Over the weekend, I had the privilege of participating in the 11th annual Mosaic Conference, organized by the Institute for Intellectual Property and Social Justice (IIPSJ) and hosted by Suffolk University Law School IP Center. Founded by Professor Lateef Mtima at Howard University, IPSJ’s mission is to “…examine intellectual property law and policy—as well as the IP regime in total—to see where full participation of disadvantaged, excluded, and marginalized groups may need redressing.”
A number of subjects were raised that will inspire some future blogs, but in the meantime, the following contains my remarks about the folly of “democratization,” slightly edited for this format:
To quote Professor David Golumbia from his posthumously published book, Cyberlibertarianism: The Right-Wing Politics of Digital Technology, he writes, “As a rule, ‘democratization’ appears to mean tearing apart institutions, regardless of their nominal functions, including institutions whose purpose is to promote or even embody democracy.”
This is a very difficult moment to talk about knitting people and nations together when the exigent forces are so obviously centrifugal. The historian Joseph Ellis uses that word centrifugal in his book The Quartet to describe the sentiments of the newly independent American states and their reluctance to form the union, and it is hard to believe that that era, when roughly 4 million farmers barely knew the world more than 30 miles beyond their homes, might be compared to our digitally and globally interconnected present. But in my view, Big Tech’s claim to want to “democratize” everything, beginning with cultural works protected by copyright, was and remains catalytic to the struggle we now face to rescue the common cause of democracy.
In the United States, as the republican foundations that even allow room for discussions about social justice are under attack, we confront an authoritarianism that we recognize from history paired with a threat of technological feudalism that is unprecedented. At the same time that civil rights hills attained decades ago must now be reclaimed, rapid technological advancements in artificial intelligence also present new potential modes of injustice, and that challenge has many IP implications.
A simple example I have used recently begins with a friend in medical law who predicts that an AI will soon be better at reading a diagnostic scan than a human radiologist. He’s probably right, and of course, such promises, like improved healthcare, animate the political rhetoric used to promote yet another era of laissez-faire tech policy in the name of undefined “innovation.” As Jaron Lanier wrote in 2010, “People will accept ideas presented in technological form that would be abhorrent in any other form.” I think this captures why the word innovation is allowed to sweep a million sins under a million rugs.
My friend’s medical example begs critical questions about who will own that technology in a winner-take-all market that often stifles competition, and, therefore, whether the tech will improve healthcare for more people or fewer and on what terms. Alternatively, while AI diagnostic tools might improve the quality of care for the few, will AI actuarial tools be used to deny access to the many? Of course, patent law, about which I know very little, will play a substantial role in the many questions implied by the medical example.
But in a copyright context, Silicon Valley, with the help of far too many IP academics, promoted the “democratization” of access to, and use of, cultural works via the allegedly free platforms. This egalitarian rhetoric was so appealing that even many professional creators echoed the sentiment and bought into the promise of working around traditional gatekeepers and forging more “organic” connections with fans. Today, fewer professional creators fare as well as their “pre-democratized” forerunners.
In that PR campaign funded by Silicon Valley, the making available rights and derivative works right in particular were portrayed as anachronistic principles exclusively serving Big Media “landlords” controlling all culture and information. And while I might join certain criticisms of Big Media, especially consolidation of the industry, the “landlord” metaphor was and still is applied even to the independent artist who might presume to enforce her copyright rights.
More broadly, the underlying hypocrisy of this rhetoric is that “landlord,” of all words, is a far more apt description for the owners of virtual real estate, where information does not flow freely but is manipulated by algorithms designed to maximize and monetize even the most toxic forms of engagement. And of course, this includes both rampant copyright infringement and legal uploads of works that have now been harvested for the purpose of training artificial intelligence.
With generative AI, Big Tech—again with the help of many in IP academia—now promotes the alleged value of “democratizing” the production of works, finally revealing democratization as the anti-humanist and, therefore, anti-democratic term that it truly is. We have several current examples in amicus briefs, academic papers, and even one court’s opinion in the Bartz case, in which parties argue that mass production of material by machines somehow fulfills the original purpose of copyright law. For those following Thaler v. Perlmutter, Dr. Thaler’s recent petition for cert at the U.S. Supreme Court argues that the Copyright Office’s affirmation of the human authorship requirement “defies the constitutional goals from which Congress was empowered to create copyright, namely, the creation and dissemination of creative works.”
This is wrongly stated, but the attempt to undermine the human authorship doctrine is, of course, consistent with Big Tech’s ideological view that individual human agency is an outdated nuisance—a bug to program around in pursuit of a grand, tech-utopian dream. Or to put it another way, the scorn for human authorship is in harmony with Mark Zuckerberg recently proclaiming that the future of companionship is one in which we have more robot friends than human ones.
Long after the dust settles on the legality of AI model training with protected works, fundamental questions of social justice in a world with generative AI will need to be addressed. In addition to many examples in which these products are already causing social harm—most acutely adverse psychological effects among children and teens—generative AI can potentially swallow, or perhaps smother, economic opportunities for diversity of expression, perhaps even accelerating the current trend of government censorship.
In that regard, I find it astounding that the copyright skeptics in academia, generally aligned with the political left, promoted democratization by portraying copyright as a tool of censorship rather than as a mode of empowerment for authors. While the free market is not a perfect answer to all challenges, the spike in sales of Art Spiegelman’s Maus after it was banned in 2022, or even the market’s response forcing the restoration of Jimmy Kimmel are, in my view, examples of why the speech right and copyright more often act in concert as a force for democratic principles.
Notably, the IP skeptics have inveighed against strong copyright rights by arguing social justice principles, as if, for instance, the right of access without copyright’s boundaries is the moral equivalent of the right to read campaign now confronting real censorship. Moreover, social justice for the artist is often omitted by that school’s overstating a purely utilitarian foundation for copyright. Not only is that perspective belied by history, but it seems to me that for an IP regime to encompass social justice values, some natural rights principles must apply.
In fact, in this light, I think it is noteworthy that rather than pursue a federal publicity right in response to AI’S potential to replicate anyone’s likeness, the NO FAKES Act currently before the U.S. Congress borrows principles from trademark, copyright, and right of publicity to create a novel IP right in one’s voice and likeness. Perhaps this moves the U.S. one step closer to some of the moral rights principles that animate copyright law in other countries.
It is no surprise that the tech industry so aggressively attacked intellectual property rights by selling the chimera of “democratization.” IP rights, at their best, foster an expansive and diverse world of competing ideas, whereas Big Tech’s interests—and the interests of authoritarians—are best served by organizing people into bunkers of competing realities. This epistemic crisis, I firmly believe, explains the wanton destruction of so many democratic institutions. And with generative AI, of course, it is easy to see how mass automation of synthetic material, posing as creative and informative works, is likely to exacerbate this problem.
Democratization is a beguiling term that no longer describes movement toward democratic forms. It exploits the language of democracy to mask an ideological contempt for democratic institutions and individual agency. It is a centrifugal force driving people, communities, and nations apart—a path to social, economic, and political anarchy, where bullies win and justice does not exist. Consequently, I would ask those in IP academia to be vigilant about the distinction between democratization and democracy and to push back on the rhetoric of the former in the hope that we can still rescue the latter.
