Stop Rushing To Copyright As A Tool To ‘Solve’ The Problems Of AI

A few months back, I got added to a group chat of Hollywood writers/actors/directors, all seeking to understand what the fuck was going on with AI. And one topic that came up consistently early on was “will copyright protect us” and, if not, “how can copyright be changed to better protect us?” I’ve already made it clear that I’m skeptical of the various copyright lawsuits against AI companies, claiming that the training of their LLMs violated copyright law. While there are some arguments against it, it seems to me that training is the equivalent of learning from, and we’d never say that reading a book and learning from it violates copyright law. Similarly, various lawsuits about search engines and book scanning suggest a (correct) recognition that scanning copyright covered works to create new (even commercial) products is fair use.

However, I’m somewhat perplexed at the focus on copyright law as the tool that many people want to use to “fix” what they insist is a problem.

I fear it’s a symptom of Hollywood spending decades falsely convincing people that copyright was the only tool out there for “protecting artists.” Of course, this was always a myth. Copyright was created from the beginning as a tool to protect the middlemen and gatekeepers, not the artists and creators themselves. But, one of Hollywood’s greatest tricks has been convincing the creators, whom Hollywood itself is exploiting, that the copyright tool they’re using for said exploitation is in the interest of artists.

So, it’s no wonder that many artists instinctively reach towards copyright as the tool they are focused on in order to “deal with” questions around AI. And that leads to confusing nonsense hearings, such as the one held last week by the Senate Judiciary Committee, focused on copyright and AI. That hearing (as too many congressional hearings are these days) was full of nonsense, like Senator Marsha Blackburn claiming that “fair use” really means a “fairly useful way to steal.” No, Senator, as the Supreme Court has made clear, fair use is the only way in which copyright law can coexist with the 1st Amendment and is a fundamental speech right. Which is something a senator should understand.

But the focus on copyright, again, seems misplaced. As I explained in that group chat I was brought into, creators expecting copyright to protect them are in for a world of hurt. Because even if Congress goes and changes copyright law, it will be changed (as always) to favor the interests of the studios, the labels, and the publishers, who have always made sure that copyright works to their advantage over those of the creators and (especially) over the public (despite the Constitution requiring any copyright law to benefit the public first and foremost).

If content creators are concerned about the impact of AI on their own livelihoods, copyright is likely a poor choice overall. Similarly, if they expect that there is some legal tool that will magically protect their jobs from new technologies, I fear that they are not going to end up being particularly happy either. Historical attempts to ban technology all fail, replaced by society eventually figuring out how to use the technology in a more reasonable way (often leading to more products, and even more revenue for those who were scared of the technology).

As we’ve pointed out over and over again, the Hollywood studios spent years fighting back against the VCR. The MPAA’s Jack Valenti claimed in a congressional hearing about the VCR that: “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” Literally four years after he made that claim, home video revenue provided the Hollywood studios more revenue than box office receipts.

And we’re starting to see creative folks figuring out ways to embrace, rather than shun, AI. In April, the artist Grimes didn’t rely on copyright when she told everyone to go ahead and use her AI-powered voice in any songs they wanted, in exchange for sharing 50% of the revenue back with her. She just asked people to register the songs on her website. In fact, she explicitly does not claim ownership of any of the songs others make.

Within a month there were hundreds of songs, some generating real revenue for Grimes (and whoever created them). And Grimes seems really thrilled with all this. As she told the NY Times in response to a question about whether or not the AI Grimes “negates the need for… real Grimes.”

No, I don’t think so. Maybe for me, but I kind of want that. Feeling really amazing from making beautiful art is something that has typically been behind a gate for a lot of people — extreme amounts of time and energy, years of technical training. I think it’s valuable that there’s a tool with which, if you have a beautiful idea, you can make a beautiful thing and access that.

In a different interview, with NPR’s Planet Money she made a similar, but slightly different point:

I run into absurdly creative humans all the time, but not a lot of people get to be artists. A lot of luck is involved in that. It’s hard to build a fan base, and it’s hard to get your work in front of the public. So if there’s ways to reduce these algorithmic barriers by letting people inhabit my being, then I think we’re moving in a direction I really like.

I’m not saying that everyone needs to do as Grimes does and release their voice or likeness for anyone to use, but with every new technological breakthrough we see the same pattern. We see some folks freak out about it, and quickly rush to copyright law to try to “protect” the old ways of doing things. And that never works. But then we see some more creative folks embrace the new technology, not worry about the copyright implications, and figure out what’s best for their fans and what’s best for creativity as a whole.

This conversation would be a whole lot more productive if we all focused on figuring out the creative ways to embrace the technology and do more with it, then falling back on trying to use the wrong tools (copyright) to try to hold back the tide.