Rewriting Copyright Law for Generative AI Would Hurt Everyone

In courts across the country, publishers and creators are suing large AI companies for training generative AI models on copyrighted works. While this may appear as a battle between authors and Big Tech, the Electronic Frontier Foundation (EFF) warns the implications extend far beyond these parties, affecting billions of people who rely on fair use for research, creativity, and everyday internet activities.

The EFF has stepped in to defend the public's rights in these cases, filing an amicus brief in In re OpenAI. The organization explains how a court ruling narrowing fair use could impact people worldwide, potentially impeding beneficial work like medical research and investigative journalism, while limiting access to privacy protection tools.

Shrinking Fair Use Harms All

Copyright exists to stimulate creativity for the public good, but plaintiffs in these lawsuits are arguing to limit everyone's fair use rights, undermining copyright's purpose. Initial fears that AI models would produce highly similar works have proven unfounded, and courts have already recognized fair use in cases where copyrighted works were used to train generative AI.

Plaintiffs claim that even if AI use is transformative, training on their works is unfair because AI models could generate competing works. They also argue that data scraping without permission was independently infringing. These arguments would put beneficial research and reporting at risk, as journalists and researchers use identical techniques to investigate tech companies and study misinformation.

Requiring proof that copyrighted material was lawfully obtained would threaten everyday internet activities. As the EFF's brief explains, this would cast legal doubt on the billions of copies we collectively make every day through routine online activities like opening emails, clicking on embedded links, visiting websites, sharing pictures, streaming music, and watching videos. Fair use allows us to use the internet without tracking the source of every image, video, and article.

Mandatory Licensing Benefits Giants

Some argue AI developers should obtain licenses for every work used, but the EFF warns this would give massive advantages to large companies over small competitors and academic researchers. Professor Lawrence Lessig noted: "If all training requires a license, then none but a handful of tech giants will be able to afford the costs of training. That's not because authors are greedy but because the copyright system is the least efficient property system known to man."

Creators are unlikely to benefit from these licensing arrangements. Media giants have exploited imbalances with underpaid artists for decades. As Cory Doctorow has written, trying to help creators by giving them more rights under copyright is "like trying to help a bullied kid by giving them more lunch money for the bully to take." Companies controlling copyrights won't necessarily treat artists more fairly once they control AI training data.

AI Rules Must Serve Public

AI technologies will affect all of us, and copyright law is ill-equipped to address these consequences. The EFF argues that rules governing AI should serve the public, not just the companies that can afford lengthy copyright litigation or billion-dollar settlements. General-purpose AI models have already generated new insights for medicine, science, journalism, art, and accessibility, such as tools providing visual descriptions for people with vision impairments.

The future of AI development is too important to leave solely to Big Content or Big Tech. The outcome of these cases will determine whether innovation continues to benefit society broadly or becomes concentrated in the hands of a few powerful corporations.