Techmeme Ride Home: Episode Summary Episode: (BNS) The Legality Of The AI Stuff
Release Date: April 5, 2025
Host: Brian McCullough
Guest: Rob Rosenberg, PR Principal of Telluride Legal Strategies

1. Introduction to the Legalities of AI

In this episode, host Brian McCullough delves into the complex legal landscape surrounding artificial intelligence (AI), particularly focusing on copyright issues. To shed light on these matters, McCullough interviews Rob Rosenberg, an experienced attorney with over three decades in the field and the executive Vice President General Counsel of Showtime Networks before founding Telluride Legal Strategies.

Notable Quote:

• Brian McCullough [00:05]: "We've been talking about it so much, the legality of AI around copyright and things like that, that I thought today we'd talk to an expert on these sorts of things."

2. Current State of U.S. Copyright Law

Rob Rosenberg outlines the evolving nature of copyright law in the United States, emphasizing that while certain aspects remain well-established, the rapid advancement of technology, especially AI, has introduced significant ambiguities. These uncertainties primarily stem from how new platforms and technologies interact with existing copyright frameworks.

Key Points:

• Copyright law is not entirely settled; it’s adapting to technological changes.
• Clear distinctions exist between established rights and new, technology-driven uses.
• Courts have yet to provide definitive guidance on AI’s role in copyright infringement.

Notable Quote:

• Rob Rosenberg [01:31]: "I think there's a lot unsettled at the moment... until we get some clarity from the courts, there's going to continue to be ambiguity and lawsuits."

3. AI Development vs. Copyright Holder Rights

The discussion shifts to the crux of the issue: AI developers using copyrighted works to train large language models (LLMs). Rosenberg explains that AI companies argue their use falls under "fair use," claiming that feeding copyrighted material into machines doesn't harm the market for those works. Conversely, copyright holders maintain that their exclusive rights are being infringed upon, asserting that such use deviates from established exceptions like satire or news reporting.

Notable Quotes:

• Rob Rosenberg [03:14]: "They're taking the position that the use that they're making is a fair use... it isn't harming that underlying copyright holder."
• Rob Rosenberg [04:37]: "Copyright owners are saying... I have the exclusive right to determine who uses it, who exploits it."

4. The Studio Ghibli Case and Its Implications

A significant portion of the episode examines the controversy surrounding the use of Studio Ghibli's distinctive animation style by AI platforms like OpenAI. Rosenberg highlights the legal and ethical dilemmas posed when AI-generated content mimics iconic styles without authorization.

Key Points:

• Applications that transform user photos into Studio Ghibli-style images have surged in popularity.
• Legal questions arise over whether such use infringes on Studio Ghibli's trademark and copyright.
• The balance between creative freedom and intellectual property rights is under intense scrutiny.

Notable Quotes:

• Rob Rosenberg [04:53]: "The question is, who has the rights to do this? And is what OpenAI has done here legal?"
• Rob Rosenberg [09:22]: "Between you, me and you know, the other guy, the only person who can turn your stuff into Studio Ghibli style is Studio Ghibli."

5. Transformative Use Argument by AI Companies

AI companies often defend their practices by claiming that their methods are "transformative." Rosenberg addresses this argument, questioning whether merely transforming original works through AI constitutes legitimate fair use, especially when such transformations build upon copyrighted material without explicit consent or compensation.

Key Points:

• The transformative use defense hinges on whether the new work adds new expression or meaning.
• Rosenberg is skeptical about courts accepting AI's transformative use claims without undermining copyright owners' rights.
• The analogy of replicating car designs underscores the issue of building businesses on others' creative outputs.

Notable Quotes:

• Rob Rosenberg [16:08]: "The question is just, you know, you are creating something that you wouldn't have been able to create if you didn't have access to and basically scrape the works of copyrighted owners."

6. Compensation and Licensing Models

Addressing potential remedies, Rosenberg proposes a statutory licensing framework akin to the music industry's approach. This system would allow AI developers to compensate copyright holders systematically, providing clarity and reducing litigation uncertainties.

Key Points:

• Statutory licenses could offer a standardized method for compensation.
• Such a model benefits both AI developers and copyright owners by ensuring recognition and fair remuneration.
• Implementing this requires significant legal and industry collaboration.

Notable Quotes:

• Rob Rosenberg [22:20]: "I think that is one of the smartest, most logical way to proceed... the copyright owners get the recognition and compensation that they deserve."

7. Liability and End-User Risks

The conversation explores whether end-users generating AI content face legal liabilities. Rosenberg suggests that while it might be challenging for copyright holders to target individual users effectively, systemic issues like privacy breaches remain a significant concern.

Key Points:

• Individual liability for end-users is probable but practically difficult to enforce.
• The broader systemic issues, such as privacy infringements, may present more substantial legal challenges.

Notable Quotes:

• Rob Rosenberg [23:34]: "It would be very difficult for them to go after individual users."
• Brian McCullough [34:16]: "Maybe violated somebody's privacy."

8. Future of Copyright Law in the Age of AI

Rosenberg emphasizes the necessity for copyright law to evolve alongside technological advancements. He acknowledges the challenges courts face in keeping pace with AI’s rapid development and anticipates that higher courts, including the Supreme Court, may soon deliberate on these pressing issues.

Key Points:

• The legal system is striving to adapt to the swift evolution of AI technologies.
• Anticipated court decisions could provide much-needed clarity and direction.
• The intertwining of copyright law and AI innovation requires proactive legislative and judicial responses.

Notable Quotes:

• Rob Rosenberg [28:22]: "That's exactly what we're seeing. And the fact that we have been waiting for quite a long time already for the courts to provide some answers."
• Rob Rosenberg [25:01]: "You can get to the Supreme Court very quickly... to try to resolve an issue with some degree of finality."

9. AI-Generated Works and Copyrightability

The episode addresses whether AI-generated content can be copyrighted. Rosenberg asserts that, currently, without significant human input, AI-created works do not qualify for copyright protection under U.S. law.

Key Points:

• U.S. copyright law requires a human component for authorship.
• AI is considered a tool, similar to how computers are used in traditional art forms.
• Assemblies or compilations involving AI-generated elements can be copyrighted, provided there is human creativity in their arrangement.

Notable Quotes:

• Rob Rosenberg [26:22]: "Where it is created by AI, then it is not copyrightable because there needs to be a human component to authorship."
• Rob Rosenberg [26:57]: "Is it the tool? And, you know, certainly, artists... is the computer the one that is creating these images? No, it's a tool that's being used by these artists to create."

10. Privacy Concerns in AI Development

Beyond copyright, Rosenberg highlights privacy as a looming legal challenge. With AI's capabilities to process vast amounts of personal data, stringent privacy laws are essential to protect individuals' rights and prevent misuse.

Key Points:

• Privacy laws are becoming increasingly strict worldwide.
• Cross-border data usage complicates compliance and enforcement.
• Protecting personal information, including likeness and identity, is paramount in AI applications.

Notable Quotes:

• Rob Rosenberg [32:49]: "One thing that's been out there and continues to be out there and it's going to need to be addressed is privacy."
• Rob Rosenberg [33:43]: "I mean that is the prime example... individuals have the same issue."

11. Final Thoughts and Industry Outlook

Concluding the discussion, Rosenberg urges the tech industry to proactively engage with legal experts to navigate the evolving AI landscape. He emphasizes that embracing AI responsibly is crucial for business sustainability and competitiveness.

Key Points:

• Companies must balance leveraging AI's benefits with mitigating legal risks.
• Staying informed and seeking expert guidance is essential for navigating AI’s legal challenges.
• The swift adoption of AI technologies necessitates urgent legal and ethical considerations.

Notable Quotes:

• Rob Rosenberg [34:29]: "AI is here, it's not going away... the question is, which one do you want to be?"
• Rob Rosenberg [35:48]: "There are some companies that I think a year ago had said, oh, I'm just going to sit on the sidelines and wait it out. But I don't think we're at a stage where any company could afford to do that at this point."

Conclusion

This episode of Techmeme Ride Home provides an in-depth exploration of the intricate legal issues at the intersection of AI and copyright law. With expert insights from Rob Rosenberg, listeners gain a comprehensive understanding of the current challenges, potential legal frameworks, and the critical importance of adapting both technology and legislation to safeguard creative rights in an AI-driven era.