The Copia Institute Tells The Copyright Office Again That Copyright Law Has No Business Obstructing AI Training
A little over a month ago we told the Copyright Office in a comment that there was no role for copyright law to play when it comes to training AI systems. In fact, on the whole there's little for copyright law to do to address the externalities of AI at all. No matter how one might feel about some of AI's more dubious applications, copyright law is no remedy. Instead, as we reminded in this follow-up reply comment, trying to use copyright to obstruct development of the technology instead creates its own harms, especially when applied to the training aspect.
One of those harms, as we reiterated here, is that it impinges on the First Amendment right to read that human intelligence needs to have protected, and that right must inherently include the right to use technological tools to do that reading," or consumption in general of copyrighted works. After all, we need record players to play records - it would do no one any good if their right to listen to one stopped short of being able to use the tool needed to do it. We also pointed out that this First Amendment right does not diminish even if people consume a lot of media (we don't, for instance, punish voracious readers for reading more than others) or at speed (copyright law does not give anyone the right to forbid listening to an LP at 45 rpm, or watching a movie on fast forward). So if we were to let copyright law stand in the way of using software to quickly read a lot of material to it would represent a deviation from how copyright law has up to now operated, and one that would undermine the rights to consume works that we've so far been able to enjoy.
Which is why we also pointed out that using copyright to deter AI training distorted copyright law itself, which would be felt in other contexts where copyright law legitimately applies. And we highlighted a disturbing trend emerging in copyright law from other quarters as well, this idea that whether a use of a work is legitimate somehow depends on whether the copyright holder approves of it. Copyright law was not intended, or written, to give copyright owners an implicit veto over any or all uses of works - the power of a copyright is limited to what its exclusive rights allow control over and fair use doesn't otherwise justify.
A variant of this emerging trend also getting undue oxygen is the idea that profiting from a use of a copyrighted work used for free is somehow inherently objectionable and therefore ripe for the copyright holder to veto. But, again, such would represent a significant change if copyright law could work that way. Copyright holders are not guaranteed every penny that could potentially result from the use of a copyrighted work, and it has been independently problematic when courts have found otherwise.
Furthermore, to the extent that this later profiting may represent an actual problem in the AI space, which is far from certain, a better solution is to instead keep copyright law away from AI outputs as well. Some of the objection to AI makers later profiting seems to be based on the concern that certain enterprises might use works for free to develop their systems and then lock up the outputs with their own copyrights. But it isn't necessary for copyright to apply to everything that is ever created, and certainly not by an artificial intelligence, so we should therefore also look hard at whether it is itself appropriate for copyright to apply to AI outputs. Not everything needs to be owned; having works immediately enter the public domain after their creation is an option, and a good one that vindicates copyright's goals of promoting the exchange of knowledge.
Which brings us back to an earlier point to echo again now, that using copyright law as a means of constraining AI is also an ineffective way of addressing any of its potential harms. If, for instance, AI is used in hiring decisions and leads to discriminatory results, such is not a harm recognized by copyright law, and copyright law is not designed to address it. In fact, trying to use copyright law to fix it will actually be counterproductive: bias is exacerbated when the training data is too limited, and limiting it further will only make worse the problem we're trying to address.