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Web2 Cloud Corporations Fall Short On AI Copyright Protections
Amazon, Microsoft, and Google pledge to defend customers from IP issues, but their indemnities are narrow
As generative AI continues to take the world by storm, major corporations—including Google, Amazon, and Microsoft—that have released GAI tools are still struggling to strike a balance between offering functionality to their users and protections against copyright infringement.
In recent months there have been a number of high-profile lawsuits in which content creators have claimed that AI software has been trained on their material, without permission or royalties payments. However, this topic is fraught with complexity, since it is not always well understood how generative AI has been trained or what data is stored. Instead of images being copied and held on the cloud companies' servers, for example, certain image parameters are instead extracted for AI training, making it harder to argue that the artist was due payment.
Business customers are understandably wary of copyright lawsuits when they use GAI software, given the uncertain and evolving legal landscape and ongoing infringement cases. Amazon, Google, and Microsoft have all offered some kind of reassurance in the form of indemnity clauses that they will help defend their customers, should the need arise. Matthew Sag, a law professor at Emory University, characterizes these indemnities as "a smart bit of business", since they appear to allow companies to use their platforms without concern.
However, Brenda Leong, a partner at Luminos Law, noted that the indemnity clauses are "narrowly focused"and tightly defined, meaning they may not offer the level of protection at first assumed. Specifically, they do not cover use of third-party AI models, even if the web companies make them available through their cloud platforms.
Only software developed by the companies themselves are covered. In some cases, the corporations may even have invested in the companies whose software they offer, but these AI tools are still not included in the indemnity clauses.
This appears to be a case of web giants saying what they need to in order to attract customers, but the actual protections falling short: Little more than a marketing exercise.
Copyright: A Burning Issue For AI
There are several different sides to the copyright issues raised by the use of generative AI technologies. Creators, including high-profile names such as Game of Thrones author George R. R. Martin, have already brought lawsuits against AI companies such as OpenAI, on the grounds that their works were used without permission.
Users of GAI have also run into various problems, such as in cases where they have created works that have led to accusations of infringement. Where their artworks are similar to existing images, infringement may be upheld. If an image is not "substantially similar" to a copyrighted image, though, there should be less concern, even where the images have been trained on copyrighted artworks.
In other cases, AI artists have failed to bring infringement cases when their works have been copied. In one famous case, the US Copyright Office ruled that an award-winning AI-generated artwork, Théâtre D’opéra Spatial (below), created by Matthew Allen, could not be copyrighted because it had substantially been generated by Midjourney, and copyright law requires a human creator.
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