Category: Culture

The Campaign to Defend Generative AI

generative ai

I have not written steadily about AI and copyright because, frankly, it’s exhausting. Not quite as exhausting as watching the state of the Republic overall, but almost as relentlessly incoherent and repetitive. For instance, Winston Cho for the Hollywood Reporter describes a PR and lobbying campaign by the tech coalition Chamber of Progress to defend the importance of generative AI (GAI). The article quotes founder and CEO Adam Kovacevich thus:  “Gen AI is a net plus for creativity overall. It’s expanding access to creative tools for more and more people and bypassing a lot of the traditional gatekeepers.”

That GAI may yield some beneficial tools for creators is plausible, but the whole “access” and “gatekeepers” rhetoric is a misguided anachronism from a group calling itself the Chamber of Progress. Perhaps “Confederacy of Tech Overlords” was too on the nose, but the generalized argument that GAI represents a “democratic” shift away from gatekeepers, stands on the rubble of experiments that have already failed. I doubt there is a professional creator left who hasn’t figured out that Big Tech’s promise to liberate them from traditional gatekeepers is like a human trafficker promising his next victim a job in a foreign country. Whatever was imperfect about the old models, the new models are more exploitative and hazardous for the average creator.

More precisely, while the alleged “liberation” from older distribution channels might have seemed attractive, GAI is about production, and I am confused as to who the “gatekeepers” would be on the production side of the equation. To the extent, say, Midjourney might enable me to illustrate or paint without any drafting or painting skills, the “gatekeeper” is who exactly? Nature failing to gift me with those skills? Or if we think big, and I can make a whole motion picture without ever turning on a camera, I still fail to see who the “gatekeeper” is in the overreaching promise from the tech industry.

Despite how cutting-edge and “essential” GAI is supposed to be, Big Tech has nothing fresh to say in its advocacy. The theme of “democratization” is the same weather-beaten argument they’ve been flogging for years, one that has proven disastrous for information and the state of real democracy—and which GAI can only make worse. Nevertheless, the Chamber of Progress campaign, as reported by Cho, seeks to promote a sweeping policy that AI developers should be broadly shielded from liability, including copyright infringement claims.

The question of copyright infringement for ingesting works for machine learning (ML) is currently at the heart of several lawsuits. I’ve lost track of them all, but arguably the most solid claim to date is New York Times v. OpenAI et al. because the evidence of copying (i.e., that what went into the model came out of the model) is so compelling. On the other hand, it is worth watching those cases where “reproduction” is less evident and, therefore, where the question may be more thoroughly addressed as to whether ML is a purpose that favors fair use of protected works.

As we have seen in defense of social platforms, Big Tech will spray the blogosphere with the term “fair use,” and copyright antagonists (mainly in academia) will echo the broad claim that of course ML is fair use. Notwithstanding the bugaboo that the fair use doctrine rejects the notion of a general exemption, I would argue that the case law points the other way, including the Supreme Court decision in Andy Warhol Foundation v. Lynn Goldsmith. To the limited extent that opinion addresses the ML question at all, its reigning in of the “transformativeness” test is more likely to disfavor the AI developers. Big Tech’s claim is that GAI is broadly “transformative” as a technological accomplishment, but Warhol and other decisions reject such a sweeping interpretation of that aspect of fair use factor one.

Further, as argued in this post, I remain unconvinced that GAI necessarily advances the purpose of copyright to promote new authorship as a matter of doctrine. For instance, if a given work created by GAI cannot be protected by copyright, then the material is, by definition, not a work of “authorship.” As such, this purpose should doom a fair use defense, in my view. Regardless, Big Tech will not be satisfied with the outcomes of any lawsuits, even if the developers win some. What they want is blanket immunity for infringement liability and an affirmation that GAI is truly as important as they say it is. That’s why this paragraph in the Hollywood Reporter story caught my attention:

In comments to the Copyright Office, which has been exploring questions surrounding the intersection of intellectual property and AI, Chamber of Progress argued that Section 230 – Big Tech’s favorite legal shield – should be expanded to immunize AI companies from some infringement claims.

Why highlight that? Because the absence of legal foundation is telling. Not only does Title 47 Section 230 have nothing to do with copyright infringement, but both that law and its copyright cousin, Title 17 Section 512, address the subject of users uploading material to platforms. Neither law says anything about scraping the web to feed material into an AI model for the purpose of ML. Nevertheless, it is clear from reading the actual comments by Chamber of Progress to the Copyright Office that Big Tech recommends policymakers take lessons from both statutes to carve out new liability shields to support the advancement of AI.

Despite the fact that neither §512 nor §230 has proven effective in limiting copyright infringement or dangerously harmful material online, the Chamber of Progress comments reprise Big Tech’s unfounded talking points regarding both statutes. Written by counsel Jess Miers, the comments repeat the false allegation that §512 fosters rampant, erroneous takedowns and also argues that because of §230, “most UGC services go to great lengths to proactively clean-up awful content and provide a safe and trustworthy environment for their users.” Not only will my friends and colleagues fighting Image-Based Sexual Abuse, online hate, and scams be very surprised to learn that, but so will Congress.

One of the scant points of agreement on Capitol Hill these days is that lawmakers have grown weary of liability shields for Big Tech, which has done a poor job of mitigating the worst harms facilitated by their platforms. Section 230 is so ripe for amendment that I’m surprised the Chamber of Progress invoked it, let alone in comments to the Copyright Office which only deals with, y’know, copyright law. More broadly, though, when GAI implies myriad harms beyond copyright infringement, the last thing Congress should do is grant Big Tech more latitude to do whatever it wants in the name of “progress.”  We tried that approach. It sucks.

NYS Assembly Led Down the Primrose Path on eBooks Again

NYS Assembly

In December 2021, New York Governor Hochul recognized that she must veto a bill that would have prescribed the manner in which publishers may provide eBooks to public libraries. It isn’t necessary to rehash the details of that legislation—I wrote several posts about eBook bills—but only to restate the reason for the veto:  the law was unconstitutional. Why? Because state laws proposing to dictate terms for making in-copyright works available, even for libraries, is preempted by federal law.

Nevertheless, Assemblyman Angelo Santabarbara has introduced a new bill (A10544) that, although its mechanisms are different from the 2021 bill, is still unconstitutional. In fact, the operative part of the bill which, for instance, prohibits digital rights management (DRM) technology, would have the effect that a library is free to make eBooks available in any manner it sees fit and without limits of any kind. This plainly violates the Copyright Act. Even if the purpose of the proposal were well-founded in service to the public—and it is not—the states are simply not permitted to pass their own laws governing the terms under which copyright owners may distribute works to the market.

In addition to Gov. Hochul’s clear-eyed veto in 2021, related eBook bills have been proposed, litigated, and shot down in several states, begging the question as to why lawmakers seem determined to die on this meaningless hill. As discuss in this post examining the mid-sized library system serving my region in New York, there is no evidence suggesting that the public is underserved or that the current licensing regimes are so onerous as to harm the operation of libraries. Frankly, even if licensing were onerous, these laws would still be unconstitutional, but the combination of federal preemption and pointlessness does make one wonder–but not really.

These eBook bills are all variations on the same thematic effort by the same lobbying groups seeking to push an anti-copyright agenda using the Trojan Horse of the public library. Copyright antagonists couldn’t prove DRM, governed under DMCA Section 1201, was unconstitutional, so they try chipping away at the principle through state legislatures, masked beneath the white hats of institutions we all love. And indeed, because I do love libraries, I continue to hope that they will stop running interference for organizations that have neither libraries’ nor readers’ nor certainly authors’ best interests at heart. If nothing else, continuing to introduce bills that run afoul of Article I Section 8 is a waste of everybody’s time.

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Committee Talks Sunsetting Section 230 to Prompt Action by Big Tech

Section 230

Yesterday, the House Energy & Commerce Committee held a hearing to discuss draft legislation that would sunset Section 230 of the Communications Decency Act on December 31, 2025. If passed, the law would start a countdown toward abolishing Section 230 with the real intent to force Big Tech to cooperate on meaningful reform. Said reform would seek to mitigate the worst harms facilitated by misapplication of the law as a blanket liability shield for online service providers (OSPs) who host user generated content (UGC).

The Committee heard from witnesses Carrie Goldberg, a prominent attorney for victims of cybercrime; Marc Berkman, CEO of Organization For Social Media Safety; and Kate Tummarello, Executive Director of Engine, an advocate for “pro-startup and pro-innovation policy.” Goldberg and Berkman testified in favor of the sunset proposal, and Tummarello testified against the bill, though she stated more than once that her constituents are not opposed to Section 230 reform.

Thus far, most congressional hearings about “holding online platforms accountable” have been political theater, and this hearing was no different, other than the fact that the sunset proposal is overtly theater. Committee members acknowledge that the goal is not to abolish Section 230, or at least not its original intent, but we shall see whether the sunset bill becomes law and, if so, whether it compels the tech giants to negotiate in good faith.

In the meantime, it would help if Congress would stop echoing Big Tech’s main talking point—namely that Section 230 is about free speech, let alone speech neutrality. While most Committee Members reflected understanding about the serious harms facilitated by the erroneous application of Section 230, a few Members made parenthetical comments about protecting speech, and Rep. Harshbarger (R-TN) opined that “liberal sites like Facebook” censor “conservative” content.

Aside from this recurring allegation being unfounded in fact, Section 230 has nothing to do with the speech right or with viewpoint neutrality. Indeed, if it did—if Congress wrote a law mandating content neutrality, THAT would be a violation of the First Amendment. As Goldberg stated during questioning, “The platforms are free to moderate however they want.” So, every time Congress mentions speech in context to Section 230, it only amplifies Big Tech’s big lie that their platforms are an “engine of free expression,” which is unhelpful to sensible amendment of the law.

To clarify that point, yes, platforms host a lot of expression, but the OSPs are not bound to foster content neutrality by the First Amendment, and they do no such thing by operation of their sites. It is a matter of record that the social platforms adjust their algorithms to push or demote content for users based on user behavior in a constant and dynamic interplay between the two. The goal of these operational decisions has nothing to do with the speech right—indeed one can argue they stifle speech in several ways—and everything to do with maximizing profitability for the platform.

Next, it would be great if Congress could keep its eye on the ball and remember that Section 230 reform is not about creating new direct liability for all online platforms for harm done by users. To put it bluntly, Section 230 reform is about instructing the courts to stop tossing out every claim and every prayer for injunctive relief, solely on the basis that the statute requires this result at summary judgment. That was never the intent of the law, but the courts’ conclusions to the contrary demand that Congress act.

Nevertheless, during Q&A with witnesses, some Members seemed either to mischaracterize 230 reform as new regulation or as opening the door to a flood of direct liability claims. Here, Tummarello, as a representative for startups, stressed the fact that small companies cannot compete with the giants by moderating every post and comment on their sites. Frankly, the tech giants can’t achieve this goal either, but this is part of the theater because the concern is only relevant if Section 230 is indeed abolished.

By contrast, reforming the law does not need to oblige every platform to catch every potentially harmful bit of content. Indeed, sensible and workable reforms have been proposed by, for instance, Danielle Keats Citron recommending small but significant changes to the language. The goal is to retain the original intent to shield “Good Samaritans” against wanton lawsuits while directing the courts to find that relevant facts can void the liability shield.

For example, one of Carrie Goldberg’s high-profile cases involved a man named Juan Gutierez who used the dating app Grindr to target Matthew Herrick for harassment, abuse, and physical violence. Gutierez created a fake account pretending to be Herrick and invited random men to find him and fulfill his “rape fantasies.” Section 230 has nothing to do with the conduct of Gutierez, who was convicted for his crimes, but the law shielded Grindr from even going to court, despite Goldberg presenting evidence that volitional conduct by the platform caused and exacerbated the harm to Herrick. In short, Goldberg et al. are simply asking Congress to instruct the courts to allow meritorious claims against OSPs to be litigated—just as with any other defendant operating any other type of business.

Equally frustrating in this regard is the importance of injunctive relief, and I was surprised not to hear it come up during the hearing. Amid all the talk about Section 230 “fostering innovation” by shielding startups from a flurry of lawsuits, people lose sight of the fact that a platform need not be directly liable, or even a named party to a suit, to simply do the right thing and remove harmful material upon request. Unfortunately, the culture and profit motives of OSPs too often resists removing any material ever, and Section 230 has prevented courts from ordering those removals to mitigate harm to victims.

Presumably, there will be some wailing and teeth-gnashing from the usual suspects who defend the status quo of the “internet as we know it.” The EFF already groused about the sunset proposal ahead of the hearing, and we’ll see who else joins that peanut gallery. Either way, it is frustrating to know that meaningful reform can be achieved by changing a few key words in the statute—words that would maintain the original intent of Section 230 but which would stop protecting platforms over people. As Carrie Goldberg testified, the Seventh Amendment demands that victims of sexual abuse, trafficking, drug-related scams, harassment, and other devastating harms must all have their day in court.

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