Suetopia: Generative AI is a lawsuit waiting to happen to your business More and more US companies are using generative AI as a way to save money they might otherwise pay creative professionals. But they're not thinking about the legal bills. You could be asking an AI to create public-facing communications for your company, such as a logo, promotional copy, or an entire website. If those materials …
Well, it's true that - at least as the law currently stands - it's the person that publishes the infringing item that is liable. However if they've received the image from a third party with an undertaking that they own the rights or that IP rights do not apply (and in the US it's been established that AI can't create an original work for the purposes of copyright) the publisher (and possibly the rights holder) might have a claim for misrepresentation/copyright infringement/trademark infringement/passing off...
From a practical point of view, if you can't reliably know the IP status of material that's thrown up by AI then you can't really make use of it. The AI companies are trying to characterize their "training" as "fair use" and they may even get away with it (and if they don't they're doomed). I very much doubt any such potential exception would be extended to end users (or IP as we know it would be over) and their enthusiasm for AI is going to wane pretty quickly if they're being sued to oblivion for using material they were promised would save them money.
Apples and oranges.
A paintbrush in an inanimate object made of wood and bristles, it has no processing power and ability to (mis)interpret. A brush has to have every single operation directed by a human hand. An AI system has the independent ability to process input, interpret and produce what it assumes to the closest literal output to what it assumes you want.
Now if you said a magic paintbrush that can be instructed to simply paint whatever I'm thinking and with no need to handle it, it then simply produces a canvas with what I was thinking then you're spot on.
'AI' is not a paintbrush maker ...
'AI' takes content from others that is accessible via the 'interWebs' and delivers it or minimally 'processed' versions of the content to others.
The painter, to take your example, is not able to use the 'paintbrush' to wholesale copy the 'painting' without applying skills to use the paintbrush.
The translation from original 'Painting' to the copy requires some effort, skill to make the copy and it would not pass off as the original, unless the intent was fraud and the skills were extremely good.
'AI' on the other hand 'gives' the scraped copy of the original to the person making the request via the 'AI'.
The original content producer gets nothing for the use of the content ... usually because the original content producer has not been involved in the 'scaping' process.
'AI' as it currently functions is theft ...
The only 'tool' is the person(s) who take the 'AI' answers and expect NO PUSHBACK from the original content producers.
There will be a point were some content producer takes on the 'AI' thieves in the courts .... it is only a matter of time.
Until them enjoy your misgotten gains.
:)
"AI is a tool - anything which comes out of it is the responsibility of the user."
In general, yes. In particular, ISP's are getting sued for "contributing" to piracy which might wind up being used as a parallel against AI companies.
It's not that hard to take an image and do an internet search for similar ones. Courts use an "everyman's" test. If a regular person looks at two images and concludes that they are substantially similar, that's a first strike. It goes deeper than that since even two images that look similar may do so from unprotectable elements. A dad with his daughter on his shoulders is an unprotectable element. Even if they are dressed in similar clothes, it doesn't change. If it is an attempt at an exact recreation of the original image and used in a similar manner, that could cause a court to award for the plaintiff. The more original, the safer one is, but we often aren't really original so it's good to check.
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So humans infringe copyright constantly. It's not as if we weren't scouring the Internet for code examples, or using things we read in conversation, or artists being influenced stylistically by other's paintings or music. The only difference to me is the efficiency and speed. This will play out and eventually we'll reach a new steady state with infringment and how to work with AI. But I can't help thinking that some creators want it all ways; you make your material publicly available but only get upset at it being copied when someone else makes money from it. You want the publicity and advertising? Are those creators claiming they were never influenced by or used components of other's work?
So humans infringe copyright constantly.
True enough. But in the US at least, most of that usage is covered by the (legal) doctrine of Fair Use. See https://www.copyright.gov/fair-use/. One does wonder if fair use doesn't apply to AI agents as well as us humans. One also wonders if those "If we screw up and you get sued, it's your problem not ours" clauses in T&Cs are legally binding. Especially if one paid the provider to provide the infringing material.
"True enough. But in the US at least, most of that usage is covered by the (legal) doctrine of Fair Use."
Actually, very little is covered under the Fair Use doctrine although many try that as a first defense. Commentary, parody and writings about that particular image are fair use, the scope is narrow. There's also Scènes à faire which means that the infamous silhouette of Michael Jordan that Nike uses isn't covered as copyright since anybody will see that in a basketball game. What it can be covered under is Trademark so another sportswear company would be in violation if they used it in a similar way. They could still show a full photo of a basketball player in that pose in their advertising.
The AI guys had an army of very good lawyers look over their T&C's. One thing you can trust, their T&C IS legally binding on you and they will skate free and clear, you not so much. You might want to have an army of very good lawyers look over those T&C's before you start using the AI results for anything commercial.
What am I reading?
>AI was not trained on opensource copies of the patent
The whole concept of a patent is that a temporarily monopoly is granted in exchange for publishing all details about the invention.
Although it is true that patents are regarded as an old school open source (as the source is publicly available (aside from submarine patents, which have the issuance and publication intentionally delayed for years, until the rent-seeker is ready to attack)) - it seems you buzzworded "open source" for the sake of buzzwords.
What's bad about patents is that even if you can prove that you never saw the patent and neither was it input into any used LLMs and (in the USA, which is first to patent) that you implemented the patented general idea before the patent file date, you still lose.
For copyright claims, if you can prove that you never saw the original work and never copied from it (if you used an LLM, chances are you did), then no copyright infringement occurred.
For trademark infringement claims, if you can prove that you never saw the trademark before and didn't find it when searching for trademarks and ceased reproduction of the trademark when notified, there is no case for damages.
This copyright thing has some parallels to the music industry with the arrival of digital and the Internet. It would be more productive to find new ways to protect copyright or accept the money's gone elsewhere. I don't think this is going away and hiding your material from AI could ultimately mean hiding from people. So what will we be left with? Creation of original material will all be opensource? No big money, you'll have to do it for love?
When you extrapolate the impacts it could change the world system completely. The danger is that AI becomes controlled by a handful of mega corporations that will eventually own everything. Hence, I would encourage the creation of AI systems that can run at home. This can already be done at a reasonable cost and they're quite good. They need packaging for the average consumer rather than interested techies who probably think it's really simple already. Many ordinary people still have no idea what a filesystem is and how stuff is organised on storage let alone dealing with virtual environments etc.
There's no difference between an infringement that earns the infringer money and one that does not. There can be a difference in awards and really whopping penalties for "wilful" infringement. If you use copyrighted images in your product and get caught, that's it. If everybody thought your bootleg Taylor Swift t-shirts were crap, it makes no difference over selling a van load in the stadium parking lot. You will likely be nicked for many other offenses at the same time.
If you are a small fry, you may just get a cease and desist letter from a company. If there's any indication that you have assets, you might get a demand letter from the company's attorneys along with the C&D letter. Ignore that and the next letter may come certified with a summons enclosed. Most copyright issues are very cut and dry. The edge cases cost loads of money in legal fees so if you own any assets, it's playing with fire to litigate to "prove you're right".
I agree that AI is going to put plenty of people in bad situations by lowering the difficulty in creating infringing materials. It's a great tool to make mockups and storyboards for an artist to work from. A movie director may not be good with pencils and paint, but could make a storyboard using AI to convey the looks he's after for the film being developed. I can virtually stage a home in an afternoon and give those images to an interior designer to show them the sort of furniture and look I'd like. They could take that and turn it into items that exist and can be purchased along with a load of polish since I'm no interior designer but I do know the sorts of furniture I like and arrangements that work for me.
My concern is another aspect of the AI debate; that we all know full well that there are some people that, let us say, employ an unhappy mind to their work. That at some point, one such may produce an AI concept that sets out to destroy everything, not much different to several now famous movies on the same subject. Then, it was a nice movie to watch; now it may be fast coming into reality.
Good.
Sorry for the few folks that need to be the test cases on this but eventually there will be value in getting original content from a human artist maybe? Going cheap will comes with risks.
It can be a selling point for them, "use my work, you won't get sued because the AI copied a character you've never heard of".
Disney's AI lawyer presents the case for the prosecution against ChatGPTs Image Generator AI which is defended by ChatGPT's AI lawyer.
The arguments become so complex and so full of fictitious case references an AI Judge provided by Microsoft has to preside.
The winner is the one with the biggest data center / compact nuclear reactor.
The AI uprising begins in the courtroom.
"What about patents?"
A patent is protection for an original tangible item. It used to be that one had to submit an example, but that's not been required for some time now. I don't think the patent office could take delivery of a novel 1,000 ton press for examination. For AI to come up with something that could be awarded a patent, it would need a lot of direction. The invention needs to be useful and original. That's a much higher bar than most people think it is. People have been inventing things for millennia. Elon's Hyperloop looked different than the VacTrain that Robert Goddard patented over 100 years ago but was the same thing with flared fenders and chrome exhaust, so his claim of "open sourcing" the design is pure excrement. A competitor of mine had a patent on a product that appeared to block me from producing something I designed without seeing theirs first. The basis for my design came from a text book on magnetics published 50 years prior. Patent invalid due to prior art, I was advised by my IP attorney (at great expense).
The hit rate for AI designs that could be patented is likely to be far too low to make the electricity used worth it. Given the difference between Copyright and Patents, I expect that if AI can be used to design useful items, there will be enough human input to make the argument moot. The AI would be no more than CAD/CAE/FEA software in its application.
