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Copyrightability and Artificial Intelligence: A new report from the U.S. Copyright Office

Posted February 20, 2025

Uncopyrightable image generated using Google Gemini, illustrating a group of photographers excited to learn that their nearly identical photos of the public domain Washington Monument are all copyrightable) (“The Office receives ten applications, one from each member of a local photography club. All of the photographs depict the Washington Monument and all of them were taken on the same afternoon. Although some of the photographs are remarkably similar in perspective, the registration specialist will register all of the claims.”) (Compendium of Copyright Office Practices, Section 909.1)

Recently, the United States Copyright Office published its Report on Copyright and Artificial Intelligence, Part 2: Copyrightability, the second report in a three-part series. The Office’s reports and additional related resources can be found on the USCO’s Copyright and Artificial Intelligence webpage.

This latest report was the product of longstanding Copyright Office practices, the USCO’s evolving work and registration guidance in this area, rapid technological developments related to Artificial Intelligence, and over 10,000 reply comments to the Office’s August 2023 Notice of Inquiry. Among those commenters, the Authors Alliance submitted both an initial comment and a reply comment in late 2023.

In our comments, we urged the Copyright Office to not pursue revisions to the Copyright Act at this time and instead work towards providing greater clarity for authors of AI-generated and AI-assisted works (“Instead of proposing revisions to the Copyright Act to enshrine the human authorship requirement in law or clarify the human authorship requirement in the context of AI-generated works, the Office should continue to promulgate guidance for would-be registrants.”) We also noted that, as technology evolves in the coming years, our ideas about the copyrightability of AI-generated and AI-assisted works will likely shift as well.

We are happy to see that the USCO heard our voice and that of many others regarding no need for legislative change at this time (“The vast majority of commenters agreed that existing law is adequate in this area…”) (Report, page ii). We likewise continue to be aligned with the USCO’s view that works wholly generated by Artificial Intelligence are not copyrightable. In reading through the entirety of the report, it is clear that the Office appreciates that some elements of AI-assisted works will be copyrightable, but believes that the level of human control over the AI output will be central to the copyrightability inquiry (“Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.”) (“Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.”) (Report, page iii)

The Office’s report does provide some useful clarity. At the same time, it takes some positions that fail to adequately address the complexity of AI-generated works. Below, we will unpack a number of elements of the report that are noteworthy.

Modifying or arranging AI-generated content

The report makes it clear that the USCO views selection and arrangement of AI-generated work as a viable path towards copyrightability of works where AI was an element in the creation of the work. In 2023, when reviewing the graphic novel Zarya of the Dawn, “the Office concluded that a graphic novel comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.” (Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, page 2) Thus, authors who incorporate AI-generated work into a larger work will often be successful in registering the whole work, but will typically need to disclaim any AI-generated elements.

Alternatively, an author who modifies an AI-generated work outside of the AI environment (e.g., an artist who uses Photoshop to make substantial modifications to an AI-generated image), will usually have a path to copyright registration with the USCO.

The USCO takes the position that most AI-assisted works are not copyrightable

Unlike an AI-generated image later modified manually by a human (which may be copyrightable), when prompt-based modifications to AI generated works are performed entirely within the AI environment, it is clear that the USCO is reluctant to view the resulting work as copyrightable.

Here, the Office’s position regarding Jason Allen’s attempts to register copyright in the two dimensional artwork Théâtre D’opéra Spatial is illuminating. In developing the image using Midjourney, Allen claimed to have used over 600 text prompts to both generate and alter the image, and further used Photoshop to “beautify and adjust various cosmetic details/flaws/artifacts, etc.,” a process which he viewed as copyrightable authorship. In denying his claim, the Office responded that “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.” (88 FR 16190 – Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, page 16192).

The USCO dismisses the idea that the process of revising prompts to modify AI output is sufficient to claim copyright in the resulting work. (“Inputting a revised prompt does not appear to be materially different in operation from inputting a single prompt. By revising and submitting prompts multiple times, the user is “re-rolling” the dice, causing the system to generate more outputs from which to select, but not altering the degree of control over the process. No matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains.”) (Report, page 20) (emphasis added).

Within the report, there is no direct examination of the Théâtre D’opéra Spatial copyright claim and lessons to be learned from it. This is likely due to ongoing litigation between Allen and the USCO. While the USCO has significant practical influence on what materials are protectable under copyright, ultimately the decision falls to the courts. So, this suit and others like it will be important to watch. Still, the lack of a deeper dive into such a real-world example is unfortunate—such examples offer fertile territory for exploring the boundary lines between copyrightable AI-assisted works and those that will remain uncopyrightable.

The report offers a sense of possibility with regard to copyrightable AI-assisted works

Towards the end of its report, the USCO briefly explores AI platforms that allow for greater control of the final work. Interestingly, they point to specific features of Midjourney, which allows users to select and modify specific regions of an image. The Office views this as meaningfully different from modifying an AI-generated work through prompts alone, but takes no position as to whether that level of control will result in copyrightable works ( “Whether such modifications rise to the minimum standard of originality required under Feist will depend on a case-by-case determination. In those cases where they do, the output should be copyrightable.”) (Report, page 27).

Unanswered Questions

Despite the complexity of these issues, the Office has been able to draw some bright lines (e.g., see this webinar on Registration Guidance for Works Containing AI-generated Content).

Yet, the Office also acknowledges that there are remaining unanswered questions (“So I know that everyone in their particular area of creativity is looking for, you know, more examples and brighter lines. And I think at this point in time, we’re going to be learning as everyone else is learning…we will be providing more guidance as we learn more.”) (Webinar Transcript, Robert Kasunic, page 10) This recognition that the USCO, like everyone, is still learning is refreshing and welcome, given that it’s fairly easy to see that there are murky waters all around. AI-generated works are already frequently a complex hybrid of AI expression and human expression.

What are some of these questions?

The technology is still developing and it seems likely that the legal complexity will become even more pronounced as sophisticated generative AI evolves to respond to fine-grained feedback from users, while also offering expression and suggestions that many users will ultimately adopt. Navigating this complexity will be challenging and will require answering a fundamental question: what is the threshold level of human control over AI-generated expression that is necessary as a prerequisite for copyright protection?

Similarly, what standards might the Copyright Office or the courts develop to prove sufficient human authorship when it is intermingled with AI-generated content? The copyright registration process currently requires very little information and no documentation related to this question. For now, creators don’t have clear guidance on what types of documentation will be most effective if a future dispute arises.

To the extent that protection does exist in human-guided, but AI-produced content, how will or should the courts determine what are uncopyrightable, AI-generated elements in what will appear to users as a single unified work? Separating human expression that is enmeshed and embedded within uncopyrightable AI expression will require some framework for distinguishing the two in cases of infringement. Although the courts have already developed methods that may shape this (selection, filtration, abstraction, for example) it remains far from clear whether such tests will perform adequately for AI-produced content

We will be watching developments in this space closely and will continue to advocate for reasonable and flexible approaches to copyrightability that align with the practical realities of authorship in an emerging technological landscape.

Public Domain Day—A Diversion to Sound Recordings

Posted December 29, 2024

Image of 78 RPM disc on Victor player — 78 RPM disc on Victor player (photo © Eric Harbeson)

Happy Public Domain Day!

Every January 1st the United States adds a new crop of works to its public domain. Though the term of copyright is very long, the Constitution provides that it must—eventually—end. This transition is arguably the most important moment in the life of a creative work, excepting only its initial creation. The end goal of copyright in the first place is to encourage the creation of new works, and the public domain is the shared pool out of which those new works may be freely forged. For a great explainer about the value of the public domain, check out the annual Public Domain Day post by our friends at the Center for the Study of the Public Domain! In this post, we thought we would do something a little different from our normal fare and spend some time talking about sound recordings, which only started entering the public domain in the last few years.

As a general rule, works published prior to 1978 have a maximum copyright term of 95 years. Thus (because copyright terms run through the end of the calendar year) on January 1 all works first published in 1929 will be free to use. Well, almost all works. From a copyright perspective, sound recordings are a bit different in several ways, and one way is they are subject to somewhat longer protection. The discrepancy illustrates the curious space sound recordings occupy in US copyright law.

The history of why sound recordings are treated differently is very interesting. It is also too involved to do it justice in a blog post. For thorough treatments of the subject, check out the fascinating articles by Bruce Epperson and Zvi S. Rosen. Each goes into depth on the legal conflicts that arose as artists, scholars, inventors, and policymakers struggled to understand and form policy around the emergence of two new media—sound recordings and piano rolls—that were unlike anything previously known in history.

In short, federal copyright law has only protected sound recordings since February 15, 1972, which was the effective date of the Sound Recordings Act of 1971. Recordings made since that date have been subject to the same laws as any other copyrightable work from the moment they were fixed. However, the Act was not retroactive, so recordings fixed before that date were excluded from federal protection. The Copyright Act of 1976, which completely revised U.S. copyright law, preserved that dichotomy: recordings fixed after 1972 were included; pre-1972 recordings were not.

Though pre-1972 recordings were not protected by federal law, states were free to protect them. States protected pre-1972 recordings perpetually through their common law (as though they unpublished works, which prior to the 1976 act were also protected by state common law), with most states then codifying that protection in criminal statutes. Though state protection was in theory perpetual, the 1976 Act nonetheless put a time limit on that protection—all state protection for pre-1972 recordings was to be preempted and cease in 2047 (75 years after the Sound Recordings Act). The Copyright Term Extension Act later extended that date by 20 years. Thus, all pre-1972 recordings, regardless of how old they were, would remain under state protection until 2067. Had the situation not changed, by the time any domestic recordings entered the public domain, the oldest recording would have been more than 200 years old!

The cabining of pre-1972 recordings was narrowed in 1994, when the Uruguay Round Agreements Act (URAA) took effect. The URAA amended the Copyright Act to provide retroactive copyright to foreign works that had entered the public domain due to failure to non-compliance with formalities, lack of national eligibility, or because they were pre-1972 recordings. This Act inspired the case of Golan v. Holder, which challenged (and eventually affirmed) Congress’s ability to remove works from the public domain. Among other things, the URAA brought pre-1972 foreign recordings (which were not actually in the public domain) under federal copyright. Meanwhile, domestic pre-1972 recordings remained under the exclusive care of the states, with a true public domain only in the distant future.

One result of leaving protection to the states was variations in treatment among the states. The term of protection is one good example. Most states protected recordings for the maximum term permitted by Congress; however, some states cut off protection earlier. One notable example is Colorado, which protected recordings only for 56 years—significantly shorter than in other states (Colorado was also one of only two states to refer to that protection as “copyright”). There were also differences in the nature of the protection. All but two states (Indiana and Vermont) enacted criminal statutes codifying protection; only one state (California) also codified civil penalties. Some states had exceptions for non-commercial use, or for libraries, or both; some had neither. Only one state (New York) had established a common law fair use doctrine for sound recordings, and none had codified the doctrine in a statute.

This resulted in some strange paradoxes in the law, with often sharp disparities. One such result was that recordings and the underlying musical composition they embodied might have different terms of protection. As one typical example, the sheet music for George M. Cohan’s 1917 song, “Over There,” entered the public domain at the end of 1992; however, Nora Bayes’s recording of the same song from the same year would have been protected in most states until 2067. Another example of disparity resulted from differences in federal and state treatment of public performances. Because no state explicitly provided exclusive rights to public performances, for example, no license was needed to publicly play the sound recording of Marvin Gaye’s 1971 hit, “What’s Going On,” but a license was required to play his recording of “Let’s Get It On,” recorded only two years later (licenses were still required for performance of the underlying musical works).

	Musical Composition	Sound Recording
What’s Going On? (1971)	License required	No license required
Let’s Get It On (1973)	License required	License required

Licensing public performance of Marvin Gaye works before the Music Modernization Act.

The situation was unnecessarily complicated, and was frustrating to nearly everyone involved. Recording artists and labels disliked the disparity in performance rights between pre- and post-1972 recordings. Public interest groups, such as librarians and archivists, disliked the lack of uniformity and the only sporadic limitations and exceptions. The issue came to a head when Mark Volman and Howard Kaylan (aka Flo & Eddie), of The Turtles, brought a series of lawsuits attempting to establish that a public performance right existed under the common law of the states (though none had codified one). The failure of those lawsuits in part led to Congress’s passing the Music Modernization Act (MMA) of 2018, which, among other things, finally brought all pre-1972 recordings under federal law.

However, the MMA did not simply apply the existing federal copyright law to pre-1972 sound recordings. Instead, Congress opted to create a parallel statute, which looks very similar to the “normal” copyright laws but in fact comprises an independent scheme. The distinction is evident in the term of protection. Unlike other copyrightable works from the era, which are treated uniformly, the length of the term for sound recordings varies depending on the year of first publication. Recordings published between 1923 and 1946 are protected for 100 years, and recordings published between 1947 and 1956 are protected for 110 years from the date of publication. The recordings that are protected the longest—unpublished recordings—are ironically the ones that are the most threatened by extended protection. Those recordings will remain locked until 2067, regardless of their fixation date.

In addition to establishing limited terms and giving pre-1972 recordings some parity with post-1972 recordings as far as the public performance right, the MMA established that most important copyright limitations and exceptions—especially the fair use and first sale doctrines and the library and teaching exceptions—all apply to pre-1972 recordings. It also tried some new things! It established a mechanism for making noncommercial use of a recording that isn’t being commercially exploited—maybe testing the waters of orphan works legislation. It also expanded the Section 108(h) “last 20 years” exception for libraries to apply to all pre-1972 recordings, regardless of publication status.

There were many questions the MMA left open. For example, prior to the MMA, each state had their own definition of who the default owner of a sound recording was. Congress preserved the confusing and sometimes contradictory patchwork, leaving the state definitions in place. As a result, when ownership has not been established by contract—as is often the case, for example, with archival recordings—the ownership will need to be determined by courts. Congress also left in question the relationship between the MMA and pre-1972 foreign recordings, especially as to whether the MMA’s noncommercial use mechanism applies. Since Congress did not create criminal penalties under the MMA, there is also some question as to whether they left in place the state criminal statutes. But Congress did establish, very firmly, that all sound recordings should no longer be protected for at least another half-century.

Which brings us back to the public domain. As of January 1, most works first published in 1929 will be in the public domain in the USA. 1929 was an important year for sound recordings. It was the last year cylinder recordings were produced. It was the year the last recording studio switched from acoustic to electrical recording techniques (though most had switched a few years earlier). Because of the MMA, those recordings will enter the public domain in the near future, but as a result of the strange history of sound recordings copyright, it will not happen this year. Americans will have to wait five more years for the complete works from those eras to finish entering the public domain.

But thanks to the MMA, published recordings from 1924 are entering the public domain, which would otherwise not be! The class of 1924 includes several important recordings, including the very first recordings of George Gershwin’s Rhapsody in Blue, Al Jolson’s “California Here I Come,” and Isham Jones’s “It Had To Be You.” Despite sound recordings trailing other classes of works by a few years, the 2025 Public Domain Day is a good day for sound recordings enthusiasts!

Support Authors Alliance!

Posted December 3, 2024

As we end the year, I’m writing to ask for your financial support by giving toward our end-of-year campaign (click here to donate online).

In May, Authors Alliance marked its 10th anniversary. We’ve experienced tremendous support and enthusiasm for our work over the last decade, and your collaboration has been an important part of our success. I hope you’ll help Authors Alliance take on our next decade.

We’re proud of our work promoting authorship for the public good by supporting authors who write to be read. In the past year, we secured expanded copyright exemptions for text and data mining research, helped defend authors’ fair use rights in court, launched an important initiative to clarify legal pathways for open access to federally funded research, and much more. We’ve also continued to help authors develop a deeper understanding of how complex policy issues can affect their work, drawing over 20,000 attendees for our in-person and online events on topics such as text and data mining, open access, artificial intelligence, and competition law.

For 2025, we have our work cut out for us. As policymakers actively consider changes to how the law accommodates free expression, access to information, and new technology, we continue to find that we are among the only voices defending authors’ rights to research, write, and share their work for the benefit of the public. Your support for Authors Alliance will help us continue to speak out in support of authors who value the public interest.

Donate Online Today

Thank you,
Dave Hansen
Executive Director

New White Paper on Open Access and U.S. Federal Information Policy

Posted November 18, 2024

Authors Alliance and SPARC have released the first of four planned white papers addressing legal issues surrounding open access to scholarly publications under the 2022 OSTP memo (the “Nelson Memo”). The white papers are part of a larger project (described here) to support legal pathways to open access.

This first paper discusses the “Federal Purpose License,” which is newly relevant to discussions of federal public access policies in light of the Nelson Memo.

The white paper is available here and supporting materials are here.

The FPL, found in 2 C.F.R. § 200.315(b), works like any other copyright licensing agreement between two parties. It is a voluntary agreement between author and agency that, as a condition of federal funding, the agency reserves a nonexclusive license to “reproduce, publish, or otherwise use the work for Federal purposes and to authorize others to do so.” The FPL was updated, effective October 1, to clarify that the reserved license specifically includes the right to deposit copyrighted works produced pursuant to a grant in agency-designated public access repositories.

With the OSTP memos instructing all agencies to make the results of federally-funded projects available to the public immediately upon publication, the FPL provides an elegant legal basis for doing so. Because the FPL is a signed, written, non-exclusive license that springs to life immediately when copyright in the works vest, it survives any future transfers of rights in the work. As a part of Uniform Guidance for all grant-making agencies, it provides consistency across federal grants, simplifying things for grant recipients, who have plenty of other things to worry about (it’s not entirely uniform, though, since some agencies have supplemented the FPL with License text of their own, expanding their rights under the License).

This protects both agencies and authors. Agencies must have permission in order to host and distribute works in their repositories. The FPL ensures that the agency has that authorization and that it continues even after publication rights have been subsequently assigned to a publisher. Meanwhile, authors are—or will be—required under their grant agreements to deposit their federally-funded peer-reviewed articles in the agency’s designated repository. The FPL ensures that, even if an author were to sign exclusive rights in a work to a publisher prior to complying with the deposit mandate, the author could still do so, despite no longer having any rights in the work herself.

The paper analyzes two ambiguous points in the FPL, namely, the scope of what rights agencies have as “Federal purposes” and what rights the agency may subsequently authorize for third parties. As there are no clear answers to these questions, the paper does not draw conclusions; it does, however, attempt to give some context and basis for how to interpret the FPL.

The next papers in this series will explore issues surrounding the legal authority underlying the public access policy, article versioning, and the policy’s interaction with institutional IP policies. Stay tuned for more!

Text Data Mining Research DMCA Exemption Renewed and Expanded

Posted October 25, 2024

U.S. Copyright Office 1201 Rulemaking Process, taken from https://www.copyright.gov/1201/

Earlier today, the Library of Congress, following recommendations from the U.S. Copyright Office, released its final rule adopting exemptions to the Digital Millenium Copyright Act’s prohibition on circumvention of technological protection measures (e.g., DRM).

As many of you know, we’ve been working closely with members of the text and data-mining community as well as our co-petitioners, the Library Copyright Alliance (LCA) and the American Association of University Professors (AAUP), to petition for renewal of the existing TDM research exemption and to expand it to allow researchers to share their research corpora with other researchers outside of their university (something not previously allowed). The process began over a year ago and followed an in-depth review process by the U.S. Copyright Office, and we’re incredibly grateful for the expert legal representation before the Office over this past year by UC Berkeley Law’s Samuelson Law, Technology & Public Policy Clinic, and in particular clinic faculty Erik Stallman, Jennifer Urban and Berkeley Law students Christian Howard-Sukhil, Zhudi Huang, and Matthew Cha.

We are very pleased to see that the Librarian of Congress both approved the renewal of the existing exemption and approved an expansion that allows for research universities to provide access to TDM corpora for use by researchers at other universities.

The expanded rule is poised to make an immediate impact in helping the TDM researchers collaborate and build upon each other’s work. As Allison Cooper, director of Kinolab and Associate Professor of Romance Languages and Literatures and Cinema Studies at Bowdoin College, explains:

“This decision will have an immediate impact on the ongoing close-up project that Joel Burges, Emily Sherwood, and I are working on by allowing us to collaborate with researchers like David Bamman, whose expertise in machine learning will be valuable in answering many of the ‘big picture’ questions about the close-up that have come up in our work so far.”

These are the main takeaways from the new rule:

The exemption has been expanded to allow “access” to corpora by researchers at other institutions “solely for purposes of text and data mining research or teaching.” There is no more requirement that access be granted as part of a “collaboration,” so new researchers can ask new and different questions of a corpus. Access must be credentialed and authenticated.

The issue of whether a researcher can engage in “close viewing” of a copyrighted work has been resolved—as the explanation for the revised rule puts it, researchers can “view the contents of copyrighted works as part of their research, provided that any viewing that takes place is in furtherance of research objectives (e.g., processing or annotating works to prepare them for analysis) and not for the works’ expressive value.” This is a very helpful clarification!

The new rule also modified the existing security requirements, which provide that researchers must put in place adequate security protocols to protect TDM corpora from unauthorized reuse and must share information about those security protocols with rightsholders upon request. That rule has been limited in some ways and expanded in others. The new rule clarifies that trade associations can send inquiries on behalf of rightsholders. However, inquiries must be supported by a “reasonable belief” that the sender’s works are in a corpus being used for TDM research.

Later on, we will post a more in-depth analysis of the new rules–both TDM and others that apply to authors. The Librarian of Congress also authorized the renewal of a number of other rules that support research, teaching, and library preservation. Among them is a renewal of another exemption that Authors Alliance and AAUP petitioned for, allowing for the circumvention of digital locks when using motion picture excerpts in multi-media ebooks.

Thank you to all of the many, many TDM researchers and librarians we’ve worked with over the last several years to help support this petition.

You can learn more about TDM and our work on this issue through our TDM resources page, here.

Antitrust Lawsuit Filed Against Large Academic Publishers

Posted September 17, 2024

On September 12, a San Francisco-based law firm filed an antitrust lawsuit on behalf of UCLA professor Lucina Uddin against six prominent academic publishers and the trade association that represents them: Elsevier, John Wiley & Sons, Sage Publications, Springer Nature, Taylor & Francis, Wolters Kluwer, and the International Association of Scientific, Technical, and Medical Publishers (“STM”). The suit is brought on behalf of a class that it defines as “All natural persons residing in the United States who performed peer review services for, or submitted a manuscript for publication to, any of the Publisher Defendants’ peer-reviewed journals from September 12, 2020 to the present.” The complaint lists just one claim for relief: that “Publisher Defendants and their co-conspirators entered into and engaged in unlawful agreements in restraint of the trade and commerce described above in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.”

To support this claim, the plaintiff makes three key allegations. Namely, that the publishers have illegally agreed amongst each other to abide by:

a “Single Submission Rule,” where researchers are only allowed to submit a manuscript to one journal for consideration unless the journal rejects it;
a “Unpaid Peer Review Rule,” where journals implement policies to not compensate peer reviewers for their labor; and
a “Gag Rule,” where researchers are not allowed to share or discuss their manuscript once they have submitted it to a journal for consideration before the journal publishes it.

Why would any of these actions constitute an antitrust violation? We thought a little background could be helpful:

To understand this lawsuit, we must first consider the purpose of U.S. antitrust law. The fundamental goal of antitrust law is to encourage competition and ultimately to promote consumer welfare. The Supreme Court explains that: “Congress designed the Sherman Act as a consumer welfare prescription.”

Section 1 of the Sherman Antitrust Act does this by prohibiting “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade.” This generally requires proving two things: (1) some sort of agreement or business arrangement, and (2) that this agreement is “in restraint of trade,” i.e., unreasonably harmful to competition.

Proving an agreement can sometimes be a complicated factual question, though often there are good clues, especially when joint activity is coordinated through a trade association (antitrust lawyers love to quote Adam Smith on trade associations: “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”) In this case, the plaintiff says that the agreements are so obvious that they are in fact published openly in several portions of the STM’s “International Ethical Principles for Scholarly Publication” which are then implemented and enforced by each publisher.

Proving the second part, that the agreement is in restraint of trade or unreasonably harmful to competition can be more complicated. The courts have developed three different analytical frameworks for evaluating whether conduct harms competition in this context:

A “per se” rule for agreements that are “nakedly” anticompetitive. Examples include agreements to fix prices (what’s alleged here, at least with respect to payment for peer review), bid-rigging, agreements to divide markets, and a few other kinds of less common agreements.
A “rule of reason” test—which applies in most cases—that weighs the pro-competitive effects of the agreement against anti-competitive effects and prohibits agreements only when the anti-competitive harms outweigh the benefits.
“Intermediate” or “quick-look” scrutiny, which covers a small number of cases in which agreements look suspicious on their face but are not so obviously anticompetitive as to fall under the “per se” rule.

The plaintiff’s complaint claims that the publishers’ agreements violate the Sherman Act regardless of which of these three tests apply. But often, some of the most significant battles in antitrust lawsuits are about which of these standards apply since the costs associated with litigating a suit can change dramatically depending on which is used. If the court accepts that the “per se” standard applies, the plaintiff likely wins. If the “quick-look” rule applies, the burden is on the defendant to show that its conduct is not anticompetitive. But if the “rule of reason” standard applies, the suit will likely involve extensive discovery, expert witnesses, and other factual evidence about what exactly the market is, whether the defendants had sufficient market power to negatively affect competition, and whether the agreement would negatively or positively affect competition.

In these cases, defining the relevant market is often crucial. In most antitrust cases, defining the relevant market involves identifying substitutes for the product under review. On this point, the plaintiff argues:

“Publication by peer-reviewed journals is a relevant antitrust market. For scholars who seek to communicate their scientific research, there is no adequate substitute for publication in a peer-reviewed journal. Peer-reviewed journals establish the validity of scientific research through the peer review process, communicate that research to the scientific community, and avoid competing claims to the same scientific discovery.”

For market definition, it is important to include only close substitutes and exclude those that are distant. For academic publishing, even though there are many ways authors can share their manuscripts—from emailing their colleagues, to posting on their personal websites, to publishing with upstart new journals—the fact remains that the journals in question are the primary means of dissemination and are the most heavily read and heavily cited. So at first glance, the complaint seems realistic in its formulation of the market at issue.

The complaint then goes on to argue that the publishers hold significant power in this market and misuse that power, touching on familiar themes such as how these academic publishers extract significant profits, charge high rates for access and increasingly high fees for authors to publish openly, and so on. The plaintiffs allege that this market power has allowed the publishers to make agreements amongst each other (the three allegations noted above) in ways that allow them to maximize profits while also maintaining their market power. We note that it’s true that there may be some other explanations for these practices—in fact, some authors may be proponents of some of them, for example, the single-submission rule. But even if there are other explanations for these rules, with the current arrangement agreed through STM, the allegation is that no member publisher will even try to compete or develop other approaches that may drive up the price for peer reviewers, compete for placement of papers, etc.

How this lawsuit will turn out is hard to predict. This lawsuit flags some very problematic practices enforced on the academic publishing industry by prominent publishers. But there are many other problems with the academic publishing industry not discussed in the complaint. We’ve long thought that the public-interest nature of academic research and publishing is complicated when paired with commercial publishers who have strong incentives to maximize profits. Of course, even for-profit firms are expected to operate within the law; profit-maximizing to the point of adopting anti-competitive practices is fundamentally at odds with their essential social responsibilities.

Hachette v. Internet Archive Update: Second Circuit Court of Appeals Rules Against Internet Archive

Posted September 5, 2024

We got a disappointing decision yesterday from the Second Circuit Court of Appeals in the long-running Hachette v. Internet Archive (IA) copyright lawsuit about IA’s digitization and lending of books. The Court affirmed the district court’s decision that IA cannot circulate digital copies of books they have legitimately acquired in physical copies, even when only the same number of copies as legitimately acquired are circulated to a single user at a time—just as a physical book would be loaned.

The Court, focusing on IA’s lending of digitized books that were available for license as ebooks from the publishers, concluded that IA’s fair use defense fails. We think this decision will result in a meaningful reduction in access to knowledge. This is sad news for many authors who have relied on IA’s Open Library for research and discovery, and for readers who have used Open Library to find authors works. However, we also view it as a decision limited to its facts—that is, IA’s particular implementation of controlled digital lending (CDL), and more specifically, its lending of books that are already available in licensed digital formats.

We plan to do a more in-depth analysis of the Court’s decision later, but for now, we offer some initial thoughts. First, there are a couple of bright spots in the opinion:

1) The Court rejected the district court’s conclusion that IA was engaged in commercial use when looking at the first factor of fair use. The publishers argued IA’s lending of digitized books was commercial in nature because IA received a few thousand dollars from a for-profit used-bookseller and also solicited donations on its website. The Court rightly pointed out that if that was the standard, virtually every nonprofit that solicits donations would by default only be able to engage in commercial use. This was an issue we and others strongly urged the Court to address, and we’re glad it did.

2) For the most part, the Court focused its analysis on the facts of the case, which was really about IA lending digitized copies of books that were already available in ebook form and licensable from the publishers. The legal analysis in several places turned on this fact, which we think leaves room to make fair use arguments regarding programs to digitize and make available other books, such as print books for which there is no licensed ebook available, out-of-print books, or orphan works. CDL will remain an important framework, especially considering the lack of an existing digital first-sale doctrine.

We are also disappointed by several key points in the decision:

One was the Court’s assessment of the first fair use factor, “purpose and character of the use.” The Court’s analysis of this factor was in some ways unsurprising but nevertheless disappointing. The Court did little more than conclude that the use was not transformative and, therefore, not fair use. Though we think there are strong arguments that CDL is transformative, whether CDL is “transformative” is just one of the supporting rationales for the argument that CDL is fair use. The other justifications—that CDL supports teaching, scholarship, and research, along with complementing the first sale doctrine and supporting the public-interest mission of libraries—are at the heart of CDL. The Court didn’t engage with those other arguments at all and also ignored meaningful discussion of cases where non-transformative copying supported a fair use finding because of the public benefits.

A second key issue is about whether IA’s digital lending negatively impacts the market for the original works. This issue probably deserves a whole blog post to itself, but in short the analysis came down to who shoulders the burden of proving or disproving market harm, and what default assumptions the court has about market harm. The following quotes from the decision will give you a sense of how the Court analyzed the issue:

[a]lthough they do not provide empirical data of their own, Publishers assert that they (1) have suffered market harm due to lost eBook licensing fees and (2) will suffer market harm in the future if IA’s practices were to become widespread. IA argues that Publishers cannot rely on the “common-sense inference” of market harm without data to back that up, citing American Society for Testing & Materials v. Public.Resource.Org, Inc. [citations omitted]. . . . We agree with Publishers’ assessment of market harm.

Despite IA’s experts having offered meaningful data and analysis indicating a lack of market harm on sales of publishers’ books, the Court went on to say:

We are likewise convinced that “unrestricted and widespread conduct of the sort engaged in by [IA] would result in a substantially adverse impact on the potential market for [the Works in Suit]. . . . Though Publishers have not provided empirical data to support this observation, we routinely rely on such logical inferences where appropriate in assessing the fourth fair use factor. . . . Thus, we conclude it is “self-evident” that if IA’s use were to become widespread, it would adversely affect Publishers’ markets for the Works in Suit.

We are also disappointed by how the Court portrayed the overall public benefit of IA’s lending and its long-term effect: “while IA claims that prohibiting its practices would harm consumers and researchers, allowing its practices would―and does―harm authors.” We think this is a gross generalization and mischaracterization of how IA’s digital lending affects most authors. Authors are researchers. Authors are readers. IA’s digital library helps authors create new works and supports their interests in having their works read. This ruling may benefit the largest publishers and most prominent authors, but for most, it will end up harming more than it will help.

Authors Alliance and SPARC Supporting Legal Pathways to Open Access for Scholarly Works

Posted August 27, 2024

Authors Alliance and SPARC are excited to announce a new collaboration to address critical legal issues surrounding open access to scholarly publications.

One of our goals with this project is to clarify legal pathways to open access in support of federal agencies working to comply with the Memorandum on “Ensuring Free, Immediate, and Equitable Access to Federally Funded Research,” (the “Nelson Memo”) which was issued by the White House’s Office of Science and Technology Policy in 2022. For more than a decade, federal open access policy was based on an earlier memo instructing federal agencies with research and development budgets over $100 million to make their grant-funded research publicly accessible for free online. The Nelson Memo, drawing from lessons learned during the COVID-19 Pandemic, provides important updates to the prior policy. Among the key changes are extending the requirements to all agencies, regardless of budget, and eliminating the 12-month post-publication embargo period on articles.

The Nelson Memo raises important legal questions for agencies, universities, and individual researchers to consider. To help ensure smooth implementation of the Nelson Memo, we plan to produce a series of white papers addressing these questions. For example, a central issue is the nature and extent of the pre-existing license, known as the “Federal Purpose License,” which all federal grant-making agencies have in works produced using federal funds. The white papers will outline the background and history of the License, and also address commonly raised questions, including whether the License would support the application of Creative Commons or other public licenses; possible constitutional or statutory obstacles to the use of the License for public access; whether the License may apply to all versions of a work; and whether the use of the License for public access would require modification of university intellectual property policies.

In addition to the white paper series, we plan to convene a group of experts to update the SPARC Author Addendum. The Addendum was created in 2007 and has been an extremely useful tool in educating authors on how to retain their rights, both to provide open access to their scholarship and to allow for wide use of their work. However, in the nearly two decades since its creation, models for open access and scholarly publishing have changed dramatically. We aim to update the Addendum to more closely reflect the present open access landscape and to help authors to better achieve their scholarship goals.

A final piece of the project is to develop a framework for universities looking to recover rights for faculty in their works, particularly backlist and out-of-print books that are unavailable in electronic form. Though the open access movement has made significant strides in advancing free availability and reuse of scholarly articles, that progress has generally not extended to books and other monographic works, in part because of the non-standard and often complicated nature of book publishing licenses. It has also not done as much to open backfile access to older journal articles. We think a framework for identifying opportunities to recover rights and relicense them under an open access license will help advance open access of these works.

The project will be spearheaded by Eric Harbeson, who joined the Authors Alliance this week as Scholarly Publications Legal Fellow. Eric is a recent graduate of the University of Oregon School of Law. Prior to law school, Eric had a dual career as a librarian/archivist and a musicologist. Eric did extensive work advocating for libraries’ and archives’ copyright interests, especially with respect to preservation of music and sound recordings. Eric’s publications include a well-regarded report on the Music Modernization Act, as well as two scholarly music editions. Eric can be reached at eric@authorsalliance.org.

Clickbait arguments in AI Lawsuits (will number 3 shock you?)

Posted August 15, 2024

The booming AI industry has sparked heated debates over what AI developers are legally allowed to do. So far, we have learned from the US Copyright Office and courts that AI created works are not protectable, unless it is combined with human authorship.

As we monitor two dozen ongoing lawsuits and regulatory efforts that address various aspects of AI’s legality, we see legitimate legal questions that must be resolved. However, we also see some prominent yet flawed arguments that have been used to enflame discussions, particularly by publisher-plaintiffs and their supporters. For now, let’s focus on some clickbait arguments that sound appealing but are fundamentally baseless.

Will AI doom human authorship?

Based on current research, AI tools can actually help authors improve creativity, productivity, as well as the longevity of their career.

When AI tools such as ChatGPT first appeared online, many leading authors and creators publicly endorsed it as a useful tool like any other tech innovation that came before it. At the same time, many others claimed that authors and creators of lesser caliber will be disproportionately disadvantaged by the advent of AI.

This intuition-driven hypothesis, that AI will be the bane of average authors, has so far proved to be misguided.

We now know that AI tools can greatly help authors during the ideation stage, especially for less creative authors. According to a study published last month, AI tools had minimal impact on the output of highly creative authors, but were able to enhance the works of less imaginative authors.

AI can also serve as a readily-accessible editor for authors. Research shows that AI enhances the quality of routine communications. Without AI-powered tools, a less-skilled person will often struggle with the cognitive burden of managing data, which limits both the quality and quantity of their potential output. AI helps level the playing field by handling data-intensive tasks, allowing writers to focus more on making creative and other crucial decisions about their works.

It is true that entirely AI-generated works of abysmal quality are available for purchase on some platforms. Some of these works are using human authors’ names without authorization. These AI-generated works may infringe on authors’ right of publicity, but they do not present commercially-viable alternatives to books authored by humans. Readers prefer higher-quality works produced with human supervision and interference (provided that digital platforms do not act recklessly towards their human authors despite generating huge profits from human authors).

Are lawsuits against AI companies brought with authors’ best interest in mind?

In the ongoing debate over AI, publishers and copyright aggregators have suggested that they have brought these lawsuits to defend the interests of human authors. Consider the New York Times for example, in its complaint against OpenAI, NY Times describes their operations as “a creative and deeply human endeavor (¶31)” that necessitates “investment of human capital (¶196).” NY Times argues that OpenAI has built innovation on the stolen hard work and creative output from journalists, editors, photographers, data analysts, and others—an argument contrary to what the NY Times once argued in court in New York Times v. Tasini, that authors’ rights must take a backseat to NY Times’ financial interests in new digital uses.

It is also hard to believe that many of the publishers and aggregators are on the side of authors when we look at how they have approached licensing deals for AI training. These licensing deals can be extremely profitable for the publishers. For example, Taylor and Francis sold AI training data to OpenAI for 10 million USD. John Wiley and Sons earned $23 million from a similar deal with a non-disclosed tech company. Though we don’t have the details of these agreements, it seems easy to surmise that in return for the money received, the publishers will not harass the AI companies with future lawsuits. (See our previous blog post about these licensing deals and what you can do as an author.) It is ironic how an allegedly unethical and harmful practice quickly becomes acceptable once the publishers are profiting from it.

How much of the millions of dollars changing hands will go to individual authors? Limited data exist. We know that Cambridge University Press, a good-faith outlier, is offering authors 20% royalties if their work is licensed for AI training. Most publishers and aggregators are entirely opaque about how authors are to be compensated in these deals. Take the Copyright Clearance Center (CCC) for example, it offers zero information about how individual authors are consulted or compensated when their works are sold for AI training under CCC AI training license.

This is by no means a new problem for authors. We know that traditionally-published book authors receive around 10% of royalties from their publishers: a little under $2 per copy for most books. On an ebook, authors receive a similar amount for each “copy” sold. This little amount handed to authors only starts to look generous when compared to academic publishing, where authors increasingly pay publishers to have their articles published in journals. The journal authors receive zero royalties, despite the publishers’ growing profit.

Even before the advent of AI technology, most authors were struggling to make a living on writing alone. According to an Authors Guild’s survey in 2018, the median income for full-time writers was $20,300, and for part-time writers, a mere $6,080. Fair wage and equitable profit sharing is an issue that needs to be settled between authors and publishers, even if publishers try to scapegoat AI companies.

It’s worth acknowledging that it’s not just publishers and copyright industry organizations filing these lawsuits. Many of these ongoing lawsuits have been filed as class actions, with the plaintiffs claiming to represent a broad class of people who are similarly situated and (thus they alleged) hold similar views. Most notably, in Authors Guild v. OpenAI, Authors Guild and its named individual plaintiffs claim to represent all fiction writers in the US who have sold more than 5000 copies of a work. There’s also another case where plaintiff claims to represent all copyright holders of non-fiction works, including authors of academic journal articles, which got support from Authors Guild, and several others in which an individual plaintiff asserts the right to represent virtually all copyright holders of any type.

As we (along with many others) have repeatedly pointed out, many authors disagree with the publishers and aggregators’ restrictive view on fair use in these cases, and don’t want or need a self-appointed guardian to “protect” their interests. We have seen the same over-broad class designation in the Authors Guild v. Google case, which caused many authors to object, including many of our own 200 founding members.

Respect for copyright and human authors’ hard work means no more AI training under US copyright law?

While we wait for courts to figure out the key questions on infringement and fair use, let’s take a moment to remember what copyright law does not regulate.

Copyright law in the US exists to further the Constitutional goal to “promote the Progress of Science and useful Arts.” In 1991, the Supreme Court held in Feist v. Rural Telephone Service that copyright cannot be granted solely based on how much time or energy authors have expended. “Compensation for hard work“ may be a valid ethical discussion, but it is not a relevant topic in the context of copyright law.

Publishers and aggregators preach that people must “respect copyright,” as if copyright is synonymous with the exclusive rights of the copyright holder. This is inaccurate and misleading. In order to safeguard the freedom of expression, copyright is designed to embody not only the rightsholders’ exclusive rights but also many exceptions and limitations to the rightsholders’ exclusive rights. Similarly, there’s no sound legal basis to claim that authors must have absolute control over their own work and its message. Knowledge and culture thrives because authors are permitted to build upon and reinterpret the works of others.

Does this mean I should side with the AI companies in this debate?

Many of the largest AI companies exhibit troubling traits that they have in common with many publishers, copyright aggregators, digital platforms (e.g., Twitter, TikTok, Youtube, Amazon, Netflix, etc.), and many other companies with dominant market power. There’s no transparency or oversight afforded to the authors or the public. The authors and the public have little say in how the AI models are trained, just like how we have no influence over how content is moderated on digital platforms, how much royalties authors receive from the publishers, or how much publishers and copyright aggregators can charge users. None of these crucial systematic flaws will be fixed by granting publishers a share of AI companies’ revenue.

Copyright also is not the entire story. As we’ve seen recently, there are some significant open questions about the right of publicity and somewhat related concerns about the ability of AI to churn out digital fakes for all sorts of purposes, some of which are innocent, but others are fraudulent, misleading, or exploitative. The US Copyright Office released a report on digital replicas on July 31 addressing the question of digital publicity rights, and on the same day the NO FAKES Act was officially introduced. Will the rights of authors and the public be adequately considered in that debate? Let’s remain vigilant as we wait to see the first-ever AI-generated public figure in a leading role to hit theaters in September 2024.

Some Initial Thoughts on the US Copyright Office Report on AI and Digital Replicas

Posted August 1, 2024

On July 31, 2024, the U.S. Copyright Office published Part 1 of its report summarizing the Office’s ongoing initiative of artificial intelligence. This first part of the report addresses digital replicas, in other words, how AI is used to realistically but falsely portray people in digital media. The Office in its report recommends new federal legislation that would create a new right to control “digital replicas” which it defines as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.”

We remain somewhat skeptical that such a right would do much to address the most troubling abuses such as deepfakes, revenge porn, and financial fraud. But, as the report points out, a growing number of varied state legislative efforts are already in the works, making a stronger case for unifying such rules at the federal level, with an opportunity to ensure adequate protections are in place for creators.

The backdrop for the inquiry and report is a fast-developing space of state-led legislation, including legislation with regard to deepfakes. Earlier this year, Tennessee became the first state to enact such a law, the ELVIS Act (TN HB 2091), while other states mostly focused on addressing deepfakes in the context of sexual acts and political campaigns. New state laws are continuing to be introduced, making it harder and harder to navigate the space for creators, AI companies, and consumers alike. A federal right of publicity in the context of AI has already been discussed in Congress, and just yesterday a new bill was formally introduced, titled the “NO AI Fakes Act.”

Authors Alliance has watched the development of this US Copyright Office initiative closely. In August 2023, the Office issued a notice of inquiry, asking stakeholders to weigh in on a series of questions about copyright policy and generative AI. Our comment in response to the inquiry was devoted in large part to sharing the ways that authors are using generative AI, how fair use should apply to training AI, and that the USCO should be cautious in recommending new legislation to Congress.

This report and recommendation from the Copyright Office could have a meaningful impact on authors and other creators, including both those whose personality and images are subject to use with AI systems, and those who are actively using AI in the writing and research. Below are our preliminary thoughts on what the Copyright Office recommends, which it summarizes in the report as follows:

“We recommend that Congress establish a federal right that protects all individuals during their lifetimes from the knowing distribution of unauthorized digital replicas. The right should be licensable, subject to guardrails, but not assignable, with effective remedies including monetary damages and injunctive relief. Traditional rules of secondary liability should apply, but with an appropriately conditioned safe harbor for OSPs. The law should contain explicit First Amendment accommodations. Finally, in recognition of well-developed state rights of publicity, we recommend against full preemption of state laws.”

Initial Impressions

Overall, this seems like a well-researched and thoughtful report, given that the Office had to navigate a huge number of comments and opinions (over 10,000 comments were submitted). The report also incorporates the many more recent developments that included numerous new state laws and federal legislative proposals.

Things we like:

In the context of an increasing number of state legislative efforts—some overbroad and more likely than not to harm creators than help them—we appreciate the Office’s recognition that a patchwork of laws can pose a real problem for users and creators who are trying to understand their legal obligations when using AI that references and implicates real people.

The report also recognizes that the collection of concerns motivating digital replica laws—things like control of personality, privacy, fraud, and deception—are not at their core copyright concerns. “Copyright and digital replica rights serve different policy goals; they should not be conflated.” This matters a lot for what the scope of protection and other details for a digital replica right looks like. Copy-pasting copyright’s life+70 term of protection, for example, makes little sense (and the Office recognizes this, for example, by rejecting the idea of posthumous digital replica rights).

The Office also suggests limiting the transferability of rights. We think this is a good idea to protect individuals from unanticipated downstream use by companies that may persuade individuals to sign deals that would lock them into unfavorable long-term deals. “Unlike publicity rights, privacy rights, almost without exception, are waivable or licensable, but cannot be assigned outright. Accordingly, we recommend a ban on outright assignments, and the inclusion of appropriate guardrails for licensing, such as limitations in duration and protection for minors.”

The Office explicitly rejects the idea of a new digital replica right covering “artistic style.” We agree that protection of artistic style is a bad idea. Creators of all types have always used existing styles and methods as a baseline to build upon, and it’s resulted in a rich body of new works. Allowing for control over “style” however well-defined, would impinge on these new creations. Strong federal protection over “style” would also contradict traditional limitations on rights, such as Section 102(b)’s limits on copyrightable subject matter and the idea/expression dichotomy, which are rooted in the Constitution.

Some concerns:

The Office’s proposal would apply to the distribution of digital replicas, which are defined as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.” This definition is quite broad and could potentially include a large number of relatively common and mostly innocuous uses—e.g., taking a photo with your phone of a person and applying a standard filter on your camera app could conceivably fall within the definition.

First Amendment rights to free expression are critical for protecting uses for news reporting, artistic uses, parody and so on. Expressive uses of digital replicas—e.g., a documentary that uses AI to replicate a recent event involving recognizable people, or reproduction in a comedy show to to poke fun at politicians—could be significantly hindered by an expansive digital replica right unless it has robust free expression protections. Of course, the First Amendment applies regardless of the passing of a new law, but it will be important for any proposed legislation to find ways to allow people to exercise those rights effectively. As the report explains, comments were split. Some like the Motion Picture Association proposed enumerated exceptions for expressive use, while others such as the Recording Industry Association of America took the position that “categorical exclusions for certain speech-oriented uses are not constitutionally required and, in fact, risk overprotection of speech interests at the expense of important publicity interests.”

We tend to think that most laws should skew toward “overprotection of speech interests,” but the devil is in the details on how to do so. The report leaves much to be desired on how to do this effectively in the context of digital replicas. For its part, “[t]he Office stresses the importance of explicitly addressing First Amendment concerns. While acknowledging the benefits of predictability, we believe that in light of the unique and evolving nature of the threat to an individual’s identity and reputation, a balancing framework is preferable.” One thing to watch in future proposals is what such a balancing framework actually includes, and how easy or difficult it is to assert protection of First Amendment rights under this balancing framework.

The Office rejects the idea that Section 230 should provide protection for online service providers if they host content that runs afoul of the proposed new digital replica rights. Instead, the Office suggests something like a modified version of the Copyright Act’s DMCA section 512 notice and takedown process. This isn’t entirely outlandish—the DMCA process mostly works, and if this new proposed digital replica right is to be effective in practice, asking large service providers that are benefiting from hosting content to be responsive in cases of alleged infringing content may make sense. But, the Office says that it doesn’t believe the existing DMCA process should be the model, and points to its own Section 512 report for how a revised version for digital replicas might work. If the Office’s 512 study is a guide to what a notice-and-takedown system could look like for digital replicas, there is reason to be concerned. While the study rejected some of the worst ideas for changing the existing system (e.g., a notice-and-staydown regime), it also repeatedly diminished the importance of ideas that would help protect creators with real First Amendment and fair use interests.

The motivations for the proposed digital replica right are quite varied. For some commenters, it’s an objection to the commercial exploitation of public figures’ images or voices. For others, the need is to protect against invasions of privacy. For yet others, it is to prevent consumer confusion and fraud. The Office acknowledges these different motivating factors in its report and in its recommendations attempts to balance competing interests among them. But, there are still real areas of discontinuity—e.g., the basic structure of the right the Office proposes is intellectual-property-like. But it doesn’t really make a lot of sense to try to address some of the most pernicious fraudulent uses, such as deepfakes to manipulate public opinion, revenge porn, or scam phone calls, with a privately enforced property right oriented toward commercialization. Discovering and stopping those uses requires a very different approach and one that this particular proposal seems ill-equipped to deal with.

Barely a few months ago, we were extremely skeptical that new federal legislation on digital replicas was a good idea. We’re still not entirely convinced, but the rash of new and proposed state laws does give us some pause. While the federal legislative process is fraught, it is also far from ideal for authors and creators to operate under a patchwork of varying state laws, especially those that provide little protection for expressive uses. Overall, we hope certain aspects of this report can positively influence the debate about existing federal proposals in Congress, but remain concerned about the lack of detail about protections for First Amendment rights.

In the meantime, you can check out our two new resource pages on Generative AI and Personality Rights to get a better understanding of the issues.