A Few More Thoughts on Copyright

Last week’s exploration of copyright law led to some thoughts from the community. I had interesting email conversations with many of you. Copyright law is a very nuanced topic that leads to many opinions and, rightly so, challenges.

It turns out that I wasn’t the only one exploring copyright topics this past week, as there were multiple news stories exploring the topic that we’ll explore. But first, I need to set the record straight.

One thing I might not have been clear enough in the first piece is that I 100% think the idea of rights protection is important. Creators should have reasonable protections that the things they create will not be stolen or profited on without their consent. However, what I didn’t dig into enough last week but came up in many of my email conversations is the power imbalance in the system.

Copyright protections only work in so far as someone is able to enforce those rights. This is a benefit that creators receive when working with a distributor or publisher. The bigger company will offer enforcement tools or support if someone infringes on the creator’s copyright.

I live in Central Florida, which is affectionately known as The House of the Mouse. Disney is the single largest employer in the state and one of the most powerful legal arms in the country. It is widely known that if you attempt to infringe on Disney’s intellectual property, they will come after you. Sometimes it may seem excessive, but they are legally protecting their property and enforcing their copyright. They have the power and resources to fight those battles.

But my question from last week remains: What happens when there are bigger fish that don’t respect copyright laws at all?

Shortly after I published last week’s piece, OpenAI wrote a blog post that had one intended reader: The US President. In it, they laid out an argument (sic: pandered) for the “freedom of intelligence” and multiple legal recommendations that would essentially protect US-based artificial intelligence companies while collectively banning foreign competition.

One of the recommendations relevant to our discussion is this one:

A copyright strategy that promotes the freedom to learn: America’s robust, balanced intellectual property system has long been key to our global leadership on innovation. We propose a copyright strategy that would extend the system’s role into the Intelligence Age by protecting the rights and interests of content creators while also protecting America’s AI leadership and national security. The federal government can both secure Americans’ freedom to learn from AI, and avoid forfeiting our AI lead to the [People’s Republic of China] by preserving American AI models’ ability to learn from copyrighted material.

OpenAI wants fair use, the idea that copyrighted material can be used for educational purposes, to extend to the training of LLM and AI models. Essentially, OpenAI is making it very clear that they do not respect or care for copyright laws and want the US Government to give them carte blanch protection. And they’re using “freedom” and national security as an excuse.

So, again, I ask: What is the point of copyright laws if you cannot actively enforce them?

This simply leads us further down the rabbit hole of a two-tiered internet. You have an internet of paywalls where people try to actively prevent their creations from being copied by AI, while inadvertently making it inaccessible to entire swaths of people. Or, you have an internet where everything is free but also likely stolen and replaced by generative AI. Is this really the internet that we want?

Last Friday, Molly White proposed a third possible option, one where AI companies offer attribution and financial support for infrastructure and access:

The future of free and open access isn't about saying “wait, not like that” — it’s about saying "yes, like that, but under fair terms”. With fair compensation for infrastructure costs. With attribution and avenues by which new people can discover and give back to the underlying commons. With deep respect for the communities that make the commons — and the tools that build off them — possible. Only then can we truly build that world where every single human being can freely share in the sum of all knowledge.

I like this notion and think it is likely the best possible option. But it requires two things I’m skeptical will happen: Tech companies agree and governments hold tech companies accountable. I would love to see it, and based on previous laws, it might be possible in Europe. But, with the “freedom of intelligence” on the line, I don’t think the current US Government will agree.

One more very interesting news story came out last week. Tony Gilroy, creator of the fantastic Star Wars: Andor show, explained why he never released the first season’s scripts to the public as originally intended:

I wanted to do it. We put it together. It's really cool. I've seen it, I loved it. AI is the reason we're not. In the end, it would be 1,500 pages that came directly off this desk. I mean, terribly sadly, it's just too much of an X-ray and too easily absorbed. Why help the f***ing robots any more than you can? So, it was an ego thing. It was vanity that makes you want to do it, and the downside is real. So, vanity loses.

Well-written scripts are a blast to read. The way the writers set the scene and provide just enough information to play in the minds of the reader and to give the director and photographer inspiration is truly interesting writing. It would have been amazing to read the Andor scripts. But, alas, AI.

So, once again I ask, what is the point of copyright when you know you are powerless to enforce it? Because if Tony Gilroy, backed by the power of Disney’s legal team, wasn’t confident his work would be protected, what chance do any of us have?