Tag: Featured

Things We Don’t Need: Generative AI

When I was planning to start The Illusion of More, I contemplated a category of posts under the heading We Don’t Need This. Although abandoned, I thought it might be an editorial framework for articles about innovations that really aren’t innovative, and the low-tech invention that originally inspired the idea was the kiddie-car/shopping-cart hybrid. In case you haven’t had the pleasure, this vehicle enables a small child to “drive” a plastic car attached to the basket one pushes through the supermarket. As the parent of a small child (at the time IOM was launched), I found this innovation was a terrible idea—one that demanded use the moment the child laid eyes upon it, but which mostly offered poor maneuverability through the aisles and unnecessary geometric struggle at check-out.

There is, of course, nothing connecting the kiddie-car/shopping-cart to generative AI except, in my view, the fact that we don’t need either one. Or at least, we don’t need most of what generative AI appears to be doing, and this is perhaps the most maddening aspect of the most prominent generative AI tools making the headlines—that they serve no purpose and, if we’re getting all IP about it, promote no progress. I’ve said it, and I’ll keep saying it:  we do not need computers to make artistic works.

This month, the Federal Trade Commission (FTC) issued a report describing its early findings about AI’s potential harms which may be addressable under the agency’s purview. Charged with enforcing prohibitions against unfair, non-competitive business practices and protecting consumers, the FTC hosted a roundtable discussion with members of the creative community to hear their concerns about both the development and public deployment of generative AIs. As the report states:

Various competition and consumer protection concerns may arise when AI is deployed in the creative professions. Conduct–such as training an AI tool on protected expression without the creator’s consent or selling output generated from such an AI tool, including by mimicking the creator’s writing style, vocal or instrumental performance, or likeness—may constitute an unfair method of competition or an unfair or deceptive practice.

In response to the report—specifically to the passage quoted above—three well-known copyright critics, Pamela Samuelson, Matthew Sag, and Christopher Sprigman (SS&S) criticized the FTC “both for its opacity and for the ways in which it may be interpreted (or misinterpreted) to chill innovation and restrict competition in the markets for AI technologies.” Before responding to that allegation, I must indulge in a little gallows humor and mention that the economic and global-security leader of the free world is in danger of shredding its Constitution, going full-tilt authoritarian, and spiraling into a deathroll of ignorance and cruelty. And yet, we’re going to talk about “chilling innovation” in generative AI as if it’s a matter of urgency. The world is in crisis, and billions have been invested to see who can do the best job getting a computer to write a poem or make a picture? Talk about whimpers instead of bangs.

There are two reasons that sentiment is not raw Ludditism. The first is that it does not dismiss all AI development in the creative industry as useless; and the second is that the “copyright stifles innovation” bullet point is a generalization that should never be uttered again—especially in light of its direct role in fostering the above-mentioned prospect of democracy’s collapse. We’ve heard all this before—specifically from SS&S and their colleagues in academia and the “digital rights” organizations. We’ve been told that copyright stifles the free and open internet, access to information, and the speech right.

But in addition to the fact that the premise itself was false, the grand social media experiment in the “democratization of everything” must be recognized as an abysmal failure, and its cheerleaders should muster the humility to stifle their tiresome and dangerous refrains in context to AI. Social media companies and their friends in academia—and here, I must include President Obama’s Google-friendly administration—share considerable blame for the heedless, tech-enabled populism that has fostered so many social hazards, including a literal seditionist now leading one of America’s two political parties.

Notably, the FTC report does not mention copyright very much, and in fact, many of the creative professionals who participated in the discussions acknowledged that because they are not copyright owners (e.g., voice actors and screenwriters for hire were among the representatives), they do not have rights currently protecting them against generative AI resulting in the kind of unfair outcomes, which the FTC is charged with mitigating. It would take too long a post to respond to all the critiques presented by SS&S, but I wanted to focus on this statement:

We are concerned especially about the suggestion in the FTC’s Comments that AI training might be a Section 5 violation where it “diminishes the value of [a creator’s] existing or future works.” A hallmark of competition is that it diminishes the returns that producers are likely to garner relative to a less competitive marketplace. This is just as likely to be true in markets for creative goods, such as novels and paintings, as it is in markets for ordinary tangible goods like automobiles and groceries. AI agents that produce outputs that are not substantially similar to any work on which the AI agent was trained, and are thus not infringing on any particular copyright owner’s rights, are lawful competition for the works on which they are trained.  Surely the FTC does not plan to have Section 5 displace the judgments of copyright law on what is and what is not lawful competition?

To summarize, that paragraph declares that it does not matter if generative AI displaces human authors, that in fact, it is a threshold we should be eager to cross. Notwithstanding the fact that two of the high-profile lawsuits present compelling evidence of substantially similar outputs,[1] the more concerning implication of that paragraph is that SS&S endorse the inevitability that generative AI will devalue human creators and/or eliminate them altogether. Moreover, calling this eventuality a form of “competition” reveals an unsettling perspective consistent with every anti-copyright paper I have ever read—namely, that the production of creative works is no different than the production of any other product or service.

I’ve said many times that copyright critics don’t understand artists, and here, the inapt word competition demonstrates why this axiom endures. For instance, publishers are in competition with one another to an extent, but authors are not—at least not in the sense that the concept applies in other industries—least of all Big Tech. No novelist, for instance, wants to hold the undivided and exclusive attention of all readers the way Meta wants eyeballs never to stray for long from its platforms. Artists thrive in a diverse market of other artists, consumers benefit as a result, and copyright is an engine of that diversity, not a barrier to it. Artists may feel competitive or jealous at times, or even behave in a competitive manner (because they’re human), but the reality is that they need one another to exist at a scale that is not comparable to other “businesses.” True to form, copyright critics like to cite the interdependence of authors to highlight copyright’s limitations but then ignore the same principle in support of tech giants swallowing all creative enterprise whole.

The primary concern expressed by SS&S appears to be that the FTC alleges that AI training with copyrighted works is an act of infringement. Unsurprisingly, this same trio submitted comments to the Copyright Office arguing that AI training with protected works is fair use, but as that very question is already presented in several court cases, I assume SS&S are primarily concerned with optics here. The trio states, “The FTC has no authority to determine what is and what is not copyright infringement, or what is or is not fair use. Under governing law, that is a judicial function.”

Exactly. And the question is now before the courts. So, what’s the problem? That the FTC should not even raise the issue? According to tweets by Samuelson and Sprigman, they argue that the FTC’s report is one-sided, that it is too creator-focused and does not account for the testimony or opinions of the technology companies developing AI. But while I certainly agree that multistakeholder hearings etc. are the proper approach to developing new policy, it is impossible to tolerate a complaint about lack of balance coming from the anti-copyright crowd at all, and from these individuals in particular. For instance, readers may not remember the American Law Institute Restatement of Copyright, initiated by Samuelson and led by Sprigman, but critics of the project—some of the most prominent names in copyright scholarship—specifically cite the opacity of the restatement process and deafness of its managers to the concerns and recommendations of their colleagues.

More broadly, it must be said that if, indeed, the FTC lately gave more attention to the creators than they did to the tech companies, then this was a long overdue anomaly. Between at least the mid-late 1990s and 2016, the tech companies were treated with kid gloves, handed the keys to Washington, and feted like the economic and democratic engines they claimed to be. Since 2016, sentiment began to swing in the other direction, as many Americans began to see how disinformation plus data manipulation can become a wrecking ball for a whole society.

If Big Tech lost the previously undeserved benefit of the doubt, good. AI has the potential to exacerbate many of the same Web 2.0 harms at unprecedented speed and scale, and if the FTC, the USCO, the courts, or Congress look askance at the developers, then it is a mistrust well earned. And again, at least with regard to generative AI designed to make creative works, none of the parties empowered to write policy in this area should forget the bottom line:  that when it comes to producing creative work, we truly do not need generative AI.

[1] Concord et al. v. Anthropic and NYT v. Open AI, et al

SEE ALSO: The Washington Post reported this month that Big Tech continues to significantly fund and influence academia in these policy areas.

Photo by: Jollier

The Age of the Mouse is Nigh!

And the fairy that is called Tinkerbell said, come and see. And I saw, and behold, a Mouse with large black ears. And the name that said on him was Mirth. And Joy followed with him.

And to those who may feel anxious about the coming year, I say unto thee, fear not. Whatever your concerns for the fate of the world—however well-founded—take comfort. For a new era begins at Midnight on the first day of the year 2024. Of course, I speak not of the Lamb of Revelations, but of the Mouse of Disney, and the day when the Copyright seal will be broken, and Mickey, in the form of Steamboat Willie, will rise (not fall) into the Public Domain. Rejoice! Let the Angels sound their trumpets! For the Age of the Mouse is upon us. And Mankind shall be saved.

But perhaps you think I exaggerate. Verily, you say, the passing of a cartoon character out of Copyright cannot bring about an era of new enlightenment and goodwill. Indeed, I was tempted to believe as you do. But like most Men of ordinary sense, I was not blessed with the vision of the Prophets—those sages, who read from the Book of Lessig, and proclaim that since the year 1998, Man has robbed himself of his own Culture, keeping the most sacred expressions in a Babylonian bondage called the Copyright Term Extension Act. Yea, though the Prophets bore false witness and beguiled the People, saying that the Act of Sonny Bono and the other Philistines was made unto law for the wicked purpose of keeping the Mouse in bondage, let us not quibble over the petty facts of History.

For on this New Year’s Day, the Mouse shall be set free, and the People will speak His name, and he shall say unto the first of his Disciples, Come on, Pluto! And Pluto will go on. He will follow the Mouse. And more Disciples will come and see. And the People will see and hear. And again, the Mouse will say, Come on! And the People will go on. For the Mouse shall then belong to all the People. Or at least, in a limited sense, this will be so.

And the days of the New Year, and all the years that follow, shall be known as the era of Mickey Remix. And the Remix will sweep across the Earth as like a gentle breeze, and Man shall come to know his own folly, and he shall be as though reborn. He will lay down the arms of war and abandon the politics of hate. And reason, compassion, and knowledge will, at last, be the hallmarks of civilization. Verily, these things must come to pass. For if the events foretold do not transpire with the ascension of the Mouse to the Public Domain, then the Prophets are indeed false and deserving of scorn.

If the Mouse merely passes into the realm beyond the copyright term, and Man remains in the same state of ignorance and peril as on this day, then it shall be known that the Prophets are deceivers. If on the second day of the New Year, and all the days that follow, Man is much the same as before, then the Prophets have dissembled and have wasted more than twenty-five times three hundred sixty-five days peddling mere trivia as wisdom. We shall know soon. For the day of reckoning is nigh. The grace of the Mouse be with you all.

Is Site Blocking Finally Within Sight?

With all the talk about AI, one might think the problem of old-school media piracy has abated, but this week, the House Judiciary Committee held a hearing entitled Digital Copyright Piracy:  Protecting American Consumers, Workers, and Creators. Although much of the conversation was familiar territory (i.e., the economic value of the creative industries and the cost of piracy), the legislative question in the room was whether the United States will finally adopt site blocking provisions as many other nations have done. In her testimony, Motion Picture Association (MPA) general counsel Karyn Temple stated:

…over the past decade, more than 40 countries, including leading democracies such as the U.K., much of Western Europe, Canada, Australia, India, Brazil, South Korea, and Israel, have enacted no-fault injunctive relief regimes that expressly authorize courts or administrative agencies to issue orders directing internet service providers (“ISPs”) and other online intermediaries to disable access to websites dedicated to piracy. Pursuant to these laws, courts and administrative agencies have disabled access to more than 90,000 domains used by over 27,000 websites engaged in blatant piracy after affording full due process.

“No-fault injunctive relief” and “full due process” is key language to keep in mind as Congress re-opens this discussion and the self-appointed defenders of the internet respond like Sauron’s orcs to the battle cry. After all, things got a bit heated “twelve years ago,” as noted by Rep. Zoe Lofgren in reference to the SOPA/PIPA legislation that was doomed by an extraordinary disinformation and fear-mongering campaign coordinated and funded by the internet industry. And although that story ought to be old news, the testimony of Matt Schruers, president of the Computer and Communications Industry Association (CCIA), rang the “Stop-SOPA” bell with statements like the following:

Content filtering by automation is not always effective or accurate. In particular, “off-the-shelf” filtering technologies tend to be focused only on specific classes of works, and cannot necessarily provide meaningful protection to content on sites whose users can create many different types of works. Automated tools are also unable to take into account context or nuance of individual uses, so may result in over-removal of non-infringing, fair uses. These false positives merit particular attention because any unjustified content filtering or takedown may suppress lawful expression.

That commentary is dog-whistling because it has nothing to do with the purpose of, or mechanisms inherent to, site blocking. Schruers is referring to imperfections in the DMCA notice-and-takedown provisions, exaggerating its effects on protected speech, and eliding the fact that a distinguishing aspect of a site blocking provision is that it requires a party to present evidence to obtain a court order and provides ample opportunity for both service providers and the allegedly infringing website to rebut the evidence. No party would be empowered to “automate” site blocking the way that, for instance, copyright owners can automate DMCA takedown notices.

Homing in on Schruers’s rhetoric, the highlight of the hearing was arguably Rep. Ted Liu, who used his phone to access the pirate site F Movies, which he confirmed with Ms. Temple cannot be accessed in most of Europe. Emphasizing the fact that the F Movies site has been available to Americans since 2016, Liu stated, “We’re trying to be reasonable here. This is such an unreasonable case. This is so clearly online piracy, copyright infringement, and you don’t want your organization, your members, defending something so blatantly unlawful and unreasonable. I just ask your members to block that site today.”

In response, Schruers first noted that the broadband providers were not testifying, but Liu pressed on, “You cannot defend this. This is not defensible.” Schruers stated that his members are also content creators, that piracy is a shared concern with other content creators, and then reiterated the argument that the best remedy to piracy is more widespread, legal, availability of more content.

This rhetoric, dating back to NAPSTER (1999), has not aged well in a time when, if anything, consumers often feel that there are too many channels requiring too many subscriptions. But that is a business narrative still evolving in the streaming market, and not one that justifies access to pirate sites. More to the point, the “more access” argument completely ignores the myriad reasons to finally adopt site blocking, even if the harm to content creators were minimal. 

For instance, Rep. Lofgren resurfaced the prospect of prohibiting payment processors (i.e., credit card companies) from doing business with the pirate sites, but as film producer Richard Gladstein noted, the pirate’s revenue is not derived solely, if at all, from traditional credit card transactions. Although Mr. Gladstein did not go into much detail, he did mention the use of cryptocurrency in illegal trade of this nature, and Rep. Lofgren failed to note that voluntary initiatives between copyright owners and payment processor companies to prevent known infringing sites from accessing payment networks have existed for years and only do so much to stifle piracy.

Moreover, as reported on this blog in several posts, Digital Citizens Alliance has provided extensive reports on the complex, malware-based, dark web market for which pirated media is merely used as bait. Thus, even if not a single professional in media production were financially harmed by piracy, the use of media piracy as a conduit to more dangerous forms of cybercrime is reason alone for Congress to finally block these sites from access to the U.S. market.

Of course, piracy is a threat to not only creators, but everyone involved in bringing entertainment, including live broadcasts of sporting events, to fans. As described Riché McKnight, general counsel for the Ultimate Fighting Championship, “UFC estimates that within hours of a single UFC event, hundreds of thousands of viewers may have already seen infringing versions of the event…UFC further estimates that due to piracy, multiple millions of dollars are diverted from legitimate purchases of UFC content each year,” McKnight states in his written testimony.

McNight’s testimony also highlights a major problem with the DMCA — that while it calls for service providers to take down infringing content “expeditiously,” there is no clear definition of that term. This is extremely problematic for industries broadcasting live sporting events, where the value of the broadcast may last minutes or seconds and then diminish greatly once the event concludes.

What About Felony Streaming?

In 2020, against the objections of the usual anti-copyright parties, the Protect Lawful Streaming Act was passed, which made enterprise-scale piracy by means of streaming a felony rather than a misdemeanor. The question as to how effectively the Justice Department has used this provision was raised in the hearing, perhaps as a distraction from site blocking, but there are at least two answers to why PLSA is not a complete remedy for piracy. One is of course the resources of the DOJ, and the other is that site blocking provisions exist to prevent access to the domestic market by sites operating outside U.S. jurisdiction.

As Chairman Darrell Issa noted at the end of the hearing U.S. Customs and the International Trade Commission are empowered to stop the importation of physical goods that violate intellectual property law. As such, he asks, “Today, aren’t we just talking about finding the equivalent of what for two-hundred plus years, our Customs and other agencies have done when there is due process and entities such as Article III courts have reached a decision, the execution of that protection is done by our government, or on behalf of our government, by orders to those who participate in brining things into the United States?”

Perhaps not the most concisely worded question, but it is exactly right. The U.S. bars illegal goods from overseas from entering the country, and there is no threat to constitutional principles for doing likewise when the means of “importation” is digital transmission. Moreover, as stated here many times, an infringing digital transmission of a work can cause immensely more damage than even thousands of physical bootlegs. Assuming the HJC proceeds toward site blocking legislation, I imagine we’ll hear some SOPA-like noise begin to rumble online. But based on my read of that hearing and the market overall, I wouldn’t expect that noise to make much difference this time.