We’re Going Tinker With The Contours of IP When We Need to Do Automated Luxury Communism. Again.

Sweeping across the country with the speed of a transient fashion in slang or Panama hats, political war cries or popular novels, comes now the mechanical device to sing for us a song or play for us a piano, in substitute for human skill, intelligence, and soul.

John Phillips Sousa, “The Menace of Mechanical Music,” 1906

Taking the second revolution [that of information technology] as accomplished, the average human being of mediocre attainments or less has nothing to sell that its worth anyone’s money to buy.

The answer, of course, is to have a society based on human values other than buying and selling.

Norbert Wiener, “Cybernetics,” 1948

The copyright lawsuits targeting AI content generation have arrived. For example, Getty Images is suing Stability AI, and a set of small artists represented by Matthew Butterick (who designed my favorite font) is going after Stability AI and Midjourney, along with the CoPilot coding generator.

It’s easy to feel sympathy for the plaintiffs in these cases. The creators of AI image (and text) generators are large, well funded tech companies. They have created a potentially extraordinarily lucrative product by building on the work of millions of artists and writers, all without a cent of compensation. Common sense, and the larger legal framework of copyright which we’ve become accustomed to, suggests that can’t possibly be fair.

And yet, as someone who had a close eye on the legal and cultural ferment of the so-called “copyfight” some twenty years ago, I have my doubts about the ability of Intellectual Property (IP) as a tool to protect human creativity in the face of ever accelerating machine-aided reproduction (and now, perhaps, even a sort of machine-aided production) of culture.

First, lets just note that the threat to human creators from AI text/image/music generators isn’t really so different than the threat to human creators from the kind of image/music/speech recording that we now consider mundane. I don’t have to hire a band to play me music for my workout, I can just put in my earbuds and queue up what I want to listen to on the streaming music service of my choice.

Streaming music services are, in a sense, the final end state of the IP wars of the early twenty-first century. They represent a version of the “universal jukebox” that was the dream of the IP holders of the time. I pay a flat fee, and I get most of recorded music available to listen to at the time and place of my choosing. Rights holders still make money. Artists, in theory, still make money.

I say “in theory” because it’s been well-documented that it’s pretty damn hard for artists to make a living off of streaming services. Still, I would guess that’s something like the solution Getty would like to see for AI image generation. Fees paid to rights holders for AI image generation, just like Spotify pays rights holders for musical reproduction.

It’s not that simple, of course. The way Machine Learning models work makes any kind of payout to individual artists for the use of their images to generate AI images difficult to do. Machine Learning models are designed to “generalize” from their inputs, learning something about how people draw cats or take photographs of rainy streets from each piece of training data. Ideally, the model shouldn’t memorize a particular piece of training data and reproduce it verbatim. Thus, it becomes very tricky to trace which artist to pay for any particular image generated. A model like a streaming service, which pays out individual artists when their work gets streamed, doesn’t seem possible. About the best you could do is pay an institution like Getty to train the AI model, and then Getty could (in theory) make a flat pay out to everyone in the collection.

The alternative model we proposed twenty years ago was to loosen copyright protection, allow for much more fluid sharing of creative content, and trust that artists would find some way to get their audiences to support them. Give the CD away and sell a t-shirt or whatever. This model never flourished, though some big names made it work. That’s part of how we got streaming services.

In the end, neither strict intellectual property (in which every piece of training data is accounted for and paid for) nor loose intellectual property (in which AI can train however it likes for free) solve the problem of supporting creativity. This is largely because human creativity is naturally overabundant. People will create given even the slightest opportunity to. Recording (and now generating) technology makes this worse, but the use value and market value of creativity have always aligned spectacularly poorly.

If we want want human creativity to flourish, we should work on broadening social support for health care, for housing, for education. Build that, and people will create with AI, without AI, alongside AI. Leave it aside, and no exactly right IP protections will nourish creativity.

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