A legal battle over AI copyright that will shape the economics of the media and entertainment industry for years to come is currently progressing through the court system.
In these infringement cases, pretty much everyone agrees that AI replicates entire collections of copyrighted works without permission when it learns from them. However, some defenders argue that the end result of AI's copying often does not closely resemble the original.
Defenders argue that AI's copying is essentially the same as what human artists have always done: building upon the work of others. They dismiss opposing arguments as a form of sentimental resistance that hinders societal progress.
Unlike humans, AI typically reproduces the complete works of others, which would be considered copyright infringement. Additionally, AI is designed to enable billions of users to create an abundance of content that competes directly with creators, which artists do not typically do.
Big Tech AI training leads to this outcome, even though the resulting content may differ greatly from the original due to the vast quantity involved. However, AI's widespread and broad-scale copying makes it particularly troubling.
There is a group called “Effective Accelerationism” that advocates for unrestrained generative AI, hoping people will overlook the issue of copyright infringement and market substitution, which would be enough to reject fair use and find infringement, according to the Supreme Court. two partsIn the recent
Andy Warhol Foundation v. Goldsmith case, the Supreme Court focused solely on the use and alleged infringement of the photograph, not even addressing the separate issue of infringement on the output side, as it had already been admitted by the parties involved. In rejecting fair use in this case, Justice Sonia Sotomayor emphasized that market substitution is a major concern in copyright law, and the use of an original work to achieve a similar purpose undermines the goal of copyright.
The Court also refuted the idea that transformative use alone qualifies as fair use, stressing that copyright protection is stronger when the material serves an artistic rather than utilitarian purpose and holding that commercial copying for substantially similar purposes is not authorized.
I say 'In response to your reliance on the Getty Images’ lawsuit fair use defense, I say “Take that, Stability AI!”'
Bit Tech and the “Google Books” Case
But what about the famous
Authors Guild v. Google case (commonly referred to as “Google Books”)? That is always the case Big Tech trots out to argue that no consent or compensation is required to the creators on which its AI trains. The court found fair use in that case, and the same rationale applies here with generative AI. First, “Google Books” hailed from the Second Circuit Court of Appeals — not the U.S. Supreme Court — so it isn’t the law of the land. Even if it were, the court in Google Books gave its stamp of approval to Google for fundamentally different reasons, none of which were market substitution. Sure there was wholesale copying there too — Google copied entire libraries of books without consent.
Wrong.
But Google did so to make them searchable and only displayed snippets of copied books in its search results. That, in turn, drove more discovery, sales and consumption of them — not less — which of course meant more dollars for the authors themselves. Google, in other words, promoted authors. It didn’t seek to replace them.
It’s the exact opposite when AI relentlessly scrapes creative works in their entirety. Big Tech developed generative AI systems precisely to create commercial substitutes for wholesale sectors of the media and entertainment industry. Global news analysis and features? Who needs The New York Times when you have Microsoft and OpenAI (litigation ongoing). Stock photos? Who needs Getty Images when you have Stability AI (litigation ongoing). These companies invested massively to create their works. Generative AI companies, however, believe they can simply take them – no payment needed.
Big Tech is on an endless quest to identify valuable creative content, vacuum it up to satisfy AI’s insatiable appetite, and then spit out its own artificially generated products to compete directly against copyright owners. These generative AI companies aim to be the one-stop shop for all kinds of creative works.
Only in a small number of cases does Big Tech seek to negotiate with creators and media companies (mere content repositories in its view), as it just did last week with
the Financial Times . But the fact that it even deigned to do so in these small handful of cases only proves the point. If Big Tech were so confident in its position, why pay anyone at all?Silicon Valley predictably warns of dire consequences for any kind of roadblocks to generative AI’s unbridled arms race in the name of progress. The Supreme Court dealt with similar doom and gloom pronouncements in Warhol-Prince, but blithely rejected them. Justice Sotomayor openly mocked claims that the Court’s decision would “snuff out the light of Western civilization, returning us to the Dark Ages ….” In her words, “It will not impoverish our world to require [the infringer] to pay [the creator] a fraction of the proceeds from its reuse of [the] copyrighted work.”
Exactly! That’s all we’re talking about here. The creative community is not trying to stop Big Tech’s development of generative AI. To the contrary, it expressly acknowledges AI’s power and potential. The Human Artistry Campaign, a coalition of major media and entertainment organizations, sets forth seven “
core principlesfor artificial applications” in its mission. Principle number one says: “Technology has long empowered human expression, and AI will be the same.” The creative community simply expects Big Tech to pay for the basic elements it needs for its AI technology to create its value. According to Justice Sotomayor, new expression “does not eliminate the need for licensing.”
So, don’t justify Big Tech’s relentless pursuit of its next trillion-dollar valuations by claiming that it’s no different from what artists have always done.
It’s completely different.
Contact Peter at [email protected]. If you want to learn more, sign up for his
“the brAIn” newsletter , visit his companyCreative Media at creativemedia.biz , and follow him on Threads @pcsathy.Artists have always drawn inspiration from others, but that’s a false comparison. GenAI’s complete “taking” is entirely different.
