[ A battle is brewing in the U.S. Copyright Office over artificial
intelligence’s use of copyrighted material — and Big Tech is
spending millions to ensure they win.]
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“THE BATTLE FOR GLOBAL AI DOMINANCE”  
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Freddy Brewster
November 21, 2023
The Lever
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_ A battle is brewing in the U.S. Copyright Office over artificial
intelligence’s use of copyrighted material — and Big Tech is
spending millions to ensure they win. _

, Photo illustration by The Lever. Source image: Michael Dwyer / AP
Photo

 

Big Tech leaders are spending millions of dollars — and pushing
dubious national security concerns — to try to prevent federal
regulators from forcing them to pay for the copyrighted works their
companies are using to train their AI systems.

At issue is a new effort by the U.S. Copyright Office to consider how
to apply U.S. copyright law to the nascent AI industry. The matter has
triggered impassioned pushback from powerful tech interests who say
they must have access to people’s hard work for free, or the future
of their industry will be jeopardized. 

The fight comes as artists
[[link removed].],
actors
[[link removed].],
news organizations
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and others have sued AI companies using their work to train the
emergent technology on how to create images in the style of certain
artists [[link removed]], replicate
voices
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of singers, write new literature based on copyrighted works
[[link removed]],
and many other instances in which original work is being harvested off
the internet free of charge.

As the AI industry is buffeted by executive shake ups
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and mounting concerns that AI systems are growing too powerful
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Google, Microsoft, Meta Platforms, and Big Tech venture capital firm
Andreessen Horowitz have spent over $30 million lobbying lawmakers and
regulators on AI and other tech-related issues. 

Andreessen Horowitz — which provided [[link removed]]
funding for Airbnb, Facebook, and helped
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finance
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Elon Musk’s takeover of Twitter — has even claimed that if the
Copyright Office were to enforce its existing laws protecting
copyrighted works from exploitation, investment dollars could be lost
and U.S. national security could be threatened. 

“Over the last decade or more, there has been an enormous amount of
investment — billions and billions of dollars — in the development
of AI technologies, premised on an understanding that, under current
copyright law, any copying necessary to extract statistical facts is
permitted,” Andreessen Horowitz wrote in a comment
[[link removed]] to the
Copyright Office. 

“A change in this regime will significantly disrupt settled
expectations in this area,” the firm continued. “Those
expectations have been a critical factor in the enormous investment of
private capital into U.S.-based AI companies which, in turn, has made
the U.S. a global leader in AI. Undermining those expectations will
jeopardize future investment, along with U.S. economic competitiveness
and national security.”

The New York Times
[[link removed]], the Screen
Actors Guild-American Federation of Television and Radio Artists
(SAG-AFTRA [[link removed]]),
the News Media Alliance
[[link removed]], Getty
Images [[link removed]], and
other organizations and trade groups representing artists, musicians,
and journalists have complained that AI companies are violating
copyright law by copying their material and using it to train AI. The
use of AI was a core concern during this year’s historic writers’
[[link removed]]
and actors’
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strikes.

“Almost all of these AI companies are ingesting copyrighted works in
order to train their AI, and in most instances they are not licensing,
they’re not getting the permission, and they’re not compensating
the copyright owners for using those works,” Keith Kupferschmid, CEO
of the Copyright Alliance told _The Lever_. 

The Copyright Alliance, which represents over 2 million copyright
holders and over 15,000 organizations, said in
[[link removed]]
a comment to the Copyright Office that other than online piracy, “no
copyright issue has drawn more interest from the Copyright Alliance
membership than generative AI.”

“Overzealous Enforcement Of Copyright”

The Copyright Office has roughly 440 employees tasked with examining
hundreds of thousands of copyright registrations each year. Roughly
500,000 copyrights registrations are issued
[[link removed]], which provide protections for
original works, ideas, concepts, art, music, and other works. 

Last month, President Joe Biden issued an executive order
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requiring the U.S. Patent and Trade Office to work with the Copyright
Office on recommendations governing AI, including how copyrighted
material is used to train AI. 

The Copyright Office is currently conducting a study
[[link removed]] examining
a potential mandate that would require AI developers to disclose
training materials and compensation for copyright holders whose works
were used to train AI.

The Copyright Office began soliciting public comments on Aug. 20 and
has received over 10,000 comments from rightsholders, trade groups, AI
developers and venture capital firms.   

Andreessen Horowitz, a Silicon Valley-based firm that spent
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more than
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$800,000
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in
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2023
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lobbying the White House, lawmakers, and federal agencies on AI,
cryptocurrencies, and other matters, issued a comment with the
Copyright Office
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In the comment letter, the firm claims that AI can revolutionize the
fields of medicine, education, technology, and warfare, but companies
need free access to copyrighted material to do so. Especially for an
AI technology called “Large Language Models,” which is “trained
on something approaching the entire corpus of the written word,”
Andreessen Horowitz wrote. 

The firm claimed that if the Copyright Office were to make AI
developers pay to use copyrighted material, it would risk billions of
dollars in investments and threaten national security. 

“The United States is currently at the vanguard of the AI industry
as a direct result of these expectations and investments,” wrote
[[link removed]] Andreessen
Horowitz. “There is a very real risk that the overzealous
enforcement of copyright when it comes to AI training… could cost
the United States the battle for global AI dominance.”

Andreessen Horowitz and its Big Tech brethren believe that the fair
use doctrine of copyright law allows them to hoover up information and
use it to train AI. The fair use doctrine allows the use of
copyrighted material for news, commentary and criticism, research, and
when the use of the material produces a new concept or body of work
that is different from the original version. 

Microsoft spent
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$6.8 million
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lobbying
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Congress and a slew of federal departments on AI, facial recognition
technology, and other issues. Microsoft is a partial owner of OpenAI
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which operates DALL-E
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and ChatGPT [[link removed]], two of the leading image- and
text-based AI technologies currently in use. 

OpenAI, which recently registered
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to be its own lobbying firm, claims that its technology does not store
exact copies of text and images and that ChatGPT doesn’t provide
“verbatim repetition or ‘memorization’ of training data,”
according to its comment filed with the Copyright Office
[[link removed]]. 

OpenAI said its AI technology is trained on information publicly
available on the internet, information obtained through licensing
agreements, and information “that our users or human trainers create
and provide,” OpenAI wrote to the Copyright Office. 

OpenAI went on to say that given the vast amount of information on the
internet, having to pay to use it would be impractical.

“The diversity and scale of the information available on the
internet is thus both necessary to training a ‘well-educated’
model (which, again, does not contain copyrighted expression) and also
makes licensing every copyrightable work contained therein effectively
impossible,” OpenAI wrote.

OpenAI said fair use is central to its training process and that a
“restrictive interpretation… could drive massive investments in AI
research and supercomputing infrastructure overseas.”

Meta, Facebook’s parent company, has spent
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$14.6 million
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this year
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lobbying Congress and the Biden administration on AI and other
tech-related issues. In comments filed with the Copyright Office, Meta
claimed [[link removed]] that
it is only extracting “unprotectable facts, ideas, and concepts”
from copyrighted work, all of which are not protected by copyright
law.

But even if they were protected, Meta argued, the widespread
extraction and use of those works would fall under the fair use
doctrine. Meta compared using the extracted material to train AI to
teaching a child how to speak.

“Just as a child learns language… by hearing everyday speech,
bedtime stories, songs on the radio, and so on, a model ‘learns’
language by being exposed — through training — to massive amounts
of text from various sources,” Meta wrote. 

Google spent $9.2 million
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this year
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lobbying
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lawmakers on intellectual property enforcement and a slew of issues
pertaining to AI and other tech-related matters. Google also believes
the fair use doctrine protects AI from copyright infringement,
according to a comment the company filed with the Copyright Office
[[link removed]].

Big Tech’s interpretation of fair use doesn’t sit well with
copyright advocates.

“When you use a copyrighted work without permission of the copyright
owner… you are an infringer, there’s no question about it,”
Kupferschmid of the Copyright Alliance said.

Kupferschmid said he doesn’t agree with most of Big Tech’s fair
use arguments. Many tech companies pointed to a Supreme Court case
[[link removed]] that
found Google was allowed to copy copyrighted work and use it on its
website for search purposes, which is fundamentally different from
what is happening with AI, Kupferschmid said. 

“What’s going on here is that AI is copying works to create works
that could be a substitute in the market for the works that are being
copied,” he added. “We expect AI companies to license copyrighted
works that they are ingesting to train their AI engines and their AI
models.”

“Forced To Pay For It, Or Go Bankrupt”

Biden’s Federal Trade Commission (FTC), which oversees economic
competitiveness and enforces monopoly laws, wrote to the Copyright
Office [[link removed]] that
the commission has concerns about AI’s potential harm to consumers,
workers, and small businesses. 

The FTC provided a short list of AI usage it sees as potential
copyright violations, which includes training AI on protected works
without the creator’s consent, selling work that mimics a
creator’s “style, vocal or instrumental performance,” or actions
that devalue the work of creators. 

Devaluation of work and imitating copyrighted material is especially
concerning for some news organizations. 

“Publishers invest in producing high-quality content that is taken
without permission to train the AI systems… that then compete
directly with publisher content, reducing publisher revenues and
employment, tarnishing their brands, and undermining their
relationships with readers,” the News Media Alliance wrote to the
Copyright Office
[[link removed]].

The Thomson Reuters Enterprise Centre, which owns Reuters News and a
legal research platform called Westlaw, is suing Ross Intelligence,
Inc., a legal research company, for allegedly mining Westlaw’s
content and using it to train Ross’ AI. Ross shut down in 2021
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citing financial issues after being sued by Reuters, but the case is
still headed to a jury trial, a federal judge ruled
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on Sept. 25. 

Ross is a direct competitor to Westlaw, and the case could determine
how AI companies will operate in the future, Scott Hervey, an
entertainment, intellectual property, and business attorney, told _The
Lever._

“[The case] will certainly have a significant impact on the way
courts look at whether or not the use of third-party content in
training and AI is fair use,” Hervey said. 

Hervey doesn’t foresee any federal legislation on copyright and AI
coming anytime soon, given other, more pressing issues facing
Congress. However, he believes AI’s extraction of copyright material
will most likely be settled in the courts and result in licensing
deals similar to arrangements worked out by music streaming platforms
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and musicians. 

The Associated Press signed a deal with OpenAI to give the tech
company access to the AP’s vast archive of stories and to train AI
technology on it. 

Hervey added that it is disingenuous for tech companies to say their
investments are at risk if they can’t have unlimited access to
people’s hard work. 

“Just because the technology company hasn’t figured out a way to
make money doesn’t mean that they should get away with infringing
work and not paying for it,” Hervey said. “There will eventually
be a judgment and [AI companies] will either be forced to pay for it
or go bankrupt. But we’ll see — this is a quickly moving space.”

_The Lever_ is a nonpartisan, reader-supported investigative news
outlet that holds accountable the people and corporations manipulating
the levers of power. The organization was founded in 2020 by David
Sirota, an award-winning journalist and Oscar-nominated writer who
served as the presidential campaign speechwriter for Bernie Sanders.

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