FTC Under Fire for Anti-Competitive Stance on AI and Copyright
The Federal Trade Commission (FTC) is facing backlash for its stance on artificial intelligence (AI) and copyright, with critics arguing that its position is both anti-competitive and misguided. Last year, the FTC issued a comment to the US Copyright Office suggesting that fair use, a crucial aspect of copyright law that promotes competition, could actually be anticompetitive and result in unfair competition.
Experts in copyright law, including Pam Samuelson, Chris Sprigman, and Matthew Sag, condemned the FTC’s comments, highlighting the importance of fair use in enabling greater competition. They stressed that if AI systems were required to obtain licenses for all the data they train on, it would limit innovation to only the largest tech companies with the financial means to acquire such licenses. This, in turn, would stifle competition and restrict access to AI technologies.
Expressing concern over the FTC’s suggestion that AI training might violate Section 5 by diminishing the value of creators’ existing or future works, the experts argued that competition naturally reduces returns for producers, including those in creative industries. They asserted that AI agents producing outputs that are not substantially similar to any copyrighted work on which they were trained are engaging in lawful competition. Additionally, the experts warned against the FTC layering the threat of Section 5 liability on top of remedies already available under copyright law.
Despite the criticism, the FTC has seemingly doubled down on its position. Last month, the commission published a staff report on AI and Creative Fields based on a roundtable discussion featuring a panel predominantly representing the creative industries. Critics argue that the panel’s one-sided view, which claimed that training AI on their works constituted infringement, lacks court validation and would be detrimental to creativity if upheld.
Critics further question why the FTC endorses these perspectives without challenging their anti-competitive nature. The commission supports the untested idea that all training data must be licensed, which they argue would further consolidate the power of large AI companies. Moreover, the FTC expresses concern over style mimicry, despite it being a fundamental aspect of creative learning and individual style development.
While the report eventually concedes that many of these issues fall beyond the jurisdiction of the FTC, critics argue that the commission’s one-sided approach, explicit endorsements of anti-competitive copyright monopolies, and the concentration of wealth and power contradict its mission to promote competition. These critics yearn for a time when the FTC recognized the anti-competitive nature of current copyright and patent laws.
In conclusion, the FTC’s stance on AI and copyright continues to attract criticism due to its anti-competitive implications and departure from established principles of fair use. The commission’s endorsement of unproven theories and lack of pushback against anti-competitive perspectives in the creative industries have sparked concerns about the concentration of wealth and power. As the debate around AI and copyright evolves, it remains to be seen how the FTC will navigate the delicate balance between competition and innovation in these fields.
