OK Computer: Reconsidering Inducement in the Age of Artificial Intelligence

DISCLAIMER: This essay was submitted on January 3rd to the Entertainment Law Initiative’s 26th Annual Entertainment Law Initiative Writing Contest. I am providing it here, with a few formatting changes for greater circulation.

AI is not, in any sense, a uniquely modern problem. Stanley Kubrick’s HAL 9000[1], Ridley Scott’s David[2], not to be confused with Steven Spielberg’s David[3], and Alex Garland’s Ava[4], are just a few of our favorite fictional artificially intelligent entities. These “Mechas,[5],” “AGI’s 6,” or “Androids[6]” represent an ethical question of Promethean proportions that humans have been wrestling with as long as we have been curious about our own “programming,” origins, and purpose. If we can set aside the terrifying implications of these questions, which might be better served by ethicists, philosophers, or spiritual advisors, we can comfortably numb ourselves to consider AI only in the realm of copyright infringement and money, money, money.

To explore here, let’s turn the clock back to the early 2000s, 2001 to be exact. Ja Rule, 3 Doors Down, Alicia Keys, Incubus, and Lifehouse were topping the charts, and the iPod was brand new[7]. However, we were still years ahead of the iTunes store, and music was still very physical, except when it wasn’t[8]. While many people stuck to traditional methods of purchasing music, a trip to the local shop or big box store, others were beginning to harness the mystifying powers of the still-novel World Wide Web for music downloads[9].  Frutiger Aero and Y2K, the design aesthetics that accompanied early tech products like the “family computer” from days of yore, perfectly encapsulate the “utopia that was promised to us” every time we “booted” up our giant desktop, or so I’m told, as I was two years old at the time[10]. So it goes. Though I didn’t live through the DIY ‘90s myself, as a child of unfettered internet access, I consider myself well-versed in vibes, and the cultural impact of the ’90s and early 2000s was the mindset of scrappy individualism, riot grrrl,[11] and sticking it to the man.[12]

Apple’s iconic “Think Different” commercial, memorialized in the 2013 biopic about Steve Jobs, features a poem so relevant that I will devote character space to providing it in whole:

Here's to the crazy ones, the misfits, the rebels, the troublemakers, the round pegs in the square holes ... the ones who see things differently -- they're not fond of rules, and they have no respect for the status quo. ... You can quote them, disagree with them, glorify or vilify them, but the only thing you can't do is ignore them because they change things. ... They push the human race forward, and while some may see them as the crazy ones, we see genius, because the people who are crazy enough to think that they can change the world, are the ones who do.

This snapshot provides a look into the milieu in which services/products like Napster and Grokster were cooked up.

As the Guardian once said, “the digital music revolution started with Napster – the file-sharing service dreamt up by two teenagers in 1999.”[13] In fact, to tie it way back to one of my earlier references regarding the introduction of Napster, Alex Winter (yes, the one from Bill and Ted) explains, "There was no ramp up. There was no transition. It was like that famous shot from 2001: A Space Odyssey when the prehistoric monkey throws a bone in the air, and it turns into a spaceship. Napster was a ridiculous leap forward."[14] I’m not sure we watched the same 2001, but the point remains. Music and technology have always been intertwined, and as technology advances, it drives change for musicians, consumers, and the industry as a whole.[15] Oftentimes, these changes are things popular society is wholly unprepared for.[16]

I’m sure you all know very well what Napster was, but for review, it began as a file-sharing service that enables users to freely exchange MP3 files. It served as a marketplace of sorts, and it pre-dated the iTunes store.[17] Of course, the key feature distinguishing Napster from digital “stores” was the lack of payment in exchange for “goods” due to its nature of free sharing. This feature was both its crown jewel and Achilles heel. In an early case against A&M Records, Inc., a Northern California district court answered if the fair-use defense to copyright infringement applied to sharing copyrighted music through Napster in the negative.[18] However, this was just the beginning of a firestorm of cases attempting to target Napster. Involving the same parties, the ninth circuit went further to penalize Napster. In determining if the owner of a software program commits secondary copyright infringement if the program’s subscribers use the program to upload and share copyrighted music, the court answered in the affirmative.[19]

The Napster decisions didn’t provide any finality over managing the issue of digital infringement. Napster's retention of control in file transactions via its server led to it being deemed illegal, as it failed to utilize its server authority to prevent the sharing of copyrighted material. However, like whack-a-mole, new peer-to-peer file-sharing services began popping up in ways they believed fit just inside the perimeters of the law set out in the Napster cases. Grokster, Morpheus, and Kazaa, so-called “second-generation peer-to-peer file-sharing programs,” allowed users to trade files directly with one another without these transactions passing through a centralized server, possibly circumventing the Napster issue.[20] Since the files never passed through their server, Grokster wanted to take advantage of the "Sony safe-harbor" principle set by the Supreme Court in Sony v. Universal Studios 464 U.S. 417 (1984).[21] The rule provided that "...the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial non-infringing uses."[22] By this logic, when they found themselves in the U.S. Supreme Court over the issue, Grokster argued that proof of reasonable, actual, or potential, non-infringing use of their software was sufficient to fulfill the "substantiality" requirement. The Recording Industry Association of America (RIAA) and Motion Picture Association (MPAA) argued that the Sony safe harbor requires proof that the non-infringing use is the primary use; an incidental non-infringing use is not enough.[23]

That said, it wasn’t exactly the day peer-to-peer file-sharing died. For ten(ish) years, living on its own and moss growing fat on a rolling stone, LimeWire kept the levee from being dry. In a 2005 New York Times report, representatives from LimeWire LLC said they were considering ceasing its distribution of LimeWire because the outcome of MGM v. Grokster "handed a tool to judges that they can declare inducement whenever they want to.”[24] But do you believe in rock 'n' roll? Can music save your mortal soul?[25] Nevertheless, LimeWire persisted, until Arista Records got their day in court in 2010, walking away with a decision in the record company’s favor.[26] If you make a program that induces infringement, hungry plaintiffs are waiting. . . Time after time. The spirit of (pirate) radio, alive and well throughout the DIY web era in the form of peer-to-peer platforms, has found a new manifestation in contemporary Artificial Intelligence.

Like a deadhead sticker on a Cadillac, the original outsiders tend to wane into the old guard, but a new guard emerges. The new age of digital rebels can best be understood by the maxim “show me a 10 foot wall and I'll show you a 12 foot ladder," popularized by the site 12ft., created by Thomas Millar, which allows users to hop paywalls to access their desired content.[27] It’s cyberpunk digital “Marxism” that seems to profoundly misunderstand the entire purpose of the copyright system, which I would say is to compensate artists in order to promote the arts.[28] And this is all before the AI comes in, so how does it figure in? “Open the pod bay doors, HAL.”[29]

Much like something off the slab of Frank-N-Furter’s lab, the creative offspring of Generative AI is infamously hybrid and alien.[30] Although nobody outside the cognoscenti knows what goes into the black box of training data provided to AI systems, it's presumed to be chock full of copyrighted material. Some theorists believe that using copyrighted materials to train AI models may qualify as fair use.[31]  If we can set this question aside, let’s examine what I consider to be the more important takeaway: the fact that there may finally be a magic bullet to pierce through the AI revolution. It rhymes with “seducing” . . .  That’s right, our old friend inducing infringement, revived from the dead!

A contemporary of the peer-to-peer networks, the irreverent off-Broadway classic Avenue Q, an adults-only parody of Sesame Street, debuted in 2003.[32] In a song with a title I can’t write here, Kate, a puppet character who’s a kindergarten teacher, sings about lesson planning. “Finally, I get to teach a whole lesson all by myself! And I'm gonna teach something relevant. Something modern, the internet!” she muses.[33] She gets through only one more sentence before being interrupted by another puppet, Trekkie Monster, who sings, “Why do you think the net was born? For [something that rhymes with born, repeated x3]!”[34] And it’s no secret that the internet was born with unclean hands.

Basically, the Internet was first created to facilitate military communications.[35] However, a competitive theory believes that beyond its rudimentary wartime purpose, the reason the internet as we know it today ever became mainstream is due to humanity’s, err. . .  “baser” desires.[36]  The internet’s role in revolutionizing the landscape of adult entertainment demonstrates that where there’s a will, there’s a way, and where there’s a way, there’s a market. This theory maps right onto the new world of Generative AI. If the internet is for something that rhymes with “born,” despite having other uses, generative AI is for copyright infringement.  Essentially, down the rabbit hole, all copyrighted material looks like a curious green bottle with a tag reading “infringe me.”

Anyone who enjoys Pineapple Express, Sublime, the Grateful Dead, or Bob Marley has at one point sat around a carpet with friends, asking one another deep questions about the universe, debating science fiction franchises, and crafting conspiracy theories about sleeper cells. One “deep” thought commonly shared in these ritualistic exchanges is some riff on “Did you know that your brain cannot imagine a color it’s never seen before? It can only understand color in terms of colors it already knows and can identify.”[37] Generative AI works similarly. It is incapable of organic thought or independent volitional creation; it merely regurgitates composite content based on what it’s been fed.[38] It’s not imagining new colors or creating new ideas; it's programmed to follow an algorithm that selects desirable responses based on prompts and its library of available materials from which to output new media.

If I read Byron, Keats, and Shelley and decide to write a poem called Ode to a Dog, heavily inspired by the Romantic movement, so long as it is original and fixed in a tangible medium of expression, it should likely be copyrightable.[39] My poem was created by studying the classics until I understood them well enough to write a piece emanating the values of the Romantic movement, drawing back to well-known poetry through selective references. The copyright may be “thin” thanks to the idea/expression dichotomy and the likelihood of scene-a-faire within the ode, but it would be my independent creation, inspired by the great poets.[40] Alternatively, if I fed a chatbot Byron, Keats, and Shelley, and it wrote “Ode to a Dog,” it would not be writing the poem based on inspiration but rather by weaving together chopped-up bits and pieces of the input poems and rearranging them into a new collage-like poem, one it would call “Ode to a Dog” based on the titles Ode on a Grecian Urn, Ode to the West Wind, and Epitaph to a Dog. The AI’s poem is advanced copy and paste; it does not have the human ability to feel. So, what does this have to do with inducing infringement? A lot, so stay with me; it’s all going to tie back.

Since AI doesn’t know what it’s creating because, unlike a human, it’s not generating output based on inspiration or volition but instead based on algorithmic programming, it can be easily manipulated into creating unsavory or infringing outputs. In the 90s, bootleg images of Looney Tunes characters, SpongeBob, and the Simpsons stylized as stereotypical gangsters or pimps or drawn with exaggerated red eyes and cannabis paraphernalia were relatively commonplace.[41] This trend was so persistent it's actually something I recall still being around in my childhood in the early 2000s. What made the bootlegs funny was not “Haha, drugs!” or “Haha, harmful stereotypes contributing to a wealth of demeaning imagery that causes a lasting effect on the cultural psyche” but rather “Haha, what the hell is Wile E. Coyote doing in that situation?” The misappropriation of the well-known character was what made the bootlegs funny. This same principle is relied upon by today’s Generative AI.

When the Dall-e image generator was released, it completely took over social media, where users shared memes of themselves using Dall-e for copyright infringement or even creating memes in Photoshop to look like Dall-e was capable of infringement beyond its true abilities at its launch.[42] On June 4th, 2022, Twitter user @AliceAvizandum created a thread about Dall-e wherein they shared images created with the model. After achieving Twitter virality, user @Calavera145 shared images generated from the prompt "Coumbo for the Nintendo 64," with the post gaining over 5,200 retweets and 36,800 likes.[43] By June 7th, 2022, a Twitter account called “Weird Dall-E Generations” became active, gaining over 172,000 followers in three days, and the subreddit /r/weirddalle gained over 10,000 followers in two days.[44]

Some popular Dall-e creations that went viral included courtroom sketches of Paddington Bear, Spock, and Lara Croft, trail cam footage of Homer Simpson, Tifa Lockheart eating a hamburger, Elmo and Shrek with an AK-47, Pokeman at Normandy D-Day, and the Hindenburg Disaster in Fortnite.[45] No, I am seriously not making any of these up, and these are just the ones “appropriate” enough to include. People were going buck wild, watching the AI create funny, absurd, or downright abominable masterpieces, and it all happened at the push of a button. Harmful, violent imagery containing familiar children’s characters has always existed on the internet, on “chan” or “green text” sites, DeviantArt, or adult entertainment sites. Still, the images were always created by someone who knew they were doing something “wrong.”[46] Dall-e does the creating for you; all you have to do is ask it.

Now, let’s take it back to Justice Souter’s inducement rule in Grokster, "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."[47] Everybody who’s anybody on the internet knows that’s what it’s best at doing. [48] And no, I won’t be able to find an academic citation for that point, but you’ll have to take my word for it as a member of Gen-Z. There are certainly people asking Dall-e to generate images of “God” or “true happiness” or other interesting conceptual pieces, just as there were people in 2003 using CD-burning technology within the bounds of Copyright law. However, we know way more people are using Dall-e to make things like “Peter Griffin playing Pickleball with Mickey Mouse,” just like there were way more people using CD-burning technology to wrongfully distribute music.

I will not rest my entire case on Dall-e; its terms of use are changing, and of course, it creates images, not music. However, it illustrates the argument I am trying to make quite simply: what makes all forms of generative AI currently available to the public so enticing and revolutionary is NOT that they represent the Promethean power of man playing God, but rather that they are SO good at copyright infringement and copyright infringement is social/commercial capital on the internet. Whether teens are relying on ChatGPT to spit out their essays on To Kill a Mockingbird, college students are asking generative AIs to create an Ice Spice cover of their school’s fight song, or young professionals are asking Dall-E to generate marketing materials of their product with Disney princesses, every one of these commonplace uses of Generative AI relies on copyright infringement. These technologies are well known for their ability to create images, sounds, videos, or text-based responses in the style of others, and that is precisely what people want to use them for! If that’s not inducement, I’ll eat my hat.

The ancient Greeks were the first to warn us that if you steal fire from the Gods, nothing good shall follow.[49] Generative AI is of equal importance to the modern human. It will undoubtedly change our future as mankind, and it must be handled with extreme caution. It may have incredible, innovative, impactful uses to help the global community overcome current predicaments. Still, such uses will not account for all or most of what the technology will be used for. . . The current generative AIs available to the public are glorified infringement machines, inducing wrongful use and harming artists, authors, and musicians. If the copyright system and the theory of labor, and the value of the promotion of the arts upon which it was built mean anything to us at all as Americans, we must find a way to preserve the system and inhibit AI's infringing capabilities while the power is still in our hands.

Footnotes

[1] 2001: A Space Odyssey (Metro-Goldwyn-Mayer 1968)

[2] Prometheus (20th Century Studios 2012)

[3] A.I. Artificial Intelligence (Warner Bros. 2001)

[4]Ex Machina (A24 2014).

[5] A.I. Artificial Intelligence (Warner Bros. 2001)

[6] Prometheus (20th Century Studios 2012)

[7] Billboard Year-End Hot 100 singles of 2001, https://en.wikipedia.org/wiki/Billboard_Year-End_Hot_100_singles_of_2001;    

[8] The music lives on, https://www.apple.com/newsroom/2022/05/the-music-lives-on/#:~:text=The%20original%20iPod%2C%20introduced%20on,design%20at%20just%203.6%20ounces  

[9] Physical CD shipments in the United States from 1999 to 2022, https://www.statista.com/statistics/186772/album-shipments-in-the-us-music-industry-since-1999/#:~:text=Physical%20music%20sales,the%201990s%20and%20early%202000s

[10] Harvey Miller, @_harveym_ TikTok on niche web aesthetics of the 2000s

[11] Riot grrrl, https://en.wikipedia.org/wiki/Riot_grrrl#:~:text=Riot%20grrrl%20is%20an%20underground,%2C%20punk%20music%2C%20and%20politics

[12] How Anarchy Works, PAULINA BORSOOK https://www.wired.com/1995/10/ietf/

[13] Napster: the day the music was set free, Tom Lamont, https://www.theguardian.com/music/2013/feb/24/napster-music-free-file-sharing

[14] Id.

[15] From Analog to Digital: The Evolution of Music through Technology, Kyle Humphrey, https://www.linkedin.com/pulse/from-analog-digital-evolution-music-through-kyle-humphrey/  

[16] Supra n. 14

[17] Mark Harris, A Short History of Napster, https://www.lifewire.com/history-of-napster-2438592

[18] A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (2000)

[19] A&M Records v. Napster, Inc. 239 F.3d 1004 (2001)

[20] Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913 (2005)

 [21] Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913 (2005), https://www.quimbee.com/cases/metro-goldwyn-mayer-studios-inc-v-grokster-ltd

[22] Sony 464 U.S. at 442

[23] Supra n. 22

[24] Tom Zeller, Wither”, The New York Times. (June 28, 2005). 

[25] Don McLean, American Pie (1971) Songs of Universal Inc., Benny Bird Co. Inc.

[26] Arista Records LLC v. Lime Group LLC  784 F. Supp. 2d 398 (2011)

[27] 12ft, Wikipedia, https://en.wikipedia.org/wiki/12ft#:~:text=The%20website's%20name%20is%20based,crawler%20when%20requesting%20a%20webpage.

[28] Copyright Alliance, What Is The Purpose of Copyright Law, https://copyrightalliance.org/education/copyright-law-explained/copyright-basics/purpose-of-copyright/#:~:text=The%20Framers%20believed%20that%20securing,and%20to%20make%20those%20works

[29] Supra n. 1

[30] The Rocky Horror Picture Show (20th Century Studios 1975)

[31]Cala Coffman, Does the Use of Copyrighted Works to Train AI Qualify as a Fair Use?,  https://copyrightalliance.org/copyrighted-works-training-ai-fair-use/

[32] Avenue Q Broadway Original Cast, https://www.broadwayworld.com/shows/Avenue-Q-3321/cast

[33] Stephanie D’Abruzzo & Rick Lyon, https://genius.com/Stephanie-dabruzzo-and-rick-lyon-the-internet-is-for-porn-lyrics  

[34] Id.

[35] Vint Cerf ,A Brief History of the Internet & Related Networks, https://www.internetsociety.org/internet/history-internet/brief-history-internet-related-networks/

[36] Julie Ruvolo, “How Much of the Internet is Actually for Porn”, https://www.forbes.com/sites/julieruvolo/2011/09/07/how-much-of-the-internet-is-actually-for-porn/?sh=494d44a15d16

[37] Impossible color, https://en.wikipedia.org/wiki/Impossible_color

[38] George Lawton, What is generative AI? Everything you need to know, https://www.techtarget.com/searchenterpriseai/definition/generative-AI

[39] University of Michigan Library Research Guides, Copyright Basics, https://guides.lib.umich.edu/copyrightbasics/copyrightability

[40] Steve Vondran, WHAT IS "THIN" COPYRIGHT?, https://www.vondranlegal.com/what-is-thin-copyright

[41] Brian Josephs, Lord Forgive Me: The Life of Urban Looney Tunes, HTTPs ; Vintage 90s Bootleg Bart Simpson Shirt Weed Bong Rip XL, https://www.ebay.com/itm/266311605814 ; 2000’s Spongebob Squarepants “Makin Moves” Bootleg, https://olshirtybastard.com/products/2000-s-spongebob-makin-moves-bootleg-xl

[42] Autumn Able, DALL-E mini / Craiyon, https://knowyourmeme.com/memes/sites/dall-e-mini-craiyon

[43] Id.

[44] Id.

[45] Id.

[46] Blyth Crawford, Florence Keen, Guillermo Suarez-Tangil, Memes, Radicalisation, and the Promotion of Violence on Chan Sites, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://nms.kcl.ac.uk/guillermo.suarez-tangil/papers/2021icwsm-memes.pdf; Jinberdeem01, Weed bart, https://www.deviantart.com/jinberdeem01/art/Weed-bart-538599853

[47] MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)

[48] Open AI, Dall-e 2, https://openai.com/dall-e-2

[49] The Editors of the Encylopedia Britannica, Prometheus, https://www.britannica.com/topic/Prometheus-Greek-god