In his capacity as a Columnist for California Sports Lawyer®, Founder Jeremy Evans has written a column about the future of ChatGPT and artificial intelligence in light of a lawsuit filed by book authors against OpenAI for copyright infringement.
You can read the full column below.
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In 2015, the United States Court of Appeals for the Second Circuit confirmed a lower court decision in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), which held that Google would not be liable for copyright infringement for its Google Books project and would be excused under the fair use doctrine citing 17 U.S.C. § 107. The Supreme Court of the United States denied a petition to hear the case. The function of Google Books was and is to essentially copy full text of copyrighted books to create digitally consumable smaller versions of the works so that it would appear when searched via Google web search. Google Search has the same function but for essentially every available piece of information in the world and history. ChatGPT has the same function (e.g., to collect information), except that there is a digital brain or artificial intelligence using the information to form something else at the direction of the user.
In the Authors case, the court held that copyright-protected works could be used in a non-infringing manner under fair use where the new work is transformative, is limited to a specific purpose, did not provide for a significant market substitute (e.g., people no longer buying books), and where the infringing party’s (e.g., Google) commercial nature and profit motivation justified exercising the fair doctrine. At this point in history, nearly all consumers benefit from Google Books and Google Search when looking for information, conducting research, and for other business and personal services and reasons. Often when having casual conversations with friends or colleagues, someone might be heard saying in response to a question, “Google it.” The question going forward will be whether ChatGPT and artificial intelligence will be treated the same as Google.
Indeed it was a collection of authors that filed suit in the aforementioned case, and authors have filed suit again now against ChapGPT owners OpenAI and Microsoft alleging “its unauthorized collection of information (e.g., books) across the web to train its artificial intelligence chatbot” to create new works based on copyrighted material. In the past, the U.S. Supreme Court has held, supporting Section 230 of the 1996 Communications Decency Act, that platforms that collect and display information cannot generally be liable for user activity, which applies to internet search engines like Google and social media platforms. Fair use protection also extends to code used from Oracle’s operating system in Android phones, where the Court held that if Google were to be found liable it would create, quoting Justice Breyer, “a lock limiting the future creativity of new programs. Oracle alone would hold the key.”
If the court uses similar logic, an argument for OpenAI would be that ChapGPT is only the newer or updated version of Google. ChapGPT is taking information to create something new, drive creativity, and ingenuity, and store it, but not display original copyrighted or copyrightable work. Maybe that argument is a stretch. However, Google also uses artificial intelligence and computer programming to collect, organize, summarize, and host information in a limited capacity to aid the search function. The difference, and it is an important difference, is that ChapGPT is using all of the same if not more copyrighted information and really all available information as inputs to train an artificial intelligence computer that can be utilized by a user to create new works, but not display the original works in any manner.
On the one hand, ChatGPT is unlikely to be seen or treated as a platform like Google or Facebook or in violation of displaying copyrighted information since that is not its purpose or effect (to display information, but rather to collect existing information in order to create new information and things). However, ChatGPT is collecting copyrighted information without a license. Nonetheless, ChatGPT is also doing what most humans do on a daily basis, which is to say that a human is a sum of all their experiences, inputs, and information. When a human creates, they do so from their brain recollecting on talent, skills, experiences, inputs, education, and memory, which may include copyrighted sources. The difference, and again this is important one, is that ChatGPT is utilizing an artificial intelligence like brain of “all humans” without memory loss to assist the computer and humans in developing ideas, works, and things.
Will the U.S. Supreme Court see ChatGPT as analogous to Google? Namely, that a halt, regulation, or cancellation of ChapGPT might diminish versus improve the human condition and ingenuity or deprive innovation. Or is ChatGPT and artificial intelligence something completely different that has opened pandoras proverbial box? It is undeniable that ChapGPT’s new works are transformative because it creates an entirely new work. ChatGPT’s purpose is far ranging and not limited as is it collects everything to create anything—then again is its purpose just to help create? Will the new work replace underlying copyrighted works? ChatGPT is also free for all to use. Indeed, the company’s founder wanted the code to be free and displayed openly for all to benefit.
That above questions are all quintessential to determining the future use of artificial intelligence. Since ChatGPT is free there is no subscription fee, yet, that would help pay for such licenses to use copyrighted materials. Is ChatGPT the newer version or Google? Or is ChatGPT the beginnings of “Skynet” from Terminator? The questions for consideration are both economic and moral and are in the hands of the court, inventors, people, and businesses.
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About Jeremy M. Evans:
Jeremy M. Evans is the Chief Entrepreneur Officer, Founder & Managing Attorney at California Sports Lawyer®, representing entertainment, media, and sports clients in contractual, intellectual property, and dealmaking matters. Evans is an award-winning attorney and industry leader based in Los Angeles and Newport Beach, California. He can be reached at Jeremy@CSLlegal.com. www.CSLlegal.com.
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