Clickbait arguments in AI Lawsuits (will number 3 shock you?)
The booming AI industry has sparked heated debates over what AI developers are legally allowed to do. So far, we have learned from the US Copyright Office and courts that AI created works are not protectable, unless it is combined with human authorship.
As we monitor two dozen ongoing lawsuits and regulatory efforts that address various aspects of AI's legality, we see legitimate legal questions that must be resolved. However, we also see some prominent yet flawed arguments that have been used to enflame discussions, particularly by publisher-plaintiffs and their supporters. For now, let’s focus on some clickbait arguments that sound appealing but are fundamentally baseless.
Will AI doom human authorship?
Based on current research, AI tools can actually help authors improve creativity, productivity, as well as the longevity of their career.
When AI tools such as ChatGPT first appeared online, many leading authors and creators publicly endorsed it as a useful tool like any other tech innovation that came before it. At the same time, many others claimed that authors and creators of lesser caliber will be disproportionately disadvantaged by the advent of AI.
This intuition-driven hypothesis, that AI will be the bane of average authors, has so far proved to be misguided.
We now know that AI tools can greatly help authors during the ideation stage, especially for less creative authors. According to a study published last month, AI tools had minimal impact on the output of highly creative authors, but were able to enhance the works of less imaginative authors.
AI can also serve as a readily-accessible editor for authors. Research shows that AI enhances the quality of routine communications. Without AI-powered tools, a less-skilled person will often struggle with the cognitive burden of managing data, which limits both the quality and quantity of their potential output. AI helps level the playing field by handling data-intensive tasks, allowing writers to focus more on making creative and other crucial decisions about their works.
It is true that entirely AI-generated works of abysmal quality are available for purchase on some platforms. Some of these works are using human authors’ names without authorization. These AI-generated works may infringe on authors’ right of publicity, but they do not present commercially-viable alternatives to books authored by humans. Readers prefer higher-quality works produced with human supervision and interference (provided that digital platforms do not act recklessly towards their human authors despite generating huge profits from human authors).
Are lawsuits against AI companies brought with authors’ best interest in mind?
In the ongoing debate over AI, publishers and copyright aggregators have suggested that they have brought these lawsuits to defend the interests of human authors. Consider the New York Times for example, in its complaint against OpenAI, NY Times describes their operations as “a creative and deeply human endeavor (¶31)” that necessitates “investment of human capital (¶196).” NY Times argues that OpenAI has built innovation on the stolen hard work and creative output from journalists, editors, photographers, data analysts, and others—an argument contrary to what the NY Times once argued in court in New York Times v. Tasini, that authors’ rights must take a backseat to NY Times’ financial interests in new digital uses.
It is also hard to believe that many of the publishers and aggregators are on the side of authors when we look at how they have approached licensing deals for AI training. These licensing deals can be extremely profitable for the publishers. For example, Taylor and Francis sold AI training data to OpenAI for 10 million USD. John Wiley and Sons earned $23 million from a similar deal with a non-disclosed tech company. Though we don’t have the details of these agreements, it seems easy to surmise that in return for the money received, the publishers will not harass the AI companies with future lawsuits. (See our previous blog post about these licensing deals and what you can do as an author.) It is ironic how an allegedly unethical and harmful practice quickly becomes acceptable once the publishers are profiting from it.
How much of the millions of dollars changing hands will go to individual authors? Limited data exist. We know that Cambridge University Press, a good-faith outlier, is offering authors 20% royalties if their work is licensed for AI training. Most publishers and aggregators are entirely opaque about how authors are to be compensated in these deals. Take the Copyright Clearance Center (CCC) for example, it offers zero information about how individual authors are consulted or compensated when their works are sold for AI training under CCC AI training license.
This is by no means a new problem for authors. We know that traditionally-published book authors receive around 10% of royalties from their publishers: a little under $2 per copy for most books. On an ebook, authors receive a similar amount for each “copy” sold. This little amount handed to authors only starts to look generous when compared to academic publishing, where authors increasingly pay publishers to have their articles published in journals. The journal authors receive zero royalties, despite the publishers’ growing profit.
Even before the advent of AI technology, most authors were struggling to make a living on writing alone. According to an Authors Guild’s survey in 2018, the median income for full-time writers was $20,300, and for part-time writers, a mere $6,080. Fair wage and equitable profit sharing is an issue that needs to be settled between authors and publishers, even if publishers try to scapegoat AI companies.
It’s worth acknowledging that it’s not just publishers and copyright industry organizations filing these lawsuits. Many of these ongoing lawsuits have been filed as class actions, with the plaintiffs claiming to represent a broad class of people who are similarly situated and (thus they alleged) hold similar views. Most notably, in Authors Guild v. OpenAI, Authors Guild and its named individual plaintiffs claim to represent all fiction writers in the US who have sold more than 5000 copies of a work. There’s also another case where plaintiff claims to represent all copyright holders of non-fiction works, including authors of academic journal articles, which got support from Authors Guild, and several others in which an individual plaintiff asserts the right to represent virtually all copyright holders of any type.
As we (along with many others) have repeatedly pointed out, many authors disagree with the publishers and aggregators’ restrictive view on fair use in these cases, and don’t want or need a self-appointed guardian to “protect” their interests. We have seen the same over-broad class designation in the Authors Guild v. Google case, which caused many authors to object, including many of our own 200 founding members.
Respect for copyright and human authors’ hard work means no more AI training under US copyright law?
While we wait for courts to figure out the key questions on infringement and fair use, let’s take a moment to remember what copyright law does not regulate.
Copyright law in the US exists to further the Constitutional goal to “promote the Progress of Science and useful Arts.” In 1991, the Supreme Court held in Feist v. Rural Telephone Service that copyright cannot be granted solely based on how much time or energy authors have expended. “Compensation for hard work“ may be a valid ethical discussion, but it is not a relevant topic in the context of copyright law.
Publishers and aggregators preach that people must “respect copyright,” as if copyright is synonymous with the exclusive rights of the copyright holder. This is inaccurate and misleading. In order to safeguard the freedom of expression, copyright is designed to embody not only the rightsholders’ exclusive rights but also many exceptions and limitations to the rightsholders’ exclusive rights. Similarly, there’s no sound legal basis to claim that authors must have absolute control over their own work and its message. Knowledge and culture thrives because authors are permitted to build upon and reinterpret the works of others.
Does this mean I should side with the AI companies in this debate?
Many of the largest AI companies exhibit troubling traits that they have in common with many publishers, copyright aggregators, digital platforms (e.g., Twitter, TikTok, Youtube, Amazon, Netflix, etc.), and many other companies with dominant market power. There’s no transparency or oversight afforded to the authors or the public. The authors and the public have little say in how the AI models are trained, just like how we have no influence over how content is moderated on digital platforms, how much royalties authors receive from the publishers, or how much publishers and copyright aggregators can charge users. None of these crucial systematic flaws will be fixed by granting publishers a share of AI companies’ revenue.
Copyright also is not the entire story. As we’ve seen recently, there are some significant open questions about the right of publicity and somewhat related concerns about the ability of AI to churn out digital fakes for all sorts of purposes, some of which are innocent, but others are fraudulent, misleading, or exploitative. The US Copyright Office released a report on digital replicas on July 31 addressing the question of digital publicity rights, and on the same day the NO FAKES Act was officially introduced. Will the rights of authors and the public be adequately considered in that debate? Let’s remain vigilant as we wait to see the first-ever AI-generated public figure in a leading role to hit theaters in September 2024.