Will Ai Destroy the Dmca Copyright Compromise?

• Publication year: 2024
• Citation: Vol. 7 No. 4

[Page 289]

William S. Morriss ^*

In this article, the author considers the impact of artificial intelligence on the Digital Millennium Copyright Act.

In the 1990s, as today, the internet ran on content, which meant that it both had, and was, a problem. It had a problem in that the possibility of being held liable for copyright infringement threatened to deter people who might otherwise provide the very services necessary for the internet to operate. ¹ It was also a problem in that the internet provided a hitherto unknown and, from a copyright perspective, potentially apocalyptic ability for members of the general public to make and distribute unlimited digital copies of creative works. ² For the internet to develop into the form we know today, driven in no small part by user-generated content, these problems needed to be resolved in a way that respected the rights of artists and authors while allowing for continued investment in, and expansion of, web technology.

Ultimately, the internet's content problem was resolved by the Digital Millennium Copyright Act (DMCA), which aligned the incentives of service providers and copyright holders through a safe harbor, notice and takedown framework. In effect, the DMCA established a mechanism under which companies that ran the technology that ran the internet couldn't be held liable for infringing user content if (1) they were not aware that the content was infringing, and if (2) they removed or disabled access to the infringing content upon being made aware of its existence. ³

While there have been some hiccups along the way, this legal framework ultimately led to our current system, in which rights-holders can control their content by informing the appropriate service providers when infringement is detected, and service providers can have legal certainty and leeway to innovate so long as they remove infringing materials they are made aware of.

[Page 290]

AI and the Limits of Existing Copyright Laws

Artificial intelligence (AI) today faces a content situation similar to that of the internet in the 1990s. Like the 1990s internet, today's AI technology requires content to function. For example, ChatGPT was trained using a corpus of about 300 billion words, and the MidJourney and DALL-E image-generation apps were trained on a data set of about six billion image-text pairs. ⁴

Similarly, like the internet in the 1990s, today's AI technology is seen as posing an almost existential threat to artists and other content...