The plan clogs the court with a treadmill of litigation

3. GAI Copyright Litigation Is Expensive, Complex, and Unsustainable

As shown by the general overview of GAI in Part I, GAI models are complex and diverse in terms of techniques and approaches. These models often lack transparency, either due to their inherently opaque technical nature or because the law limits access to them, making the model a black box.131

If one considers this technical complexity of AI, and add to the mix:

a) the complexities of copyright law (considering how contextual and fact intensive it is);

b) the particularities of copyright litigation (considering how expensive and long the process can be, with uncertain outcomes, particularly when related to technology);132

c) and moreover, the atomized nature of the myriad of individual authors, works and data that go into a training dataset;

one can’t help but conclude that copyright litigation might not be an optimal solution. What would await artists is a “litigation treadmill” of sorts. A myriad of artists from all over the world and different disciplines would potentially have to litigate against multiple GAI developers, in a context where technology is dynamic and rapidly evolving. Imagine having to identify your works in each GAI model and sue each company only to discover after lengthy trials, that there is a sprout of new models out there using your works, and that you will have to sue again.

What’s more, as has happened before in the history of copyright and technology litigation,133 the outcome of a case could potentially inspire developers to create technical workarounds to circumvent the latest verdict, forcing artists to start the litigation game all over again.

There is also a pragmatic argument to consider: AI companies will fight to protect their investment in their product, and, by these companies own accounts, these models cannot be useful without including copyrighted content. As OpenAI clearly stated in its submission to the House of Lords Communications and Digital Select Committee:

Because copyright today covers virtually every sort of human expression—including blog posts, photographs, forum posts, scraps of software code, and government documents—it would be impossible to train today’s leading AI models without using copyrighted materials. Limiting training data to public domain books and drawings created more than a century ago might yield an interesting experiment, but would not provide AI systems that meet the needs of today’s citizens.134

Given the substantial financial stakes involved,135 Big AI will fight fiercely in court to protect its investment. Like Big Tech, Big AI has considerable resources, so they are well-equipped to outspend most plaintiffs in legal disputes and sustain lengthy suits in court.