Did Big Tech Light the Dumpster Fire?

Big Tech

It is unoriginal to refer to Donald Trump as a useful idiot, but the question as to whose idiot invokes both plausible and fantastical theories combined with sundry lampoons on social media. That Trump is Putin’s lapdog, for example, remains a popular theme, but Gil Duran, writing for The New Republic, makes a solid case that Trumpism, and specifically the reinvention of J.D. Vance, is the playbook of Silicon Valley’s billionaire ideologues who avowedly hate democracy.

There’s a video clip I’ve scrolled by a few times recently in which Pete Buttigieg tells Bill Mahr’s audience that Silicon Valley’s pivot toward Trump is explained by the simple fact that “These are very rich men, and historically the Republican party benefits very rich men.” But as much as I admire Sec. Buttigieg’s intellect and style, I think Duran is closer to the mark when he describes men like Peter Thiel and Elon Musk as having plenty of money but now want all the power their money can buy. And not the kind of old-school power that merely influences policy to make them more money. Instead, the ambition of these tech oligarchs is ideological, arrogant, nutty, and possibly more dangerous than the hardline religious right with its fantasies of an American Christian theocracy.

“I no longer believe that freedom and democracy are compatible….Since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” – Peter Thiel, CATO Institute 2009 –

Duran, in his article published on July 22, describes the relationship between Thiel, Vance, and the “house philosopher” of Thiel’s inner circle, a software engineer and apparent kook named Curtis Yarvin. Yarvin advocates a techno-feudalist future, which Duran describes thus:

Among other things, it openly promotes dictatorships as superior to democracies and views nations like the United States as outdated software systems. Yarvin seeks to reengineer governments by breaking them up into smaller entities called “patchworks,” which would be controlled by tech corporations.

It’s the stuff of dystopian sci-fi movies and should be dismissed as raving but for the fact that Thiel et al. take this shit seriously—and Thiel is the money and force behind the metamorphosis of JD Vance from ordinary Republican into the automaton Veep nominee parroting “ideas” that are blatantly unconstitutional. In this light, then, should we read Vance’s outlandish, Trump-like provocations as part of the Pay Pal Mafia’s ground-softening campaign? Because if one sincerely believes in a plan to reengineer society into a corporatized “patchwork” as described above, one must first convince some of the population to get comfortable with creeping authoritarianism. Or perhaps it is sufficient to simply make enough people uncomfortable with republicanism—a disorder that I maintain social media has fostered across the political spectrum.

In 2012, writing about the technological singularity, I asked, “What if what’s really happening is that technologists with the power to design these life-altering systems have intellectually and spiritually moved beyond the idea that the human individual has much, if any, value?  In this case, it would be obvious that the rights of an artist, for example, would indeed look like a trifling glitch in the design that ought to be routed around like a bad line of code. After all, what right has the individual to assert his uniqueness in the march toward utopia?”

Let’s return to 2011/12, when Democrat, Republican, and Independent alike generally believed that social media companies, proclaiming themselves guardians of the speech and press rights, had provided the antidote to all corporate and government corruption. Google et al. preached the gospel that the “free flow of information” online would break the major media corporations’ “monopoly” control of news and cultural “content.” This populist notion fueled the anti-copyright/pro-piracy agenda, which should not be read as a story about copyright per se because the subtext of the gospel was that individuals with their pesky rights in their own work products were not going to stand in the way of a new world order. Silicon Valley wasn’t saying this overtly of course. On the surface, the message was egalitarian—a moral mandate to disrupt (i.e., “democratize”) everything, and this is still a key talking point in the PR about the alleged importance of Gen AI.

I have said it over and over—and I’ll say it until the internet breaks:  the major significance of Silicon Valley’s deceptions in beating back the anti-piracy bills SOPA/PIPA in early 2012 was that it signaled a new insidious form of corporate manipulation of American politics. And at Google scale. The industry and its acolytes at the EFF et al. weaponized the rhetoric of “democracy” (namely the speech right), not simply to lie about bipartisan legislation, but to assert the primacy of online platforms over the traditional institutions of government. The message was, “YOU did it! YOU saved the internet!” Of course it was all bullshit. And at Google scale.

We may ridicule Trumpians today for “doing their own research” to support wild conspiracy theories about vaccines etc., but let’s not forget that time when “liberals” sported or cheered for the “Guy Fawkes” mask from V for Vendetta as if that ahistorical symbolism somehow represented a new tech-enabled form of “speaking truth to power.” In reality, of course, all that “hacktivism” was simultaneously eroding faith in real participation in government while feeding Big Tech the data it needed to arrogate political power to its private club of Ayn Rand Übermenschen.

Recognition that social platforms were toxic, particularly after the election in 2016 of a president who lies with every word, led to a fleeting moment of navel-gazing  dubbed the “techlash.” Whistleblowers and Silicon Valley defectors came forward to affirm that social media induced harms were not a bug but a feature. “Profit over safety” was the general message Frances Haugen brought to Congress about Meta, and lest we forget, Mark Zuckerberg’s only answer was that Meta’s investments in “artificial intelligence” would fix everything.

I get that this begins to sound like conspiracy theory itself but for the fact that, as Duran reports in his extensive coverage, individuals like Thiel, Musk, Ray Kurzweil et al. have unwaveringly advocated strange and dystopian “visions” for the future of humanity. As this story in the Washington Spectator describes…

Dr. Timnit Gebru, a prominent AI researcher fired from Google in 2020 for speaking up against what she perceived as the company’s lack of proper ethical guardrails, has partnered with other researchers and philosophers to coin the (somewhat unwieldy) acronym “TESCREAL” to describe the overlapping emergent belief systems that characterize the contrarian, AI-centric worldviews challenging progressivism. It stands for: Transhumanism, Extropianism, Singularitarianism, Cosmism, Rationalism, Effective Altruism, and Longtermism.

Speaking as a secularist with a disdain for magical or spiritual thinking that borders on hostility, I admit to harboring an innate distrust of all isms. But uber-wealthy, smug tech-lord isms are acutely concerning because those are the beliefs of men who own or control the major modes of communication, which transform even criticism like this post or one of Duran’s articles into data that can be used to alter the course of history. Thus, when Vance insults Simone Biles or Trump is an asshole at the NABJ Conference, all the posts about those moments—even the outrage—feeds a dataset that can be used to keep unraveling core faith in the Republic. As useful idiots go, Trump has always been prêt-à-porter for any powerbroker who wants to ratfuck America. But the notion that Vance the Berserker, unrecognizable to his old friends, was forged in the crucible of Thiel’s world view makes too much sense to ignore.

Udio Answers Record Labels’ Complaint in Gen AI Lawsuit

As mentioned in my last post about the record labels’ lawsuits against GAI companies Suno and Udio, I will generally focus on the latter case. Both cases are almost identical, but because UMG et al. v. Ucharted Labs Inc. is at the SDNY (in the Second Circuit), those proceedings may be followed by other courts with considerably less copyright law precedent.

Udio’s answer filed on August 1 relies substantially on the premise that there is no cause of action whatsoever. The developer intends to show that “This lawsuit…seeks a genuinely unprecedented result: a ruling that it is actionable copyright infringement, not fair use, to have copied Plaintiffs’ works as part of the process of developing a new technology, even though the ultimate outputs of that new technology are themselves non-infringing.”

The list of counter-factual evidence Udio forecasts is too long to summarize, but the heart of its legal argument at this juncture is that 1) statute explicitly bars protection of musical style; 2) its AI training process entailed learning about music rather than copying protected sound recordings; and 3) because the product’s outputs are largely (or entirely) non-infringing, the purpose of producing “new” music is “what copyright law is designed to encourage, not prohibit.” The defendant also alleges that the recording industry’s claim is invalid on the basis that it has “misused copyright law” as part of a longstanding tradition of stifling competition. So, we have a ballgame that’s going into extra innings, and there will be plenty to say about the details as they emerge.

For now, I take issue with a few premises inherent to Udio’s answer. The first, which I have already stated a few times, is that even if every song output by Udio is “new” as a matter of law, the fact that none of these outputs is a work of “new authorship” as a matter of law militates against Udio’s implication that its product expands the purpose of copyright in general. And as stated, if that is correct, this should militate against a finding of fair use.

Second, despite the fact that Udio can and does point to uses of its product by creators who are plausibly engaged in authorship is, at best, a difficult basis on which to argue that the primary purpose of the product advances authorship. For one thing, the business model appears to be based largely on providing a music toy for consumers, not a tool for creators. Next, even where Udio may be used by professional music creators, the extent to which this fosters new authorship is a case-by-case consideration—one that relies on still-developing doctrine around the use of AI and authorship.

Third, even if Udio could prove allegations of relevant, anti-competitive practices among all the record labels (and I do not mean to suggest they can), the court must remain focused on the interests of individual creators—especially the next generation of music makers. The labels’ argument that the outputs compete with demand for existing sound recordings could be read as protectionism of existing catalogs but should be considered as to whether Udio competes with, or even obviates, the need for new human authorship in music. If so, this is categorically not what copyright law is designed to foster.

As stated in a few posts, and in comments to the Copyright Office, the unique challenge presented by GAI is that rather than pose a threat to the interests of specific authors’ works, it poses a potential threat to authorship itself. In this light, Professor Jane Ginsburg, in a new paper about the state of fair use jurisprudence, discusses two points that stand out for me at the moment. First, she describes the nature of a use-based fair use analysis (as applied in Warhol), which should not “untether” the fair use protection for a use other than the one narrowly ruled on by the court. Second, she notes that the courts may look beyond the “explicit direction” of the fair use statute to consider a factor like broad effect on authors’ careers—or even the potential for other unlawful uses like forgery or fraud.

With regard to use-based analysis, Ginsburg forecasts the uncertainty in adopting a per se fair use rule for machine learning because the consideration of fair use of the inputs may turn on the nature of the outputs. “If an AI system ingests multiple images of apples, including Cézanne’s depictions (let’s assume Cézanne’s works were still under copyright) its training data will enable the system to “know” both what an apple looks like, and what a Cézanne apple looks like. The fair use inquiry may depend on whether the user asks for an apple, or for a Cézanne apple,” Ginsburg writes.

Perhaps more directly applicable to the labels’ case against Udio, Ginsburg states in regard to image-generating AIs and fair use factor four, the effect of the use on market value:

… even under a solely work-based interpretation of section 107(4), one may observe that the wholesale copying of an artist’s works into training data in order to enable stylistically similar outputs jeopardizes not only the artist’s future employment or commissions, but also devalues the actual works copied, because the image-generation program can produce outputs that compete with already-created works as well.

That same rationale would seem to apply to the labels’ evidence that Udio can output sounds which are substantially similar to famous and protected sound recordings. So, while the defendant is correct to say that copyright does not protect style and that music production relies substantially on mixing and matching a finite combination of styles, arrangements, etc., that premise, both statutory and judicial, is derived from a copyright history that has only ever included human artists in “competition” with one another. Consequently, the courts have latitude to find that it is in fact the AI developer who is seeking the novel conclusion that its machine furthers the purpose of copyright law.

As I say, there will be plenty of details to follow and plenty of considerations to nerd out on, if one is so inclined. And for better or worse, I am so inclined. Stay tuned (pun intended).

No FAKES Act Introduced:  A Big Deal for Performing Artists and Everyone Else

No FAKES

Ever since the generative artificial intelligence (GAI) controversy began heating up, I’ve had several conversations with friends and colleagues who are voice actors and have had to disappoint them by repeating the fact that copyright law does not protect a person’s “likeness,” which includes one’s voice. And I’ve had similar conversations with colleagues focused on replication of likeness for the production of nonconsensual pornography. Nevertheless, the instinct makes sense—that the same human-centric principles that protect “authorship” might apply to the human’s likeness as well. Now, that basic sense of justice is articulated in a new bill introduced in the Senate.

Historically, the protection of likeness has been the subject of a relatively narrow area of law called the right of publicity (ROP), a common-law right with statutory provisions in 25 states—and narrow because ROP typically applies to the unauthorized use of celebrity likeness for commercial advertising purposes. But with the introduction of the No FAKES Act, Congress proposes to substantially change the protection of individual likeness in direct response to the capacity of GAI to conjure just about anything from fake news to fake performances by actors and musicians.

Introduced by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC), the acronym stands for Nurture Originals, Foster Art, and Keep Entertainment Safe Act. The heart of the bill establishes a property right in the likeness of any person, living or dead, and prohibits digital replication without permission. Similar to copyright rights, the “digital replication right” is vested in every individual regardless of whether one commercially exploits one’s own likeness, and the right is licensable and transferrable to heirs and assigns after death. Post-mortem rights would last 10 years but may be extended through a renewal and registration process administered by the U.S. Copyright Office if the right holder can show active and authorized public use of the voice or visual likeness.

The bill anticipates legitimate creative and newsworthy uses of unlicensed replication and exempts a broad range of uses for purposes like news, documentary, parody, etc. For a purpose to be “newsworthy,” the replicated individual must be the subject of the material created—e.g., a story about Hugh Jackman, not merely a replication of him “cast” for free in your film or commercial. Further, the bill explicitly states that creating a false impression that a given replication is an “authentic” recording of the individual will still trigger liability under the new law. Thus, the documentarian who uses a replication in a scene that looks like real surveillance or cellphone footage will probably need to identify that material as AI generated to avoid liability.

Remedies for violation of the digital replication right range from damage awards of $5,000 per depiction made by individuals or by online providers; and $25,000 per depiction by corporate entities other than online providers. Plaintiffs may also seek actual damages and attorney fees, and courts may award punitive damages where unlawful replications entail malice, fraud, or willful ignorance that the use violated the law.

Finally, taking a page from the Copyright Act, No FAKES contains a DMCA-like takedown provision for removal of content alleged to be an unlawful replication, and this provision includes maintenance by the Copyright Office of a database of “agents” to whom such complaints must be submitted. Likewise, familiar safe harbor provisions apply to both product developers and platforms that may, without the knowledge of these providers, be used to produce or distribute unlicensed replications.

Given Silicon Valley’s poor record for compliance with the DMCA for copyright owners, the takedown provisions in No FAKES naturally raises questions about everyday removal of material, which is often the first, if not the main, remedy non-performers will care about. Regardless, from my perspective, the bill both recognizes a wide range of abuses of GAI replication and exempts or limits liability for an appropriate range of legitimate, First Amendment protected uses of the technology.

More than a good start, No FAKES appears to draw from many lessons learned over the past 20+ years pitting human and creative rights against the predatory “progress” of Big Tech. I join the Human Artistry Campaign in endorsing this bill and encourage the full Senate to pass it as soon as possible.

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