The Antitrust–Copyright Interface in the Age of Generative Artificial Intelligence

Abstract

The U.S. government's antitrust actions against Big Tech have recently surged in response to the growing dominance of Amazon, Apple, Google, Meta, and Microsoft. In fall 2023, the Federal Trade Commission filed a controversial submission in response to the U.S. Copyright Office's request for comments on artificial intelligence (AI) and copyright. The agency's comment hinted at its eagerness to fully deploy its enforcement powers in the AI sector, including targeting AI developers that have made unauthorized use of copyrighted works to train their systems.

This article examines the changing interface of antitrust and copyright law in the age of generative AI. It argues that this interface now faces new complications in two directions. Technologically, the structural elements antitrust law aims to regulate are key to the success of AI developers. Politically, antitrust law is now confronted with an ideological shift from the once dominating Chicago School to the Neo-Brandeisian School. The article then highlights the oft-overlooked copyright's competition policy. It identifies several built-in procompetitive safeguards, such as fair use, the idea-expression dichotomy, the first sale doctrine, compulsory licenses, and the copyright misuse doctrine.

The second half of this article makes the case against antitrust intervention at the nascent stage of AI development. It discusses how such intervention could stifle the growth of the AI sector, change longstanding antitrust principles, upset copyright's internal balance and generate unintended global consequences. The article concludes with a five-pronged strategy for reconfiguring the antitrust–copyright interface and reducing the tensions between antitrust and copyright law.