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California legislators have begun debating a bill (A.B. 412) +that would require AI developers to track and disclose every registered +copyrighted work used in AI training. At first glance, this might sound +like a reasonable step toward transparency. But it’s an impossible +standard that could crush small AI startups and developers while giving +big tech firms even more power.
+A Burden That Small Developers Can’t Bear
+The AI landscape is in danger of being dominated by large +companies with deep pockets. These big names are in the news almost +daily. But they’re far from the only ones – there are dozens of AI companies with fewer than 10 employees trying to build something new in a particular niche.
+This bill demands that creators of any AI model–even a
+ two-person company or a hobbyist tinkering with a small software build–
+ identify copyrighted materials used in training. That requirement
+ will be incredibly onerous, even if limited just to works registered
+with the U.S. Copyright Office. The registration system is a cumbersome
+beast at best–neither machine-readable nor accessible, it’s more like a
+card catalog than a database–that doesn’t offer information sufficient
+to identify all authors of a work, much less help developers to reliably match works in a training set to works in the system.
Even for major tech companies, meeting these new +obligations would be a daunting task. For a small startup, +throwing on such an impossible requirement could be a death sentence. If + A.B. 412 becomes law, these smaller players will be forced to devote +scarce resources to an unworkable compliance regime instead of focusing +on development and innovation. The risk of lawsuits—potentially from +copyright trolls—would discourage new startups from even attempting to +enter the field.
+A.I. Training Is Like Reading And It’s Very Likely Fair Use
+A.B. 412 starts from a premise that’s both untrue and harmful +to the public interest: that reading, scraping or searching of open web +content shouldn’t be allowed without payment. In reality, courts should, + and we believe will, find that the great majority of this activity is +fair use.
+It’s now bedrock internet law principle that some forms of +copying content online are transformative, and thus legal fair use. That + includes reproducing thumbnail images for image search, or snippets of text to search books.
+The U.S. copyright system is meant to balance innovation with +creator rights, and courts are still working through how copyright +applies to AI training. In most of the AI cases, courts have yet to consider— +let alone decide—how fair use applies. A.B. 412 jumps the gun, +preempting this process and imposing a vague, overly broad standard that + will do more harm than good.
+Importantly, those key court cases are all federal. The U.S. +Constitution makes it clear that copyright is governed by federal law, +and A.B. 412 improperly attempts to impose state-level copyright +regulations on an issue still in flux.
+A.B. 412 Is A Gift to Big Tech
+The irony of A.B. 412 is that it won’t stop AI development—it +will simply consolidate it in the hands of the largest corporations. Big + tech firms already have the resources to navigate complex legal and +regulatory environments, and they can afford to comply (or at least +appear to comply) with A.B. 412’s burdensome requirements. Small +developers, on the other hand, will either be forced out of the market +or driven into partnerships where they lose their independence. The +result will be less competition, fewer innovations, and a tech landscape + even more dominated by a handful of massive companies.
+If lawmakers are able to iron out some of the practical +problems with A.B. 412 and pass some version of it, they may be able to +force programmers to research–and effectively, pay off–copyright owners +before they even write a line of code. If that’s the outcome in +California, Big Tech will not despair. They’ll celebrate. Only a few +companies own large content libraries or can afford to license enough +material to build a deep learning model. The possibilities for startups +and small programmers will be so meager, and competition will be so +limited, that profits for big incumbent companies will be locked in for a + generation.
+If you are a California resident and want to speak out about A.B. 412, you can find and contact your legislators through this website.
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