doctrine, even if the new right does not sound in copyright. For instance, prompting an AI for a work “in the style of [named artist]” may be analogized to the principle of “access.”

  1. Please identify any issues not mentioned above that the Copyright Office should consider in conducting this study.

In regard to disclaiming AI-generated material in a registration application, the current guidelines are likely to confuse applicants and overburden examiners who have neither the resources, nor necessarily the expertise, to engage in assessments normally left to the courts. Although it is understandable that the Office wishes to preserve the “human authorship” doctrine, asking an applicant how a work was made is a significant shift that should not be taken lightly.

Applicants are going to submit myriad statements which are either unfounded in law, or which beg for what amounts to a “substantial similarity” test on the part of the examiner. This may strain Office resources and potentially cost applicants additional fees. Instead, if the Office were to add a checkbox at the Certification stage of the application, asking whether the deposit copy(ies) contain any AI-generated material, the applicant will be given the opportunity to make a truthful statement subject to §506(e) while leaving the question of separating the AI material from the human authorship to the courts, as it should be.

Does Social Media Make Leadership Impossible?

There is a quote attributed to French revolutionary Alexandre Ledru-Rollin, which says, “There go my people. I must find out where they are going so I can lead them.” The irony may be cited to describe the state of political leadership in the U.S. these days; and after my own party botched the budget/Speaker crisis so badly, I wonder whether anyone can govern in the glass House created by the illusion of transparency we call social media.

Speaking as a Democrat, I believe Hakeem Jeffries and the leadership disserved both the country and the party by failing to block the ouster of Kevin McCarthy. Had the Democrats voted to keep McCarthy, they could have put the people’s business before politics; blown up Matt Gaetz’s Clown Car; burnished their own Members’ bona fides as adults in the room; and perhaps even provided some breathing room for moderate Republicans. Instead, Congress is not legislating, the clock on the Continuing Resolution is ticking toward a more intractable budget crisis and shutdown, and Steve Scalise could become Speaker.* And that was before the staggering events in Israel.

How a Democrat can call any of these outcomes good for country or party is a mystery, as is the implication that the leadership could not have sold the more sober decision to the party base. Maybe McCarthy wouldn’t negotiate on anything; maybe the decision was to keep day-trading on the political “value” of GOP dysfunction; or maybe the Democrats are every bit as afraid of their constituents as the traditional Republicans. Because maybe leadership is impossible these days, especially in the House, now that social media effectively turns all elected officials into populists.

It is a systemic flaw that a Member of the House in particular can never stop campaigning—a problem that has often been discussed in the context of campaign finance reform. Indeed, the requirement to placate key donors and raise large sums while trying to legislate hobbles both sides of the aisle. But aggravating these conditions, social media has dramatically shortened the two-year term while fostering a climate that is more reactionary, performative, and ugly.

The memes mocking McCarthy’s ouster were predictable, like the one showing him next to McCauly Culkin from Home Alone and saying that “only one Kevin managed to defend his house.” I get the desire to lampoon the guy, but this rote and chronic form of gloating suppresses the instinct to step back and consider the larger picture. Because how satisfying will that joke be if Scalise gets the gavel? Or looking forward, how satisfying will the Scalise memes be as government devolves to an even messier food fight?

A republic does not function well with constituents crawling up a representative’s ass 24 hours a day, yet Americans across the political spectrum embraced the half-baked promise of direct-democracy enabled by social platforms. And it’s no surprise the results are catastrophic. These platforms thrive on spectacle, outrage, sound bites, and memes. They make celebrities out of Clowns while muting the less dramatic, but essential, process of debate and compromise.

Today’s representative who sincerely hopes to accomplish anything other than disruption in Washington operates in a climate that rewards boorishness and where her own constituents will drag her in real-time for even thinking about reaching across the aisle. If that was a calculation in the Democrats’ decision to let McCarthy be removed, then no matter how different Jeffries and McCarthy may be on policy, it doesn’t matter because both men failed to lead, and no policy work is getting done.

McCarthy deserved to be roasted for his self-flagellating attempts to mollify the Trumpians, but his ejection only proves that it is better to lose for showing leadership and integrity than to win a fleeting victory through appeasement. If that’s true, then the principle must apply to Democrats as well, and sometimes leadership demands making the least bad choice. Plus, bitch-slapping Matt Gaetz would have made for pretty good optics (and memes) for the Dems to enjoy on Facebook, so the decision to hand the Clown Car a win seems all the more cynical.

Every leader worth a damn makes a least-worst decision at one time or another. But not until the last 20 or so years have leaders been required to make tough choices while the electorate reacts instantaneously through the medium of a hundred-million digital soap boxes. So, if social media has fostered a climate in which making the least-worst decision is always political suicide, then what we get is representation in name only followed by unrelenting chaos.

*At the time of writing. Now, it appears Scalise is out, but the point is the same. The Dems voted to prolong the chaos. I even received a fund-raising email on it just today.

Photo by: chajamp

Is Congress Protecting Big Radio and Forgetting Musicians—Again?

Cars and music are so symbiotic that many contemporary vehicles could be mistaken for high-tech sound systems that also happen to take us places. I remember when popular music was only available on AM radio stations, and we’d listen to Steve Miller or Wings or the Jackson 5 playing through tiny, sibilant speakers mounted in the center of the dashboard. Those days are LONG gone, of course, and although AM radio is a relic as a music platform, musical artists might want to tune into the legislative progress of the AM Radio in Every Vehicle Act because it just might leave them hitchhiking on a lonely highway. Again.

Introduced in May by Senator Edward Markey, along with an identical bill in the House sponsored by Representative Josh Gottheimer, the AM Radio legislation was presumably drafted at the request of the major broadcasters seeking to extend the lifespan of terrestrial radio in a market increasingly dominated by digital options. Specifically, the bills are a response to auto manufacturers who have discontinued, or plan to discontinue, production of new vehicle sound systems capable of receiving AM signals. Likewise, makers of electric vehicles (EVs) have shunned AM because the powertrains cause electromagnetic interference at those frequencies.

More broadly, Autoweek, in November 2022, stated, “Auto companies consider deep-sixing radio for the same reason they ditched the CD player—it costs money and takes up space and resources on the valuable digital dashboard.” While some automakers testified in hearings that Congress should not dictate their product decisions in a changing market, others have since agreed to keep AM radio for now. Admittedly, it does seem as though forcing auto manufacturers to carry the AM signal in all cars in 2023 is a bit like requiring computers to still come with floppy drives.

Meanwhile, it is not hard to imagine how today’s AM Radio mandate, if passed, could serve as a precedent for an FM requirement in the future. And this would be acutely relevant to musical artists because it would extend the lifespan of terrestrial music broadcast, for which performers receive no royalties.

Section 106(6) of the Copyright Act protects the right to publicly perform sound recordings by digital transmission only, and recording artists have been trying for decades to amend the law to include terrestrial radio, arguing that they have long deserved a share of ad revenue earned by stations playing their music. Every time the issue has come before Congress, lawmakers have sided with the broadcasters, but in June 2021, the American Music Fairness Act (AMFA) came closer to gaining approval than the broadcasters might have expected. Reps. Ted Deutch and Darrell Issa stood on Capitol Hill among a group of performing artists, including Dionne Warwick and Sam Moore, to announce AMFA, and as Rep. Issa told reporters that day, the longstanding rule of “not one penny” is a bad faith arrangement that needs to be made right.

The United States is unique among major markets for its failure to pay royalties to musical artists for traditional (terrestrial) radio play, and this despite billions in ad revenue that simply would not exist without the music. Additionally, because U.S. radio does not pay royalties to any artists, American performers are typically excluded from royalty opportunities in foreign markets as well as at home. Thus, it could feel like an all too familiar gut punch if Congress were to swiftly pass AM Radio in Every Vehicle without passing the American Music Fairness Act (AMFA) at the same time.  

Although terrestrial radio may be shrinking—slowly crossfading to digital platforms—there is clearly enough terrestrial broadcast that iHeart, Cumulus, et al. are willing to fight the passage of AMFA to avoid paying musical artists a fraction of their billions in annual ad revenue. And as if it were not obvious that the local radio station is as rare today as the local newspaper, NAB does not hesitate to play the small-station victim card in opposition to Music Fairness. In a December 2022 statement thanking House committee members for voting against AMFA, NAB writes:

The American Music Fairness Act would mandate a new performance royalty on free, local radio stations that would jeopardize local jobs, prevent new artists from breaking into the recording business and harm the hundreds of millions of Americans who rely on local radio.

Of course, NAB omits the fact that AMFA establishes fees as low as $10/year for truly small operators, just as they omit the fact that, for instance, over 800 “small” stations in the U.S. are owned by one mega-corporation called iHeart. As for “preventing new artists from breaking in,” that’s a specious claim. Music is the only reason anyone tunes into certain radio stations, and if a station fails to play what someone wants to hear, the station will lose the listener not the artist. Because in case National Association of Broadcasters missed the memo, music discovery for the two youngest generations happens on a whole bunch of platforms that ain’t radio. 

In a September 7 statement, NAB praised the 150 House cosponsors of the AM Radio bill, stating, “The incredible bipartisan support the AM Radio for Every Vehicle Act has garnered in just a short time is a testament to the integral role AM broadcasting plays in informing, entertaining and connecting Americans across the country.” Perhaps. But frankly, the bills offer so much political cover—from playing a role in the Emergency Alert System to allegedly protecting conservative talk shows—that it’s possible few Americans will care whether Congress may be handing a gift to Big Radio.

But if AM Radio in Every Vehicle does become law, it will be hard to ignore the faint aroma of protectionism for an industry that needs no protection. Meanwhile, the musical artists, including background performers you’ve heard but never heard of, could use a little support from their representatives and finally receive a fair share of revenue from the market they made possible in the first place. If Congress is determined to suddenly mandate more terrestrial radio in vehicles, then it should also decide to finally protect the musicians who are often the only reason we enjoy the ride.  

Photo by: CelsoDiniz