Generative AI has sparked a great deal of hype, fear, and speculation. Courts are just beginning to analyze how traditional copyright laws apply to the creation and use of these technologies. Into this breach has stepped the United States Copyright Office with a call for comments on the interplay between copyright law and generative AI. 

Because copyright law carries draconian penalties and grants the power to swiftly take speech offline without judicial review, it is particularly important not to hastily expand its reach. And because of the imbalance in bargaining power between creators and the publishing gatekeepers with the means to commercialize their work in mass markets, trying to help creators by giving them new rights is, as EFF advisor Cory Doctorow has written, like trying to help a bullied kid by giving them more lunch money for the bully to take. Or, in the spirit of the season, like giving someone a blood transfusion and sending them home to an insatiable vampire.

In comments to the United States Copyright Office, we explained that copyright is not a helpful framework for addressing concerns about automation reducing the value of labor, about misinformation generated by AI, privacy of sensitive personal information ingested into a data set, or the desire of content industry players to monopolize any expression that is reminiscent of or stylistically similar to the work of an artist whose rights they own. We explained that it would be harmful to expression to grant such a monopoly – through changes to copyright or a new federal right.

We believe that existing copyright law is sufficiently flexible to answer questions about generative AI and that it is premature to legislate without knowing how courts will apply existing law or whether the hypes, fears, and speculations surrounding generative AI will come to be.