AI, the Copyright Board and the future of Copyright Enforcement [Chris Castle]

Big changes are coming for copyright enforcement and the Copyright Royalty Board. Find out what these updates mean for creators and the future of digital content.

AI and the future of Copyright Enforcement

Op-ed by CHRIS CASTLE via Music Tech Policy

There are some inherent problems with the way copyright law is established and enforced in the United States. A recent law review article sums it up:

While the history of copyright administration dates to the passage of the first Copyright Act in 1790, copyright administration remained uncontroversial for nearly two centuries, when it mainly entailed the registration and recordation of copyrights. This kind of administration was primarily ministerial, and lacked the kind of policymaking discretion enjoyed by the agencies that arose during the New Deal. 

The Copyright Act of 1976 (“1976 Act”), though, established a complex compulsory license regime that governed mechanical recordings of musical works, public performances via coin-operated devices (e.g., jukeboxes), and cable retransmissions of audiovisual works. [This complexity was vastly expanded in an unprecedented land grab by Big Tech in Title I of the Music Modernization Act, for which publishers and songwriters curiously rolled over and displayed their bellies.]. In the ensuing decades, the 1976 Act was revised to add compulsory licenses for satellite television retransmissions and public performances of sound recordings via digital media. Administering these provisions required collecting and distributing royalties owed under these schemes—work that was important, but entailed no exercise of judgment or policymaking expertise. 

And this is what we have today–the primarily ministerial Copyright Office is charged with overseeing the Mechanical Licensing Collective, a role it is unsuited for in the current configuration.

This weak role for the Office has seeped into the Copyright Act itself. Almost all remedies in the Copyright Act require private action by copyright owners, which seems to assume that all copyright owners can afford to enforce their rights. That is, of course, naive and actually downright cruel. What do songwriters pay taxes for? Why can songwriters or recording artists call 911 when their car is being stolen but not when their life’s work is being stolen?

Elon Musk is actually a perfect candidate to help the Copyright Office define itself in the age of AI. However you feel about Elon Musk, I think it is undeniable that he has about as good a perch on watching the development of OpenAI and AI in general as it exists today. During his interview with Andrew Ross Sorkin at the DealBook Summit (around 56), Mr. Sorkin asked him a question about copyright and AI which drew an interesting reply. And probably made Mr. Musk an expert witness.

SORKIN

Can I ask you an interesting IP issue…one of the things about training on data is the idea that these things are not being trained on peoples copyrighted information historically, that’s been the concept.

MUSK 

That’s a huge lie

SORKIN

Say that again?

MUSK

These AIs are all trained on copyrighted data, obviously.

SORKIN

So you think it’s a lie when OpenAI says…none of these guys say they are training on copyrighted data?

MUSK

That’s a lie.

SORKIN

A straight up lie.

MUSK

A straight up lie. 100%. Obviously it’s been trained on copyrighted data.

Maybe the DOGE will be interested in bringing the heat as only the government can when operating in a proper role. He’s not confused about the problem and Eric Schmidt won’t be able to lie to him. 

The Copyright Royalty Judges are also limited by what Congress has allowed for their role. While the Section 114 rate settings seem to progress fairly well, the Section 115 proceedings to set mechanical royalty rates have turned into a complete cluster. We saw some welcome progress on 115 rates when the labels did the right thing on frozen mechanicals despite the publishers lopsided settlement on physical/downloads. But Section 115 has a very long way to go on the streaming side and its impenetrable Rube Goldberg royalty rates. 

The richest corporations in the history of commerce are now showing up at the CRB with dozens of over lawyers all of whom act as if paying a fair rate to songwriters is an existential threat to their shareholders that justifies their astronomical combined billing rates. This threat extends to shareholders like Daniel Ek, Larry Page, Sergei Brin and others who hold supervoting stock derived from the Cult of the Founder’s All Seeing Eye. Those supervoting shares give them total control over Spotify and Google at least until the last dog dies so they can get even richer. So they show up to CRB with teams of lawyers with one job: screwing songwriters who they haven’t even met and probably wouldn’t let clean tables in one of the 30 restaurants at the Googleplex in Mountain View or set the heat on Sergei’s apocryphal gold plated bidet.

With that said, there’s some fundamental changes that need making on copyright administration and operations in the US that is way beyond oversight failures for the MLC’s investment policy to name one.

Will the DOGE get involved?