As reported by Insider last week, the Andreessen Horowitz VC firm a16z, complains that potential copyright liability for AI developers could harm the interest of their investors. “Imposing the cost of actual or potential copyright liability on the creators of AI models will either kill or significantly hamper their development,” they state, as quoted by Kali Hays. Sympathy for the billionaires was not forthcoming, as my friend Neil Turkewitz can attest based on the responses to his tweet on the topic…
More about the VCs’ comments below, but against this backdrop of millions of creators laughing at the raw hubris of Andreessen et al., it is worth watching how, or whether, the AI developers address the matter of indemnifying customers against potential liability for copyright infringement claims arising from use of their systems. Writing for TechCrunch, Kyle Wiggers observes that as these companies respond to investor pressure to attract enterprise customers, copyright infringement indemnity may become common. For now, the landscape reads like a patchwork of promises with a sub-patchwork of disclaimers and conditions.
Adobe, IBM, and Microsoft have made the strongest assurances that they will commit resources to defend customers against copyright infringement claims; other prominent AI models like Stability AI, Midjourney have not yet adopted any such provisions; and Wiggers states that “Google offers some defense for customers against third-party allegations of IP infringement arising from its text- and image-generating models.” In practice, of course, the only real test to determine whether these clauses are meaningful (rather than just PR) is for a rightsholder to file a suit and see what happens. And that gets to the question of which parties are being protected, and why.
In 2015, Google announced it would pay legal fees for YouTubers whose videos were wrongly removed from the platform via the DMCA notice-and-takedown provision. In fact, Google did not mean all YouTubers but a few selected video creators, and I do not believe Google ever had to put its money where its mouth was (not that anything they pledged counted as “money” in their world).* Although indemnity clauses in Terms of Service are a different animal, there is a familiar ring this time in the AI developers’ limitations and restrictions—for instance to only indemnify enterprise customers.
The trend strikes me as maddening. First the AI developer “trains” its model by feeding it millions of creative works, all used without permission from the rightsholders. Next, the AI developer hopes to sell its system to enterprise users—businesses that will, in theory, no longer need to hire the same professional creators whose works were rustled to develop the AI. And finally, the AI developer will protect said business user against potential infringement claims by that same class of professional creators (at least until there are no more creators left). Maybe this isn’t quite how things will go, but in principle, it looks a lot like looting a neighborhood and then erecting legal barriers to prevent the residents from remedying the theft.
And that brings me back to Andreessen Horowitz, and the gall it takes to so frankly dismiss the rights of all creators as an inconvenient barrier to VC wealth. In its comments to the Copyright Office, a16z recited Psalm 1 from the Book of Tech-Bro, demanding our blind faith that what’s good for the tech sector is always good for the country. “[Investor] expectations have been a critical factor in the enormous investment of private capital into US-based AI companies. Undermining those expectations will jeopardize future investment, along with U.S. economic competitiveness and national security.”
After recovering from the spit take at manifesto-writing capitalists seeking federal protection for their private equity investments, the only sensible reply to the overstated reference to national security is BULLSHIT. If the future of U.S. national security depends on developing a for-profit generative AI to make music or paint pictures, we’re screwed. Fortunately, this is not the case. Defense Department AI strategy (good, bad, or otherwise) will proceed independent of AI’s role in creative works of expression. Accordingly, it is both revealing and ridiculous that Andreesen Horowitz would even mention national security in comments to the Copyright Office.
Notably, the quote above appears under a subhead asserting that using protected materials for machine learning is fair use. The paragraphs that follow cite no authority to support a fair use argument and, in fact, undermine that defense by coming very close to asserting that there is no basis for a claim of infringement. If non-infringement is the argument, then fair use should not be raised, and a16z’s failure to articulate a strong position in either direction leads one to reasonably conclude that their only argument is financial self-interest. Last I checked, the free market doesn’t guarantee success, and if your business model is based on a potentially liability, that’s a problem with the model—i.e., a you problem.
With so many billions invested in generative AI, Big Tech’s longstanding clash with copyright law has finally pivoted from a lie about building new opportunities for individual creators to the unblushing truth that it views creators as obsolete relics dragging against their deterministic vision of the future. “Today, companies are aiming to remove artists and writers from the loop entirely — it turns out, even free labor was too expensive,” writes Eryk Salvaggio in a must-read essay. And if that’s how AI investors feel about human beings in the creative arts, we should question their investments in everything.
*UPDATE: Per comment by Neil Turkewitz, Google filed one suit in 2019 against one alleged abuser of the DMCA.
