The history of technology is rife with copyright panics. In the 1980s, major rightsholders ran to Congress and the courts, claiming that videotape recorders (VTR) were “to the American film producer and the American public as the Boston strangler is to the woman home alone.” Then, the Supreme Court declined to embrace the hype, noting that the VTR was capable of all kinds of non-infringing uses, like time-shifting and cautioning courts to avoid rewriting copyright law in response to new technologies. We believe that courts now should be similarly wary about the hype surrounding AI.
Hollywood’s hyperbole has echoed that of composer John Phillip Sousa, who claimed in 1906 that the player piano and the gramophone would destroy music composition; portrait artists who feared the camera would replace the paintbrush. None of these things happened. Cameras, for example, sparked a resurgence of portraiture and, by making it possible for more people to create image, led to unexpected developments—like the rise of photojournalism.
New markets, new ideas, and new creators are actually what copyright is supposed to promote, not restrict. Using copyright to lock in existing gatekeepers and massive rightsholders’ profits helps neither the public nor individual artists. Generative AI has sparked the latest wave of anxiety and with it a massive wave of litigation. In multiple cases around the U.S. and the world, rightsholders are asking courts to do precisely what the Supreme Court warned against: dramatically expand copyright protections based in substantial part on hyperbole and speculation. They should decline to do so.
Copyright owners claim that unless courts abandon 300-year-old copyright principles—and give rightsholders the power to control *non-infringing *works created by others—an imagined flood of AI-generated works will devastate creative markets. Under this “market dilution” theory, building generative AI tools cannot be fair use because those tools might be encourage the proliferation of competing works.
As EFF has explained to the courts in multiple amicus briefs in * Concord Music Group, Inc. v. Anthropic PBC *and
The result? Art doesn’t get created, ideas are never expressed, and we’re all worse off. Copyright shouldn’t be a tool to silence future creative competitors—whether or not they use AI in tehir work.
And the plaintiffs in these cases get at least two other things wrong. First, research shows that large generative AI models are unlikely to produce infringing works because the more data on which a model is trained, the less any individual training example matters to any particular output.
Second, AI tools aren’t necessarily displacing human creativity. To take a just a few examples:
with queer, plus-sized Black superheroes.
It is not the place of courts to say these people are not artists or that AI cannot augment human creativity in a positive way.
Given this range of experimentation, courts should be reluctant to decide in advance what tools do and do not foster “human creativity.” Like the VTR, large language models are general purpose tools, used by humans to do a broad variety of things far beyond generating lyrics. The effects of this particular technological innovation will doubtless be far-reaching, disruptive, and potentially harmful for some—but distorting copyright law is not the way to address those harms.