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Copyright Kills Competition
from the copyright-reform-is-antitrust dept
Copyright owners increasingly claim more draconian copyright law and policy will fight back against big tech companies. In reality, copyright gives the most powerful companies even more control over creators and competitors. Today’s copyright policy concentrates power among a handful of corporate gatekeepers—at everyone else’s expense. We need a system that supports grassroots innovation and emerging creators by lowering barriers to entry—ultimately offering all of us a wider variety of choices.
Pro-monopoly regulation through copyright won’t provide any meaningful economic support for vulnerable artists and creators. Because of the imbalance in bargaining power between creators and publishing gatekeepers, trying to help creators by giving them new rights under copyright law is like trying to help a bullied kid by giving them more lunch money for the bully to take.
Entertainment companies’ historical practices bear out this concern. For example, in the late-2000’s to mid-2010’s, music publishers and recording companies struck multimillion-dollar direct licensing deals with music streaming companies and video sharing platforms. Google reportedly paid more than $400 million to a single music label, and Spotify gave the major record labels a combined 18 percent ownership interest in its now- $100 billion company. Yet music labels and publishers frequently fail to share these payments with artists, and artists rarely benefit from these equity arrangements. There’s no reason to think that these same companies would treat their artists more fairly now.
AI Training
In the AI era, copyright may seem like a good way to prevent big tech from profiting from AI at individual creators’ expense—it’s not. In fact, the opposite is true. Developing a large language model requires developers to train the model on millions of works. Requiring developers to license enough AI training data to build a large language model would limit competition to all but the largest corporations—those that either have their own trove of training data or can afford to strike a deal with one that does. This would result in all the usual harms of limited competition, like higher costs, worse service, and heightened security risks. New, beneficial AI tools that allow people to express themselves or access information.
Legacy gatekeepers have already used copyright to stifle access to information and the creation of new tools for understanding it. Consider, for example, Thomson Reuters v. Ross Intelligence, the first of many copyright lawsuits over the use of works train AI. ROSS Intelligence was a legal research startup that built an AI-based tool to compete with ubiquitous legal research platforms like Lexis and Thomson Reuters’ Westlaw. ROSS trained its tool using “West headnotes” that Thomson Reuters adds to the legal decisions it publishes, paraphrasing the individual legal conclusions (what lawyers call “holdings”) that the headnotes identified. The tool didn’t output any of the headnotes, but Thomson Reuters sued ROSS anyways. A federal appeals court is still considering the key copyright issues in the case—which EFF weighed in on last year. EFF hopes that the appeals court will reject this overbroad interpretation of copyright law. But in the meantime, the case has already forced the startup out of business, eliminating a would-be competitor that might have helped increase access to the law.
Requiring developers to license AI training materials benefits tech monopolists as well. For giant tech companies that can afford to pay, pricey licensing deals offer a way to lock in their dominant positions in the generative AI market by creating prohibitive barriers to entry. The cost of licensing enough works to train an LLM would be prohibitively expensive for most would-be competitors.
The DMCA’s “Anti-Circumvention” Provision
The Digital Millennium Copyright Act’s “anti-circumvention” provision is another case in point. Congress ostensibly passed the DMCA to discourage would-be infringers from defeating Digital Rights Management (DRM) and other access controls and copy restrictions on creative works.
In practice, it’s done little to deter infringement—after all, large-scale infringement already invites massive legal penalties. Instead, Section 1201 has been used to block competition and innovation in everything from printer cartridges to garage door openers, videogame console accessories, and computer maintenance services. It’s been used to threaten hobbyists who wanted to make their devices and games work better. And the problem only gets worse as software shows up in more and more places, from phones to cars to refrigerators to farm equipment. If that software is locked up behind DRM, interoperating with it so you can offer add-on services may require circumvention. As a result, manufacturers get complete control over their products, long after they are purchased, and can even shut down secondary markets (as Lexmark did for printer ink, and Microsoft tried to do for Xbox memory cards.)
Giving rights holders a veto on new competition and innovation hurts consumers. Instead, we need balanced copyright policy that rewards consumers without impeding competition.
Republished from the EFF’s Deeplinks blog.
Filed Under: ai, anti-circumvention, competition, copyright, dmca, dmca 1201, fair use
Comments on “Copyright Kills Competition”
Copyright might kill competition. But what about the alternative to competition, collaboration with a little bit of self-sacrifice?
The owners of a pirate site aren’t in active competition with the people who will read their works or other pirates, they just want people to read, play, watch, and listen to the things they’d be willing to risk their freedom to acquire for someone else. And in the even that they are caught and have to undergo arrest, trial, and indictment, shouldn’t we honor their sacrifice by taking a moment and enjoying what they got us free of charge? And since heroic sacrifice is such a great angle to go with when you stand before the judge and jury, they just might avoid punishment altogether.
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Government-granted monopolies are always bad for society.
anti-monopoly “Black Markets” are the just and natural citizen response to this government abuse.
Copyright and Patent laws are fundamentally unjust government economic interventions.
AI sucks, and every single, rich or not, ai company training on data should be erased from the universe.
That said, the flaw with copyright is that it is only enforceable if you have enough money and power to do so, and only if you have more than the one violating it.
Copyright “law” is a farce.
Lol. Using AI isn’t self expression. It’s not even art. And people can just use actual search engines or websites to access/find information rather than asking a chatbot where they can, for example, find some good vegan empanadas.
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Come on now. You may hate the output, and the environmental costs, and the plagiarism, but it’s definitely self-expression.
And whenever you’re talking about something that limits that then we have to be working on more than vibes.
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That seems a dubious claim unless you mean to say the A.I. has a self to express, and is more than just “A.I.” the marketing term.
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The a.i. doesn’t need a self to express for it to be used for a tool for self-expression. the a.i. video Trump shared of him in a plane dumping shit on protesters was self-expression. As are the myriad of memes mocking him in return.
All I’m saying is that knee-jerk legislation, in any direction, is rarely good. And we should be extra careful when pushing into areas of the first amendment.
FWIW I have no time for generative a.i. but hyperbole and over-reaction are not effective means of governance.
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I don’t want to see companies and people let off the hook with a “self-expression” defense. I still remember how tech orgs kept going to bat for scams such as cryptocurrency mixers and DAOs like Tornado Cash with speech and self-expression arguments. Orgs like the EFF and more feel like they’re going to use the same arguments to try and defang regulations on AI at a crucial moment in time.
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You may be unfamiliar with how some “regular” people use search engines. Even 20 years ago, they thought they could just ask it a question in English and get an answer. Which is why you sometimes get page titles like “how long should I cook a turkey?”—someone figured out these titles got good ranking because people thought the engines as intelligent, and now those people think the engines are intelligent because those queries get them results.
And who do you think is generating those pages for the engines to find? “Actual search engines” are now often “A.I.” with extra steps. It’s not so easy to get away from.
(I don’t even care about what’s computer-generated or not—one could just as well hire cheap labor to write slop, and I imagine that’s where much of it was coming from 5-10 years ago—but sometimes a “get rid of the shit” option would be useful.)
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There’s more nuance to it than this. An LLM with search capabilities can actually find stuff you aren’t finding via a search engine because one limitation of human search prompts is that you may not know the correct terminology in a field to search for what you’re looking for, whereas the LLM may do more than a search based on your phrasing because it predicts the next word from associated training data. Another aspect is that search engines will use algorithms that alter results based on their account profiles and cookies for you, so someone/thing searching the same criteria may not get the exact same results.
You still have to treat it like a Wikipedia entry and review the cited sources rather than just trust the LLM. But I’ve found things via an LLM that didn’t show up within the first few pages of a search result.
It can cut the learning curve on technical areas where RTFM is the slogan for the sometimes hostile, gatekeeping fan/userbase and you don’t have the time or attention span to search the manual to find out that your query isn’t even covered in the manual.
Ah I see it is TechDirt Pro AI Friday, every week like clockwork.
Look copywrite laws all over the world are an absolute mess, readily open to abuse by the rich and regularly not doing enough to protect the small people and DCMA’s anti-circumvention stuff can absolutely get in the bid.
However the idea that just ditching the lot of it and turning it into some sort of free for all will lead to some vast improvement is ridiculous. All giving AI companies the license to do whatever the hell they want will do is reinforce the status quo, you don’t need some crystal ball to see the effects, all you have to do is look at how the likes of OpenAI, Anthropic and xAI have made their models and the effects that has had on everything. We are already living in this “utopian” reality Tori is trying to sell us.
Simply this: AI should be exempt from copyrights
I think it’s only fair that we all pay the same price. In exchange for the ability to have a computer crank out things that LOOK like art, etc and wanting to use it as ones “expression”, it doesn’t make it so. “Oh, here’s a print of the Mona Lisa – its says so much that I want to say about art. So it’s my expression, therefore I own the copyright now!”
Of course not, nor should it be for AI.
THAT SAID, I do believe Prompts could be subject to IP protection under “trade secrets” like the formula for Coca-Cola. That’s pretty much it.
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…are you a bot, or just a new user going off on an ill-informed tangent that coincidentally sounds like a bot flagging a couple of keywords in the article?