Generative Artificial Intelligence: When Copyright, Innovation, and Equity Collide

Abstract

As generative Artificial Intelligence (GAI) has become increasingly available, class actions against the models have exploded. Most of them are complex cases, raising multiple legal claims including copyright infringement, breach of contract, unfair competition, and tort, but in the examination of them, there has been a hyperfocus on the copyright claims.

The cases are all in fairly early stages, so no one will know which of the facts alleged by the plaintiffs or the defendants are accurate until such time that courts (or juries) make findings. If we take one thing that the plaintiffs allege to be true – that the output by AI is substantially similar to their original works – then the spotlight on copyright claims appears logical. Surface similarity, after all, is what copyright is most capable of recognizing and protecting, and it presents the simplest and cleanest path to resolution. However, if we take the defendants’ assertions as true --- that GAI has learned from other works and is generating completely new content, or that it is using works to serve a purpose distinct from what those original works were created to do --- then the history of copyright and fair use makes copyright infringement seem less promising, as GAI use appears to be transformative.

In such cases, the equitable claims raised by the plaintiffs may see greater success, standing independent of copyright where one can identify labor that is unassociated with the production of copyrighted works (or other authorized use of those works). Within the complaints, these are not always explicitly described as equitable claims, but the arguments made rest largely on the belief that the GAI creators are using others’ commercial labor to gain a financial advantage without paying for labor that is normally not obtainable without an exchange (e.g., payment). Those two elements --- taking something of others’ that is normally restricted in access and using it for personal financial benefit --- make up the prongs of an unjust enrichment case, even where no statutory definition matches the claim.

Interestingly enough, both the copyright and equitable claims seek to meet the same societal purpose, just through different paths. Both aim for a solution that encourages making creative and innovative output public by determining when and how it is appropriate for for-profit entities to use that output without payment for a commercial advantage. This article will seek to explain where copyright infringement is likely to succeed or fail in recently-brought GAI lawsuits, to illustrate why equitable claims are not wholly preempted even when there is no infringement, and to explain why recognizing both legal and equitable claims in GAI cases is in the public interest.

Keywords: copyright, fair use, transformative use, equitable claims, unjust enrichment, plagiarism