AI-enabled IP uniquely infringes on established IP -- training data, creative works, patent floods -- causes miscalc, monopolies, crowd-out.

[Barry C. Lynn is the executive director of the Open Markets Institute. Over the past two decades, Lynn pioneered understanding of how the monopolies of the 21st century threaten our democracy, individual liberties, security, and prosperity. Lynn’s efforts to update anti-monopoly law and thinking for the digital era have been fully embraced by the Biden administration and have shaped the thinking of policymakers and scholars around the world. His warnings on structural flaws in international systems predicted today’s supply chain crises, and his proposed remedies have been widely studied by the U.S. government, Europe, Asia, the IMF, and the OECD.]

For more than two decades, the authors and publishers of news, books, music, photography, and other forms of easily digitizable materials have fought with little success to protect their copyrighted properties and livelihoods from the power of the platform monopolists. This includes a long list of lawsuits against Google and other corporations for not preventing individuals and businesses from sharing copyrighted materials on platforms ranging from YouTube to Google News without permission. Such transmission of data all but eliminates the ability of copyright owners to get paid for their work, while also removing most of the incentives for consumers to pay for what they read, watch, and listen to. Now the rapid rollout of generative AI is taking this existing suite of problems and amplifying it at an almost astronomical rate, in four specific ways. The first new question posed by AI is how creators will be paid for the use of their materials in training foundation models and applications such as ChatGPT and search engines. The U.S. Copyright Office has launched an inquiry into these issues, to assess whether copyright laws need to be updated in response to AI. The IAC – one of the world’s largest internet holding companies and home to digital publishers such as DotDash Meredith – recently warned in its comment to the Copyright Office that if generative AI firms don’t pay publishers for copyrighted content, the technology will undercut not only the news media industry, but all kinds of other web publications that deliver reliable and safe information. A second new question posed by AI is whether it can be used to create art that until now has required human beings as producers – such as music, books, news, and films. For writers, this threat is so tangible that prohibiting the indiscriminate use of AI-generated text in screenwriting was a key demand during the five-month strike led this year by the Writers Guild of America, which successfully secured the guarantees it demanded. As the Open Markets Institute put it in a letter to the U.S. Copyright office: “Enforcing copyright laws and requiring companies to meet their legal obligations – whether that is compensating rights holders or ensuring transparency of training data – are critical in order to protect human creativity and reward the labor that goes into it.” A related set of questions arise over whether ideas and inventions generated by AI models should be granted patents, and if so, who gets the credit. These concerns are not just hypothetical. An analysis by the Washington Post of a major data set used by Google and Meta’s main LLMs found that the biggest single category of websites were patent, business, and industrial sites including Kickstarter and Patreon, raising concerns that the technology may copy businesses’ and creators’ original ideas in suggestions to users. Granting patent rights to AI models poses a wide variety of risks to the entire system of intellectual copyright. One potential risk is simply empowering large corporations to further reinforce their dominance. For example, a pharmaceutical corporation that owned the largest datasets on chemical structures and prescriptions could use AI to mass-generate patents for potential new drug compounds, driving market concentration and excluding rivals. Finally, generative AI is enabling dominant retail platforms like Amazon and music streaming services like Spotify to host and promote AI-generated books, music, and similar products. Writers are reporting that Amazon is recommending AI-generated rip-offs of their own published books on its marketplace. Meanwhile, the e-commerce giant refuses to disclose how many of these bogus publications it prevents from being published or how many it takes down. Spotify not only generates revenues from AI-generated music that violates copyright but hosts an undisclosed number of bots that act as listeners of both AI-generated song rip-offs and real artists – effectively reducing royalties for the latter.