No FAKES Act Matched in House Bill to Address Gen AI Replication

no fakes

On Monday, beloved actor James Earl Jones passed away at age 93, but in 2022, he signed an agreement with LucasFilms to allow the voice of Darth Vader to live on through Gen AI replication. Jones’s permission to replicate his voice is a bittersweet prelude to today’s news from Capitol Hill, where the House of Representatives introduced its own No FAKES Act to prohibit the unlicensed replication of any person’s likeness or voice. Sponsored by Reps. Salazar, Dean, Moran, Morelle, and Wittman, the House bill is identical to the Senate No FAKES Act introduced in late July and, so, demonstrates a bicameral, as well as bipartisan, sense of urgency to address misuse of Gen AI for this purpose.

To recap, No FAKES establishes a new property right in the likeness of any person and prohibits unauthorized replication of a likeness, which includes voice. Historically, likeness has only been protected on a limited basis by a patchwork of state Right of Publicity (ROP) laws, typically prohibiting unauthorized use of a celebrity likeness for commercial/advertising purposes. But the unprecedented capability of Gen AI to be used by anyone to replicate the likeness of anyone—and which will exacerbate the reality-bending world of online “information”—has prompted Congress to move swiftly and, in my view, creatively.

It was July 2023 when the idea of a federal ROP law was discussed during a hearing held by the House Judiciary Committee Subcommittee on Intellectual Property. At the time, I imagined this was a prelude to years of haggling on Capitol Hill while Gen AI developers proceeded at internet speed to wreak havoc with tools to produce more advanced “deepfakes.” Instead, the introduction of No FAKES in the Senate just one year later—and now, the same bill in the House less than two months after that—reveals both seriousness and deftness in legislators’ zeal to confront the issue. Rather than approach the matter as one to be remedied by a federal ROP law, Congress, with input from various stakeholders, has responded to the novelty of the challenge with novel legislation, drawing upon principles found in ROP, trademark, and copyright law.

If passed, No FAKES would operate akin to ROP, but it automatically applies to every citizen, and unlawful replication is not limited to commercial/advertising purposes. At the same time, because many misuses of Gen AI replication have both reputational and commercial implications, No FAKES shares a kinship with trademark, which is a creature of the Commerce clause. And finally, the new right is copyright-like as a property right which vests in the individual, may be licensed for various uses, and is descendible to heirs and assigns with certain limits and conditions unique to protecting likeness.

Opposition Is Familiar but the Battlefield Is Different

Many of the usual suspects representing Big Tech, including the newly formed (I can’t believe they called it this) Chamber of Progress, will likely raise constitutional challenges to No FAKES, leaning hard into the refrain that the new likeness right will chill protected speech. As to the merits of that argument, the text of the bill already includes well-crafted, First Amendment-based exceptions; and as a PR message, I believe Big Tech is refreshingly at a disadvantage. Concerns over abuse of Gen AI encompass a broad range of Americans—from professional creators to parents seeing how easily children can be sexually exploited—and in general, people just aren’t buying Big Tech’s “make life better” rhetoric anymore.

Examples of legitimate innovation (e.g., Jones permitting Darth Vader to continue, or Randy Travis overcoming physical voice loss) will entail permission of the person whose likeness or voice is being replicated. Yet, in response to the many harms which may be caused by unlicensed Gen AI replication, AI defenders will promote the overbroad refrain that “innovation” must be allowed to flourish — but of course, “innovation” is Big Tech’s euphemism for “profitability at any cost.” Congress is still playing catch-up to address myriad harms fostered by pre-AI social media and is, therefore, reluctant to repeat the mistakes of the late 1990s by allowing Gen AI “room to grow” without restrictions.

Interestingly, Chamber of Progress appears designed to frame the multi-billion-dollar AI gamble as socially and politically “progressive,” a strategy belied by its advocating broad liability shields for AI developers akin to Section 230 of the CDA and Section 512 of the DMCA. In fact, that view aligns perfectly with Open AI CEO Sam Altman suggesting that it is impossible to develop without free use of copyrighted works, or with investor Marc Andreesen writing a smug and erroneous manifesto as a plea for continued laissez-faire policy in all things tech. If there is anything “progressive” about Gen AI, Chamber of Progress will need to produce more than worn out rhetoric to prove it.

We’ve been here and done this, but No FAKES is a bill with a lot of political momentum. The likelihood that many citizens will oppose a prohibition on the unlicensed use of their own, or their children’s, likenesses seems low to the point of futility. We’ll see what comes, but by my lights, No FAKES is destined to become law.

Image by: nikolay100

Heroes and Villains in Copyright Fights

heroes

After Internet Archive (IA) lost its copyright infringement suit with major publishers this week, the organization wasted no time alleging that great harm has been done to society. As if it had the posts ready to go, IA alleged that research itself was in peril and even went so far as to shamelessly post on X that works by Orwell and Bradbury are now “no longer available”—as if its unlicensed repository provided the only access to 1984 or Fahrenheit 451.

If you don’t see the hypocrisy in citing those titles for the purpose of propaganda, you might as well not read the books. Funny, though, that literature is the subject because it is only human nature to consider even complex matters of law and policy through narrative. And because narrative requires heroes and villains, IA presumes to play the Rebel Alliance to the publishers Empire. One problem with this perspective is that if one insists the publishers are “villains,” then one must assume the authors are as well. Because here’s how things work in reality…

Every author owns the copyright rights in her book the moment the manuscript is finished. Whether she signs a deal with Random House or a small, independent imprint, she transfers at least part of her claim of copyright to the publisher in exchange for the publisher’s investment in producing, distributing, and marketing the book. Publishing agreements vary greatly, and sometimes, authors are disappointed. Nevertheless, most authors seek publishing deals rather than self-publish, and nobody commenting on the IA lawsuit should presume to tell authors that they are wrong to work with publishers.

Among the rights owned by the author is the right to “prepare derivative works.” With books, this means derivatives like translations, serials, motion picture adaptations, eBooks, and audiobooks. Typically, the author will transfer the right to prepare eBooks and audiobooks to the same publisher who produces and distributes the hardbound and paperback copies. Consequently, the author’s interest is aligned with the publisher’s interest in selling these electronic versions of the book. And quite often, the author’s share of audio and eBook sales is a higher percentage than her share in the sales of physical copies.

One way in which authors receive compensation from eBooks is through a variety of licensing regimes used by libraries around the country. Although there is no evidence that these licensing models hamper a library’s ability to serve its community, certain individuals, including IA founder Brewster Kahle, object to these licensing regimes as a matter of some principle they invented. That “principle” really comes down to the fact that they simply don’t like copyright rights, and Kahle et al. have made that very clear in public statements.

In fact, despite all the good IA provides with its database of hard-to-find works long in the public domain, Kahle’s fervent anti-copyright ideology seems to drive him to risk that worthy enterprise just to prove a point about which he is entirely wrong. In simple terms, IA et al. were determined to prove that libraries are entitled to prepare derivative works (i.e., make and distribute their own eBooks) instead of the publishers to whom those rights were assigned by the authors.

IA’s legal theories were so unfounded that the district court issued a judgment less than a week after oral arguments. And now that the appeals court has affirmed the obviousness of that judgment, IA is playing the victim on social media, like Icarus blaming the sun and gravity for his fate. In literary terms, we might recognize Kahle’s persistence against reason as that fatal flaw which can turn heroes into anti-heroes or villains. And wouldn’t it be a classic tragedy if the guy who wants to build the “New Library of Alexandria” managed to burn it all down in a grand display of hubris?

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End of the Line for Controlled Digital Lending Theory

controlled digital lending

IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors.

The Second Circuit Court of Appeals yesterday affirmed that Internet Archive’s digital book lending model controlled digital lending (CDL) is not permitted by copyright law, including under the fair use exception. The outcome is a big deal and, at the same time, is not really big news. Copyright watchers grounded in what the law is (rather than what they wish it to be) were likely relieved but not surprised that the appeals court upheld a judgment, which the lower court originally issued just four days after oral arguments.

The lawsuit Hachette et al. v. Internet Archive was triggered by IA’s so-called National Emergency Library (NEL), an alleged response to the COVID shutdown whereby it arbitrarily made over one million digital books available without any kind of restriction. Because IA had no basis on which to claim it was responding to an “emergency” need, I maintain the NEL itself was a stunt designed to provoke litigation and take Brewster Kahle and friends’ copyright theories out for a ride. And as of yesterday, that ride is probably over.

Specifically, IA and a small group of academics hoped to prove that controlled digital lending is permitted by fair use. CDL is based on the theory that a library is permitted to make its own digital copy of a physical book in its collection and to loan either the digital or the physical copy to one reader at a time—and to then apply the scheme for as many physical copies as the library owns. Further, IA expanded the concept to create its Open Library by “partnering” with various libraries around the country to effectively count the physical copies on all those shelves and increase the number of readers to which the digital copies would be loaned.

The Second Circuit affirmed not only that the Open Library model is not permitted but that the CDL practice is not a fair use—even if it were limited to the physical books in IA’s possession. With the one distinction that the circuit court reversed the lower court’s finding that IA’s purpose is “commercial” under fair use factor one, IA lost resoundingly on all four fair use factors.

In short, CDL is not transformative under factor one because its purpose is no different than the legal eBook lending models offered by publishers. This finding informs factor four. Because the purpose of the use is not transformative, the CDL scheme amounts to a market substitute and is, therefore, a potential market harm. Factors two (nature of the works used) and three (amount of the works copied) barely warrant discussion. The books in suit are expressive in nature, which favors the plaintiff; and IA does not dispute that it copied and made whole books available. Copying whole works may be permissible, but only possibly if the use is transformative.

Since before this suit began, IA has claimed to be a champion for all libraries, even going so far as to assert that CDL is simply doing what all libraries do—i.e., to “buy books and loan books.” But that rhetoric, conveniently facile for the media, obfuscated the more complex truth that IA, its colleagues, and supporting amici were pushing a theory with no foundation in law. CDL is a self-indulgent thought experiment for a handful of academics and activists with no skin in the game of creating literary works. And IA’s claim to be acting like any other library was simply untrue.

To those who believe the law should be different to facilitate IA’s alleged social benefit, I have considered the intent of CDL (and the alleged burden of eBook licensing) and find no evidence to support the claim that CDL fulfils an unmet need. In fact, as stated in past posts, Kahle’s dream of digitizing everything and making it all freely available is not only harmful to future authorship but is a threat to local libraries. Further, it bears repeating that the publishers in this case represent thousands of authors, while IA represents the interests of no authors.

I get why even creators are often persuaded by Internet Archive’s claims. After all, creators tend to love libraries and are instinctively wary of corporations, including publishers. But to put this in contemporary context, IA’s mass digitization and “lending” scheme, which would harm future authorship, is hardly much better than AI’s mass digitization and “training” scheme, which would also harm future authorship. (See what I did with the letters there?) Mass copying and distribution of protected works should always be viewed skeptically because the purpose is rarely transformative and non-threatening to creators. As the court states in yesterday’s judgment:

Within the framework of the Copyright Act, IA’s argument regarding the public interest is shortsighted. True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.