US Copyright: The Ethics, the Law and Creativity (Part I)

We are driving head-on into copyright this August.

Nearly eleven months ago, I began a copyright series in this newsletter, exploring the foundational questions around ownership and creativity in the age of artificial intelligence. We discussed the rise of generative AI tools like Stable Diffusion and Midjourney, which sparked legal challenges from artists who claimed their works were used without consent for AI training. We also examined the Writers Guild of America’s strike against AI’s potential to disrupt traditional writing jobs, and highlighted cases where individual artists, like Sarah Silverman, joined class action lawsuits against AI companies for unauthorized use of their work.

These discussions underscored the growing tension between innovation and intellectual property rights. As AI technologies evolve, so too do the legal and ethical frameworks that govern them. Our goal now is to build on that foundation and address the latest developments and ongoing debates.

Over the next few weeks, we'll talk about the growing distinction between ethics and law, explore key legal battles, analyze proposals from the US Copyright Office, and discuss practically how developers, businesses, and users are behaving in the absence of clear guidance.

Ethics vs. Law

One of the core challenges in the AI and copyright debate is distinguishing between ethical considerations and legal interpretations. What people believe to be ethical varies, and does not always align with what the law says. Over the past few months, my understanding of this issue has deepened, highlighting the complexities and nuances involved. I have read dozens of filed legal documents, position statements by plaintiffs and defendants, consulted with legal counsel, and read legal opinions and interpretations. I've also engaged in conversations with members of all affected parties and listened to the perspectives of artists—both those who feel threatened by AI and those who are actively using it.

As a user, I have experimented with many of these platforms myself and have studied the technical specifications for various generative AI applications. As a teacher, my aim in the classroom is to give my students hands-on experience and technical understanding as well as to bring forth both the ethical and legal considerations. As a writer, I strive to be both informative and provocative. Good writing should do both—be fair and balanced, and take a stance. I will say that my stance continues to evolve. We should all reserve the right to have an opinion and change our mind with the introduction of new information.

I share that context because I'm approaching this series from the perspective of a highly educated generalist, leaving the door open for subject matter expertise, opinions, and feelings to come out in the comments. Feel free to dispute the facts, challenge the opinions, and express your feelings. Being clear about which is which can help us all both empathize with your perspective and align on the facts.

Ethics refers to a set of moral principles that guide behavior. In the context of AI and copyright, ethical considerations might include fairness, transparency, and respect for creators’ rights. However, the law is a system of rules that a particular country or community recognizes as regulating the actions of its members. Legal requirements around copyright are designed to protect intellectual property, but they may not always address every ethical concern. For the purposes of this series, we are focused on US copyright law, so if you are from another country, feel free to share and comment, but also understand that our legal systems are not equivalent.

Understanding this distinction is crucial. For instance, while it may be ethically questionable to use someone’s work without their permission, it might still fall within the bounds of fair use under copyright law. This discrepancy can lead to heated debates and varying perspectives on what should be permissible. By exploring these differences, I aim to provide a comprehensive understanding of the current landscape, enabling informed discussions about the future of AI and copyright.

As we navigate this complex intersection of ethics and law, I encourage you to keep an open mind and engage thoughtfully. Let’s use this series as an opportunity to deepen our understanding, challenge our assumptions, and collectively explore the legislative and judicial processes that are weighing innovation and intellectual property rights.

Whose Interests are Affected?

To fully grasp the complexities of AI and copyright, it’s important to recognize the different stakeholders involved:

Creators: Artists, writers, musicians, and other creators are concerned about how AI-generated content might infringe on their rights and livelihoods. They seek protections to ensure their work is not used without consent or compensation. Creators are the backbone of the creative industry, and their concerns center around maintaining control over their original works and receiving fair recognition and compensation.

Commercial Intermediaries: Record labels, publishers, and other intermediaries play a crucial role in the distribution and monetization of creative works. They are interested in maintaining control over copyrighted content and ensuring they receive fair compensation. These entities often hold the rights to distribute and profit from the works of creators and are deeply invested in the legal frameworks that protect these rights.

AI Companies: Developers face the challenge of navigating legal frameworks while pushing the boundaries of innovation. They must defend their use of copyrighted materials for training AI models and ensure compliance with evolving laws. AI companies are at the forefront of technological advancement and must balance innovation with respect for existing intellectual property laws.

Commercial AI Users: Companies deploying AI in their business operations benefit from increased efficiency, creativity, and innovation that AI tools can provide. They use AI-generated content for marketing, product development, and other commercial purposes. These users must navigate the legal landscape to ensure that their use of AI-generated content does not infringe on existing copyrights, while also leveraging the technology to gain a competitive edge.

Individual AI Users: Consumers and end-users of AI-generated content, whether for personal or commercial purposes, benefit from the creativity and convenience these tools offer. Individual users might use AI tools for personal projects, learning, or small-scale commercial activities. They also need to be aware of the ethical and legal considerations surrounding the content they consume and create. While they may not have the same resources as large companies, their use of AI tools still impacts the broader discussion on copyright and ethics.

I find it’s important to distinguish these parties, as the public conversation often pits Creators and AI Companies against each other when the lawsuits are primarily coming from Commercial Intermediaries like record labels and publishers whose interests may not be fully aligned with creators.  In fact, we’ve seen some of these intermediaries, such as Getty Images, go on to develop their own proprietary Generative AI platforms, signaling that this is not necessarily an effort to compensate creators, but rather to shift the locus of power and profits to the aggregators.  

Key Developments in the Past Nine Months

Since our last discussion, the legal landscape surrounding generative AI and copyright has seen significant activity. A total of 28 copyright lawsuits have been filed against various AI companies, reflecting the growing concerns about the use of copyrighted material in AI training. Several high-profile cases have emerged, each addressing different aspects of this complex issue:

Getty Images v. Stability AI: Getty Images has accused Stability AI of using millions of its copyrighted photos, captions, and metadata without permission to train its AI models. This case is crucial as it will set a precedent for how visual content can be used in AI development and the extent of copyright protection over digital images.

Authors Guild v. OpenAI: The Authors Guild has filed a lawsuit against OpenAI, alleging that OpenAI used copyrighted books without permission to train its AI models. This case will help define the boundaries of fair use for text-based content in AI training and could impact how literary works are protected in the age of AI.

In re OpenAI ChatGPT Litigation: Consolidating multiple high-profile claims from plaintiffs like Paul Tremblay, Sarah Silverman, and Chabon, this litigation addresses the widespread concerns about the unauthorized use of copyrighted material in AI training. The outcome will likely influence future AI practices and data usage standards.

Daily News v. Microsoft: The Daily News alleges that Microsoft's AI tools used their copyrighted content without permission. This case could impact how news organizations protect their content and how tech companies use such content in AI applications.

Sarah Andersen v. Stability AI Ltd: Artist Sarah Andersen claims that Stability AI used her copyrighted images without permission to train its AI models. The outcome will be pivotal in determining the use of artists' works in AI development and the protections required for creators.

In addition to these high-profile cases, our series will place a special focus on the most recent Suno and Udio cases, which have become central to the debate over AI and copyright and are also provide a lens into the various stages throughout the process from accessing copyrighted material to generating outputs that mimic original works.

Suno Case: This case involves claims that Suno used copyrighted music in their AI training without proper licensing. The arguments revolve around whether such use constitutes fair use and how transformative the AI-generated outputs are.

Udio Case: Similar to Suno, Udio faces allegations of using copyrighted material without consent. The legal battle will explore the nuances of fair use and the potential market impact of AI-generated content.

In our next issue, we’ll read both the plaintiff’s cases and the first response from Suno.  For those of you who have lived through the Napster and Spotify eras, this lawsuit is interesting not only because of its relationship to other AI cases, but also to the context of the music industry, which is perhaps the most mature and tested of the arts given the complexity in how the lyrics, score, recordings, and performance all play a role.  For music lovers, this is one not to miss!

The Copyright Office Speaks

After putting out a public call for opinions (you can read mine here), The US Copyright Office (USCO) has recently put forward a proposal addressing key issues related to AI and copyright.  This is not only an incredible opportunity to see democracy in action, it's happening in the context of a Supreme Court ruling overturning the Chevron deference that clearly limits the powers of interpretation of the USCO. In addition, the USCO's key leadership was appointed in 2020 during the Trump administration and has continued through the Biden administration, demonstrating the way in which agencies can maintain a non-partisan perspective.   

The proposal seeks to establish clearer guidelines for the use of copyrighted material in AI training, potentially requiring licensing or permission. It emphasizes the need for transparency in AI training processes and data sources. Additionally, the proposal includes recommendations for evaluating AI-generated content for copyright protection based on its originality and transformative nature.

The potential impacts of this proposal are significant, and address nearly every aspect of the legal cases currently before the courts. Creators could benefit from stronger protections and clearer guidelines on how their work can be used in AI training. AI developers may face new requirements for licensing and transparency, impacting their operational processes. Consumers and end-users might see changes in how AI-generated content is accessed and shared, with a greater emphasis on ethical use and compliance.

Looking Ahead: What to Expect in Our Series

Over the next few weeks, we will dive deeper into these key cases and explore the broader issues they raise. Our goal is to provide a comprehensive understanding of the current legal landscape, the ethical debates, and the practical implications for various stakeholders. Here’s a preview of what’s to come:

Article 2: Case Study Deep Dive – Suno and Udio

Article 3: The USCO’s Proposal – Addressing Key Issues

Article 4: Fair Use and Transformation in AI

Article 5: Practical Implications for Creators and Developers

Questions to Consider

As we move through these discussions, I encourage you to consider the following questions:

• How can we balance the benefits of AI-generated content with the rights of original creators?
• What role should ethics play in shaping copyright law and policy?
• How will the legal battles and USCO proposals impact the future of AI and creativity?
• What strategies can creators, developers, and users adopt to navigate this evolving landscape responsibly?

This series aims to be both informative and provocative, encouraging thoughtful debate and providing a platform for diverse perspectives. As we explore these complex and often heated topics, remember that peoples’ careers are being impacted as we speak, which oftentimes evokes a strong emotional response.  We can honor these feelings while at the same time providing a safe space for rational discourse and exploration of ideas.

I’ve heard many people say that you can’t have a conversation on social media, but we know that’s bullshit.

Let’s talk.

I'm Lori Mazor. I teach AI with a Human Touch.™ I'm reinventing how we educate, strategize, and build the future one article at a time. If you enjoy this newsletter.

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