Don’t Let Recent AI Lawsuits Fool You, Users Are Still Greatly Disadvantaged in a Digital-First Ecosystem

The recent barrage of copyright lawsuits involving AI companies has revealed the staggering scale of copying undertaken to train large language models (LLMs). In the recently decided Bartz v. Anthropic case, for example, Judge William Alsup of the U.S. District Court for the Northern District of California notes that the AI firm downloaded millions of books in order to “amass a central library of ‘all the books in the world’” that it could use to develop its AI models and services.

As with the Anthropic case, the majority of these high-profile AI copyright lawsuits are being brought forward by authors and publishers who characterize the threat posed by AI as an existential one. As the Authors Guild puts it, “the market dilution caused by AI-generated works will ultimately result in a shrinking of the [writing] profession as fewer human authors will be able to sustain a living practicing their craft and inevitably shut out important, diverse voices”.

The discourse that has arisen from this framing positions tech giants in the role of user, here conflating user as understood in copyright parlance (e.g. user rights) with that of the more colloquial and derogatory “user”, someone who takes advantage of others. As users, these AI developers are portrayed as bad-faith actors, brazenly disregarding creator rights in favor of a “move fast and break things” approach.

This negatively inflected conception of AI developers as users corresponds to a broader, societal tech and AI backlash that has seen the public discourse around generative AI in particular shift towards one of disillusionment, distrust, and general pessimism.

The problem with such framing is not so much how it portrays the copying activities of tech giants, which, as the Bartz case shows, were often contingent on accessing materials from pirated databases, but how it fails to account for the disadvantages that the vast majority of users face in the modern digital marketplace.

In truth, a more apt representative for users in Canada would be the individual consumer or perhaps the cultural or educational institution, who largely purchases content legally and is increasingly limited in what they can do with their purchased materials by restrictive licensing conditions, digital rights management, and an overall erosion of ownership that has resulted from a shift away from physical formats to digital ones.

Unfortunately, the plight of the library that sees its ability to purchase perpetual access to eBooks disappear almost overnight, or the disappointment of a Netflix subscriber finding their favorite films removed from their online access is not the focus of much media attention, nor does it appear to be of interest to policymakers. Instead, the spotlight remains fixed on the threat of mass infringement enabled by digital technologies. This framing skews the balance of copyright discourse toward punishing bad-faith users, while ignoring how tech and media companies exploit similar technological advancements to restrict access and diminish the user experience.

In response, advocates for a fair and balanced copyright act must push back against the limited and oversimplified depiction of users and creators envisioned in current discussions of copyright infringement. The Billion-dollar tech company is not the average user, nor is the “starving artist” the primary beneficiary of increased copyright protection. If we continue down this current path, the discourse will remain disproportionately influenced by a shrinking cohort of powerful companies and copyright will become a tool they wield to consolidate their position as market incumbents.