The Electronic Frontier Foundation is pushing back against what it calls hype and speculation in the growing wave of generative AI copyright litigation. The digital rights group filed amicus briefs in two major cases, arguing that copyright law should not be rewritten to accommodate fears about new technology. The briefs target claims that would expand protections far beyond what the law has traditionally allowed.
A History of Tech Panics
The EFF points to a long pattern of doomsday predictions whenever new creative tools emerge. In 1906, composer John Phillip Sousa claimed the player piano and gramophone would destroy music composition. The fears did not come to pass. Music thrived.
The 1980s brought another panic. Rightsholders claimed VTRs were "to the American film producer and the American public as the Boston strangler is to the woman home alone." The Supreme Court declined to embrace that hyperbole. It noted the VTR was capable of non-infringing uses like time-shifting, and it warned against rewriting copyright law for new technology.
Portrait artists once feared the camera would replace the paintbrush. Instead, cameras sparked a resurgence of portraiture and led to the rise of photojournalism. New tools did not destroy art. They expanded it.
The Current Legal Battle
Generative AI has now sparked litigation in multiple cases around the US and the world. Rightsholders are asking courts to expand copyright protections based on hyperbole and speculation. Some copyright owners claim courts must abandon 300-year-old copyright principles to address the threat.
The EFF filed amicus briefs in Concord Music Group, Inc. v. Anthropic PBC and In re Mosaic LLM Litigation. The organization argues that copyright law punishes infringement, not competition. It warns against what it calls the market dilution theory, which holds that building generative AI tools cannot be fair use because the tools might encourage the proliferation of competing works.
That theory, the EFF argues, would eviscerate the fair use doctrine and other limits on copyright. Publishers would wield unchecked veto power over any expression that might compete with a work they own. Accepting such a theory would undermine copyright's constitutional purpose. Art would not get created. Ideas would never be expressed. Everyone would be worse off.
AI as a General Purpose Tool
The EFF draws a direct line between the VTR and the large language model. LLMs are general purpose tools, like the VTR was. They can be used for infringement, but they are also capable of countless non-infringing uses.
Research shows that large generative AI models are unlikely to produce infringing works. More training data reduces the influence of any individual example. The models learn patterns rather than memorizing specific works.
Stay ahead of the AI curve
The most important updates, news, and content — delivered weekly.
No spam. Unsubscribe anytime.
The EFF argues that courts should be reluctant to decide in advance what tools foster human creativity. The effects of AI will be far-reaching, disruptive, and potentially harmful for some. But distorting copyright law is not the way to address those harms.
Artists Already Using AI
The EFF points to a range of artists who are using generative AI to create new work. Nettrice Gaskins, a Boston-based artist, uses AI for Afro-futurist art. Her portrait of Octavia Butler was displayed at San Francisco Airport.
Indian artists Prateek Arora and Varun Gupta use generative AI to reimagine Western science fiction. Alex Smith, a Philadelphia-based artist, uses the tools for Afrofuturism featuring queer, plus-sized Black superheroes. Ana Miljački, a professor of architecture at MIT, used generative AI to create a non-linear documentary film on Yugoslav WWII memorials.
A research-creation project used AI-generated visual art to amplify the voices of activists in the Iran Woman Life Freedom Movement. The AI company Bronze works with musicians like Disclosure and Jai Paul to create songs that never sound the same when played back twice.
The Stakes for Copyright Law
The EFF's core argument is simple. Courts should be wary of AI hype, just as the Supreme Court was wary of VTR hype. The law has survived panics before. It can survive this one.
The organization notes that the current litigation asks courts to abandon principles that have stood for 300 years. That is a heavy request. The EFF says it should be rejected.
The briefs do not argue that AI is harmless. They acknowledge the effects will be disruptive and potentially harmful for some. But the answer is not to distort copyright law. The answer is to let the existing framework do its work.
Copyright law was designed to encourage building on existing works. Fair use and other limits are part of that design. The market dilution theory would tear that design apart.
The EFF's message to the courts is clear. Do not rewrite the law based on speculation. Do not let publishers gain veto power over expression. Do not decide in advance what tools foster human creativity. The history of technology panics shows that the doomsayers are usually wrong. The courts should remember that.