AI Training Is Copying. Is It Infringement? | Keith Kupferschmid, CEO Copyright Alliance

Orlando (00:04.12)
Got to be.

Orlando (00:43.424)
Okay. Okay. I can hear you fine, yes. So that’s good. Okay, great. Well, we are recording, but I’ll just do a little bit of housekeeping. so number one is everything’s recording locally. So your computer will be recording the video. If there is a stutter or a stammer, or you see the the image pause for a second or whatever else. You don’t need to stop, just keep going with what you’re doing. and then basically, but what it also means, like the the the

Keith Kupferschmid (00:43.718)
you hear me okay?

Okay, all right.

Orlando (01:13.08)
Quality version is saving to your laptop. What it also means, though, is that when we’re done, we’ll have a sort of show biz goodbye where I’ll say goodbye. Thank you so much. This was great, all that kind of stuff. Do not, when I when we say goodbye, do not shut your laptop, do not close your browser. Keep that open, you know, like because if you shut that, it will not fully upload, and then we’ll have lost the the hour. so

Then the other thing is all of my notes are up here. So if I look, if you hear typing, if you see me doing things, I’m not answering emails or online shopping or anything like that. And and you haven’t, and the other thing is you haven’t said something that’s either boring or lost me. Actually, most chances are you’ve said something really interesting that makes me wanna do something, or you’ve said something so comprehensive that it’s killed my next four questions, and now I have to like go to whatever’s next. So

Keith Kupferschmid (01:55.728)
Yep, yep, I get it.

Orlando (02:09.877)
Yeah, so that’s just, you know, that’s the the thing. And then the other thing is if there’s anything we wade into that you go like, okay, I’m gonna say something. The goal is for this to be a really open chat and for you to say whatever comes to mind. You absolutely will get this edit before it goes live and have the ability to pull out anything you want. So the goal is for you to to be totally comfortable, speak absolutely candidly, and y you I will never ever

Keith Kupferschmid (02:29.948)
Yep. Okay.

Orlando (02:37.569)
Put something online. We’ve taken things down that already have 10,000 views. Like, and we’ve gone the client, the the the interviewer’s gone. I don’t like that I said that. And we’ve taken it down. No problem. You you should that that’s just don’t let that be a concern. great. and then last two pieces. Sure. Sure. Okay, all right, cool.

Keith Kupferschmid (02:41.435)
Yeah.

Keith Kupferschmid (02:51.28)
Yeah. Okay. Okay. So give me a second. Give me, give me one second because I opened the door to get the headphones. I want to shut it again so there’s no outside noise.

Keith Kupferschmid (03:15.632)
All right.

Orlando (03:16.125)
can I just just check on the the sort of phrenelic pronunciation of your name? Cup for Schmid.

Keith Kupferschmid (03:22.364)
Yeah, you do not have to pronounce the F so it’s Cooper Schmidt. Yeah, like almost like C O O P don’t pronounce the F and make like there’s a T at the end almost like a soft D.

Orlando (03:27.053)
Cooper Schmidt. K U.

Orlando (03:36.429)
Cooper Schmidt. Awesome. And your full

Keith Kupferschmid (03:37.52)
Yes, but then but then if you were to speak to my relatives, they would all pronounce it differently anyway, so it’s no big deal either way Yeah

Orlando (03:41.837)
Okay, good. then I’m in good company. and one other question is what is your the the title you want me to to reference?

Keith Kupferschmid (03:51.909)
You could say CEO of the Copyright Alliance.

Orlando (04:02.199)
Great. Okay, terrific. all right, well I’m gonna get started if you’re ready.

Keith Kupferschmid (04:06.204)
All right. All right. Yeah. First of all, let me just start by apologizing for the technical difficulties, but I’m glad we were able to get it going. Okay.

Orlando (04:13.879)
Don’t be silly. Don’t be silly. That’s why we booked the extra little bit of time on the on on the things, so we can we can account for that. Cause it’s not easy this. but thank you, Keith Cupperschmidt. I’m gonna start again. Keith Cupperschmidt, thank you so much for coming. You’re the CEO of the Copyright Alliance. I feel like that is an increasingly important role to have. and I’m so excited to dig into this with you. Thanks for being on the podcast.

Keith Kupferschmid (04:18.448)
Yeah, yeah. Yeah. Yep. Yeah. Yes.

Keith Kupferschmid (04:42.0)
Well, thank you for having me. I’m looking forward to it.

Orlando (04:45.249)
Fantastic. Yeah, I’m looking forward to digging into this with you. Cause, you know, people are throwing around the term copyright all over the place and fair use and this, that, and the other thing. And so I’m really keen to talk to you about the issues at play in modern in a lot of the modern technologies we’re seeing and you know IP and artist rights and things like that. You know, and we have viewers across film, television, music for someone outside the copyright world or the IP world.

What do they need to understand about what the copyright alliance is and who you represent?

Keith Kupferschmid (05:17.702)
Yeah, so our mission ultimately is to protect individual creators and copyright owners and to make sure that the public and creators and copyright owners all understand the value and importance of copyright law. Copyright law for many hundreds of years, honestly, has served to protect and incentivize creativity. And it continues to do so. And every once in a while, it

is subject to some type of technology that challenges the copyright law, whether that’s the photocopier, maybe, or maybe it’s the internet, and most recently, artificial intelligence. And then we have to all sit back and go, hmm, okay, do we need to change the law? Is the law sufficient as it stands? And look at that. And so the members that I represent, whether it’s movie studios or…

record labels or book publishers or magazine and newspaper publishers or video game companies and so on and so forth as well as the Thousands of individual creators all rely on copyright law and they look to the copyright Alliance to help them in that

Orlando (06:22.603)
Mm-hmm. Yeah, I mean, you know, how’s your how is your job? I I it was so interesting that you brought up, you know, photocopiers. It feels like that’s that’s sort of what we’re still what we’re dealing with with AI, isn’t it? It’s just something that can copy and replicate ad infinitum at an you know at a at a breakneck speed. We’ve just changed the the speed of it.

Keith Kupferschmid (06:45.99)
Yeah, I mean, it’s interesting. So this year is the 50th anniversary of the 1976 Copyright Act, the same Copyright Act that’s in effect today. And what we did is we brought together what we call the founders, the people who wrote that copyright law, implemented that copyright law. We brought them together for a Zoom. And it was interesting that, you know, they brought up photocopying NAI in the same breath, sort of just like I did, and basically saying, look, each generation thinks

Orlando (07:11.479)
Yeah. Yeah.

Keith Kupferschmid (07:15.129)
this is just the biggest thing in the world, the universe. And, you know, maybe we need to change copyright law because of that. But, you know, but really it’s not. It’s another challenge.

Orlando (07:21.932)
Yeah.

Orlando (07:29.375)
Yeah, I mean I I imagine that with any new technology, does your job change a lot? Or is it just kind of like, ugh, say say I’m always in the same old business. The world around me changes, but I’m always in the same old business. Or do you go, no, AI is fundamentally different and we have to respond to it?

Keith Kupferschmid (07:51.195)
Yeah, AI is fundamentally different. It is an existential challenge because unlike other innovations and new technologies that come along, AI is different because what’s happening here is you’ve got AI companies that are training their models by ingesting copyrighted works to produce or to output works or whatever their output is called that will compete directly with those works that it was trained on.

and therefore put those creators out of business, if you will. That is a real, real existential challenge for the creative community.

Orlando (08:23.852)
Mm-hmm.

Orlando (08:29.345)
Yeah, it feels like it’s a bit like the photocopier. Its ability to do it at scale is actually the scariest thing. It’s you know, it’s it’s one thing, and this is what where I’ve always jarred with the fair use argument that the fair use argument says, well, just like a human brain, you know, I’m allowed to input any number anything from this wall of creativity behind me. I’m allowed to read it, I’m allowed to be inspired by it, I’m allowed to create something that is substantially different and it’s allowed to be out there.

You know, and there’s that old adage that, you know, good artists borrow, great artists steal outright. you know, and and I think that that however the difference is, my human brain only has a certain amount of output capacity. I can only compete by writing one or two if I’m Stephen King, probably three novels a year, but you know, there is there’s a certain limitation there. Whereas the the limitation gates have been completely opened with AI.

Keith Kupferschmid (09:05.573)
He

Keith Kupferschmid (09:19.845)
Yeah. Yeah.

Orlando (09:28.575)
Leading to incredible amounts of competition and I think disenfranchising artists. Is that a fair assessment?

Keith Kupferschmid (09:34.075)
Yeah, you are 100 % correct, but I want to point out something else. You talk about those books and other things that are on your shelves behind you. I bet you you paid for all those books and other doodads and trinkets that are up there. AI is not. It’s almost like you… Well, books, books too, right?

Orlando (09:43.659)
Yeah. Yeah.

Mm-hmm. Yeah. Thanks for mentioning the dude ads of trinkets. They they’re they’re they’re really what most of this background is about. Yeah, yeah, yeah, right, right. They’re just for show

Keith Kupferschmid (10:02.627)
And so, you paid for those, but AI is not. That’s honestly, that is the crux of the problem is that AI is just, these AI companies are just taking and stealing without compensating the creators and the copyright owners and without getting their consent. And that’s very different than the books on your shelves. And what makes it even worse is that not only are they taking this stuff without permission and without compensation, they’re then using it in a way.

Orlando (10:04.619)
Yeah. Yeah.

Yeah.

Orlando (10:30.049)
Mm.

Keith Kupferschmid (10:31.311)
that puts those very same people out of business. And so it’s a double-edged sword. It’s a real, real challenge for the creative community.

Orlando (10:34.284)
Yeah.

Orlando (10:39.505)
And that’s the line that was that was drawn in the sand. We had Lisa Oratz on not too long ago, who, you know, she was part of the the first case for critters that protected you know an AI output by showing meaningful human intervention. And and she’s you know, she’s a a thought leader just as you are on this space. But she kind of said that that was the interesting thing about the Bartz versus Anthropic case, was that they created a distinction between books that had been purchased.

and that that was fair use, but books that had been pirated, that’s where the demarcation line was for fair use training data.

Keith Kupferschmid (11:18.373)
Yeah, I mean, to some extent, that’s certainly what the Barthes case said, right? The judge in the Barthes case who’s now, judge is now retired. to be honest, if you, that’s in the Ninth Circuit, case, the Barthes case. The Second Circuit, which is a New York area, right? The Second Circuit took up similar issues, not in the AI context, but a similar issue. The idea of being able to buy books and then copy them and digitize them and use them as you would like. And the Second Circuit came out with a different.

very, very different result. They said that is not their use. You cannot do that. And so you’ve got these two competing circuits, one on the West Coast and one on the East Coast, that came out with very, very different answers to that question.

Orlando (11:48.365)
Yeah.

Orlando (11:55.149)
Mm-hmm.

Orlando (11:59.884)
And I think the East Coast case did focus on that that competition part of it a bit more. Is that right? Yeah.

Keith Kupferschmid (12:06.459)
absolutely. fact that, first of all, that you’re digitizing something, you’re changing the format of it. You’re not just taking a book, for instance, and giving it to a friend, which would be allowable under what’s called the first sale doctrine. What you’re doing is you’re making a copy of that book or books, right? And you’re digitizing it. And that’s very different. And that is not specifically allowed by the copyright law. So then it forces people to go, okay, well, if it’s not allowed by the copyright law,

Orlando (12:18.187)
Mm-hmm. Mm-hmm.

Orlando (12:24.748)
Yeah.

Orlando (12:34.957)
Mm-hmm.

Keith Kupferschmid (12:35.001)
Would it be allowed as a fair use? And the Second Circuit said no. The Ninth Circuit said in this particular instance, yes. And then, but to get to your point too, the Ninth Circuit in the Bart’s case also looked at the going to these pirate websites, which is pretty much what all the AI companies are doing, going to these pirate websites, they call them shadow libraries, but they’re really not libraries at all, and going to site and scraping all this pirated material.

Orlando (12:37.878)
Yeah.

Orlando (12:43.522)
Yeah.

Orlando (12:54.103)
Yeah.

Mm-hmm.

Keith Kupferschmid (13:02.668)
and using it to train their AI systems. And Joe Jalsup in the Bart’s case said, no, no, no, no, that’s not above board. You’re going to be liable for that. And they were in what was the biggest, I believe, at least the biggest damages case in copyright ever. And the authors are getting paid out, I think, somewhat handsomely in that case as a result.

Orlando (13:10.134)
Yeah.

Orlando (13:19.821)
Mm-hmm. Yeah.

Orlando (13:27.693)
But it’s all quite relative though, isn’t it? Because if there are a you know, a million authors that it like, I mean, there’s a lot of people who weren’t party to that case, but then there were a lot of authors that were, and then their proportionate share is is sort of negligible. it’s it feels like is the conversation moving so much past creators in this? I mean, like, you know, I have the AI companies sort of won.

by by guarding substantially the fair use argument. You know, is there is there much hope in these new cases, or is the pendulum swinging very much in one, you know, inevitable direction?

Keith Kupferschmid (14:12.184)
I see the pendulum is swinging toward the creative community. I don’t think it initially was. I don’t know what that will mean. maybe there’s, and as we say in copyright, the pendulum tends to swing back and forth and back and forth, which is why we call it a pendulum. And so although I think things are leaning toward the correct decisions, ultimately we’re going to have to see, there’s over, I think, 120 cases right now, as we talk today, that are out there pending.

Orlando (14:16.417)
great.

Orlando (14:25.175)
Yeah. Yeah.

Orlando (14:38.53)
Mm-hmm.

Keith Kupferschmid (14:41.551)
and they’re pending all over the country and they’re different set of facts in all these cases. So we could get very different results in these cases. We could see the Ninth Circuit come out with some result that is very different than the Second Circuit or the Fifth Circuit and we’re gonna have to make sense of all that. mean, matter of fact, if I could just go back to talk about the Bart’s case in the Ninth Circuit, that case came out and then I think it was a day or two later, the Cadry case came out in the same court, the same district court.

Orlando (14:43.853)
Mm-hmm.

Orlando (14:49.644)
Yeah.

Orlando (14:54.925)
Mm-hmm.

Yeah.

Orlando (15:03.671)
Sure.

Keith Kupferschmid (15:11.478)
in the Ninth Circuit, Northern District of California, two different judges, and they came out with very different decisions, very, very different opinions, if you will. And so here you have two judges in the same courtroom, basically coming out with different opinions. You can imagine if you go across the country, you’re going to get something even more different. And then in those cases involved texts, you could be dealing with movies or music or images.

Orlando (15:18.869)
Mm-hmm.

Orlando (15:26.337)
Right.

Orlando (15:32.705)
Yeah.

Keith Kupferschmid (15:39.758)
And you’re going to get vastly different opinions depending on what type of work the AI companies are copying and how they’re copying it and where they’re getting their source material from.

Orlando (15:50.55)
Right. Because that was the very famous case, wasn’t it? Sarah Silverman and George R.R. Martin, the writer of Game of Thrones. You know, that was at the beginning, that was the kind of the the case that everybody was looking at. And actually Bart’s was heard first. And it kind of yeah, it it sort of it seemed the first win for fair use. but like you said, you know, it seems like we expected these court cases to shed enormous amounts of lights on things, but it feels like

A they’re contradicting each other on fairly major points, and B they raise a whole bunch more questions.

Keith Kupferschmid (16:27.557)
Yeah, in some sense it did confirm what we knew before the cases were decided, right? There was chaos before, we’ve confirmed there is chaos, right? Because you really look at these two cases and what are the takeaways? And I don’t know that there’s too many takeaways from either of those cases. I think both sides will say, whether you’re on the AI side or the creative community side, it will say that, okay, the judge got this right, but got this wrong. I think in the Bart’s case in particular,

Judge Alsop seemed to be so enamored with AI, the technology that he said, of course, this is the most transformative technology of our time. And that’s well and good. And it is amazing technology. But that is not the test for what is transformative and what is not transformative. It’s actually a legal test. And he never applied the legal test. He just thought, my God, this is so amazing technology. It must be transformative. But it’s actually a legal test to figure out whether it’s transformative. And I should, let me take a step back and say,

Orlando (16:59.277)
Mm.

Orlando (17:04.053)
Right.

Orlando (17:13.739)
Yeah. Yeah.

Orlando (17:21.078)
Yeah.

Keith Kupferschmid (17:25.508)
that whether something is transformative or not is one element when you consider if something is fair use. There’s lots of different factors to consider. Transformative use is sort of a sub factor if you.

Orlando (17:31.946)
Mm. Right.

Orlando (17:38.049)
Yeah.

Yeah, but even the transformation argument, I think that like what’s so interesting is that I could write something, put it into AI, and be like, or or steal something. And and so my mother was a writer. Her books were in the books three corpus. She wrote 19 books, they were in there. I don’t think that anybody’s, you know, necessarily prompting for romantic books of the 80s, you know, necessarily. But if somebody wanted to, they could say, I want Palm Beach, but I want it 50%, I want it 50%.

Keith Kupferschmid (18:02.938)
Mm-hmm.

Orlando (18:08.407)
30% different or 10% different. And I think that that being able to dial in and reliably expect, you know, the the amount of difference you’re dialing in, if you’re still using that source as the point of origin for your prompt, doesn’t that feel it feels like theft?

Keith Kupferschmid (18:28.664)
Yeah, no, it absolutely is. And so let me take a step back too, because you kind of combined two separate issues in terms of how the courts will consider this, right? The courts…

Orlando (18:35.447)
Great.

This is exactly why why I wanna have this conversation. Cause I think that every time people say something like me or anybody else, they don’t realize they’re actually taking two completely disparate ideas and shoving them together. And and so yes, th thank you. This is exactly what yeah. Yeah. Yeah.

Keith Kupferschmid (18:50.905)
Yeah, they’re not completely disparate, but the courts will treat them separately, or at least they should, and we’ll see what happens. And so you mentioned, you said, well, wait a minute, it seems wrong that they’re just copying, it’s your mother’s book, right? And to produce something that might be 10 % different. And so what the courts should look at is separate that into what I’ll call input infringement and output infringement, they’re two separate things. Under copyright law, when the AI companies copy,

Orlando (19:04.8)
Mm-hmm. Yeah.

Keith Kupferschmid (19:20.117)
your mother’s book, that’s a complete copy, period, end of story. That is copyright infringement. The only way that’s not copyright infringement is if they have a defense like fair use and why all these cases involve fair use. But you do not have to look at the actual AI output and compare the AI output to your mother’s work to see is there an infringement or not. Because there is…

Orlando (19:24.915)
Mm-hmm. Right.

Orlando (19:47.853)
Mm-hmm.

Keith Kupferschmid (19:48.375)
Definitely an infringement on the input side. What you would look at is does it? Fair use would consider is the purpose of those two works the same? Are you producing a romance novel? Is your mother’s Work a romance novel. Yes, is the output of romance novel? Well, the purpose is pretty much the same then and so it’s probably going to be unlikely to be fair use now Let me take the other infringement. The other infringement is output infringement and that is what you do look at is the output

Orlando (19:51.597)
Mm-hmm.

Keith Kupferschmid (20:18.073)
Substantially similar to the inputted work the ingested work and that’s gets your point If you change it by 10 % or 20 % or 50 % Who knows what the percentage is that it needs to be different, but there are two separate infringements So let’s say you get something that’s identical to your mother’s book. There are two infringements there, right? There’s infringement on the input side and on the output side and a lot of people out there I think don’t really understand that they always think

Orlando (20:22.805)
Orlando (20:30.091)
Right. Yeah.

Keith Kupferschmid (20:46.148)
but the output is different, is different than what the AI companies are ingesting. And okay, that’s helpful, but it’s helpful when you’re talking about output infringement, not the input infringement. Hopefully that makes some amount of sense.

Orlando (20:57.709)
So yes, absolutely. So are you saying that that but that by simply digitizing, just taking a book, digitizing it, you’ve already done something illegal or morally dubious. That initi that act itself is copyright infringement.

Keith Kupferschmid (21:12.15)
Absolutely. So

Keith Kupferschmid (21:16.653)
Yeah, and you don’t have to look any further than I think it was a year and a half ago, maybe two years ago now, where the book publishers brought a case against a company organization called the Internet Archives. And in that case, that was in the Second Circuit. That’s the case I was referring to before, where the court said, you’re digitizing these books. You don’t have authority to do that. That’s not fair use. It’s an infringement, period, end of story. So yes, the mere fact of digitizing these works without permission

Orlando (21:27.041)
Yes.

Keith Kupferschmid (21:44.457)
without compensation will be considered to be an infringement. In certain instances, maybe it might be considered to be a fair use or certainly cases out there where it has been held to be a fair use, but it will be an infringement and the company that does it will be liable unless the fair use defense would apply.

Orlando (22:01.857)
Mm-hmm.

That’s fascinating. And that’s something I absolutely didn’t know. Cause in my mind, and especially because we sort of see clips of things on YouTube and whatever else, it’s always been in my mind that that you can sort of do whatever you want behind the scenes. The only time it becomes official copyright infringement is if you monetize something. That you’ve you’ve tried to sell something that isn’t yours, and then actually by

Clipping your favorite trailers of the year, on putting it on YouTube on a non-monetized thing that actually you’ve sort of just been a part of, you know, the conversation of culture. You haven’t actually benefited or profited from it. And so you haven’t committed any sort of copyright theft. But but it sounds like that’s a a myth in the that either I’ve created or or colloquially we’ve all created as a as a populace.

Keith Kupferschmid (22:58.253)
Yeah, no, I think that’s right, you’re saying, because copyright law doesn’t require any state of mind, right? You don’t have to know you’re engaging in infringement or anything like that. You don’t have to be charging money for it. You don’t have to be profiting or anything. The mere fact that you are copying something, that is a violation of a copyright owner’s reproduction right. And that person who does the copying, who engages in the copying, will be liable unless there’s a defense.

Orlando (23:15.277)
Mm-hmm.

Orlando (23:20.278)
Right.

Keith Kupferschmid (23:27.129)
Now maybe there’s a defense of some sort that applies in the AI case, that defense is at issue in about 120 cases is the defense of fair use.

Orlando (23:27.734)
Right.

Orlando (23:37.952)
Right. Okay. That well, that I mean, listen, that’s f I’ve learned something. Every day’s a school day. I’ve learned something absolutely major. And I’ll be very careful in the future how I address it. Cause I’ve I’ve made that mistake so many times on this podcast. so I’m I’m thrilled to have learned something new. The regarding output, and I I love that you’ve made this distinction between input and output, but regarding output.

How much does the prompting matter? We’ve we’ve heard from some people that you need to be logging all of your prompts so that it’s clear that you do you say, I want a muted color scheme and I want a really balanced framing. And you can say that. What you can’t say is I want it to look like Wes Anderson. you know, when c when it comes to defending the output or or claiming copyright on something that you’ve been a part of creating using AI, how

Keith Kupferschmid (24:19.127)
Okay, yep.

Orlando (24:31.841)
You know, what are the the the levels of intervention at play? You know, wha what does one have to do to be protecting or using these these sorts of tools?

Keith Kupferschmid (24:44.483)
Yeah, so to be clear, we’re going to switch topics now, right? We’ve been talking about infringement. I understand you’re now asking about copyright ability, right? If you’re using these tools, is the end result? Is the output protected by copyright, right? And how much, yeah.

Orlando (24:48.653)
Sure. Mm-hmm.

Right. Right.

Well, should I mean actually in that case, should we take the first step, which would be, you know, at what point is it infringement along that output path? Does that?

Keith Kupferschmid (25:09.954)
Yeah, I mean, and the test would be substantial similarity. Is the output substantially similar to the input, if you will, to a copyrighted work? And that’s the test. It’s been the test for a very, very long time in terms of determining what is and what is not infringing. And so if you’re talking about copyrightability, then what you do is you look at, and from…

Orlando (25:12.791)
Sure. Right.

Orlando (25:18.327)
Yeah. Right.

Mm-hmm.

Orlando (25:27.682)
Mm-hmm.

Keith Kupferschmid (25:37.644)
the copyright office’s standpoint and the courts so far, they basically say, look, there’s got to be a human, an author’s got to be a human. It cannot be AI, right? So if you ask AI to do something simple like, you know, make me a cartoon frog or something like that, well, that’s not going to be protected, period, end of story. If you put in pages and pages of prompts and what have you, the viewpoint still is,

Orlando (25:46.925)
Mm-hmm. Yeah.

Orlando (25:55.119)
Right.

Right. Yeah.

Keith Kupferschmid (26:05.826)
that that end result is not going to be protected because it’s AI that made the decisions in terms of how to interpret your prompts. That could change over time, but that’s what the law is right now in terms of because it’s going to be not protected by copyright. But then you have the mix of, let’s say you’re writing a book and you wrote your book and you say, well, the character’s names aren’t terribly interesting here. I’d like to…

Let me put this through AI and say, AI, give me some more interesting characters or change, you know, or something like that. Well, you did most of the work there and all it did was add and change the names. So that is going to be protected by copyright. And, but you can imagine you’ve got a scale here. You’ve got this big gray area in between where we just don’t know if you’ve done enough to actually warrant copyright protection. And that is very much up for debate. There’s one case that was

Orlando (27:01.634)
Right.

Keith Kupferschmid (27:05.4)
just decided, but that was an easy case where the person who was the so-called creator said, did nothing, AI did it all. Well, that’s an easy case. That’s the green frog case I mentioned before. But there’s a case pending right now in the courts where the person did a little bit of the artwork themselves and AI did a little bit of it. And it becomes a lot more difficult to figure out, okay, what’s protected and what is not protected there.

Orlando (27:31.861)
Yeah. Yeah. Is there a certain point at which the

The complexity of the prompt, let’s say, and let’s and we’ll just use a very simple example, an absolutely massive complex prompt and one single output. Is there a level at which the complexity of the prompt becomes protectable? Because obviously, if I do a make me a cartoon frog, that’s another thing. If I write the wind in the willows and and say this is a, you know, taking place in a fictional world and you know, and and there is a cr a frog who’s the leader of it and whatever else, well that’s now a

what could be argued as a novel or novel series, is only my protection of those words protected. Once it becomes an AI output, it’s sullied by the training data or the the decisions of the model, and it no longer becomes my protectable word.

Keith Kupferschmid (28:28.067)
So it would still be protected, right? Your work would be protected, but anything that was added that was generated by AI would not be protected, right? So let’s take my green frog. Well, so let’s take my green frog example, right? So let’s say I drew a green frog and, you know, an animated green frog. And then I put it into the AI system and said, AI, can you put clothes on my frog and put a hat on him or something?

Orlando (28:37.419)
Right. So anything visual.

Keith Kupferschmid (28:54.329)
That part’s not going to be protected, but my green frog that I drew myself will be protected. So it’s going to be a mix of, are to be, it’s going to be a copyrighted work at the end of the day, but there are elements of that copyrighted work that are not yours that are not going to be protectable. And that’s not crazy unique. mean, take a motion picture, for example, you go to see a movie in the theaters, there’s music playing, you know, within the movie and that music, let’s say was created by some other artists.

Orlando (28:59.821)
Mm.

Orlando (29:04.471)
Mm-hmm.

Keith Kupferschmid (29:24.386)
Well, the Motion Picture Studios not going to claim copyright in that song, right? That belongs to someone else. So this idea of separating out the elements that you did not create and someone else has created or something in this case with AI, that’s not a unique aspect of copyright law. That’s been done before. It happens all the time. It just is more convoluted and complex, I think, with AI.

Orlando (29:29.143)
Mm-hmm.

Orlando (29:36.802)
Yeah.

Orlando (29:41.921)
Uh-huh.

Orlando (29:50.892)
Yeah, there was an interesting case that that I got to sort of see up close where the rights to Terminator were going to revert back to James Cameron after after 50 years or something like that. And what was interesting was what the rights were that were reverting back. Any characters that were part of his original script and his Terminator 2 script reverted back. But any characters that were created from Terminator 3 onwards were not covered by that because they were.

Not those characters were not within. Now, arguably, Cameron goes, I don’t care. None of the characters beyond Terminator 2 were any good. But it was very interesting seeing that delineation in real time in something as traditional as film and screenwriting. That you know, that certain things are coming back, certain things are not. And I think in the first tranche of rights that went back to him, it was only that original script, that original movie. Sarah Connor.

Keith Kupferschmid (30:27.852)
Yeah

Orlando (30:45.921)
The idea of John Connor, but not the T 1000, only the T eight hundred. Sorry, I like I said, with all these Tchotchkis behind me, I’m quite a nerd. But but I followed that quite avidly, and it’s a good example, I I think, of what you’re talking about, which is you have certain rights to certain things, but depending on when and how they’re manifested, you may not own the characters surrounding your primary idea, you know, the the family of frogs.

Keith Kupferschmid (30:52.044)
Yeah,

Orlando (31:13.887)
If the AI comes up with a family of frogs, you create this great storybook world, and then actually you only own the the primary frog.

Keith Kupferschmid (31:23.563)
Yeah, you know, I think that’s I think that’s generally right and and that’s why these issues get a little complicated games Cameron examples probably frankly all done under contract contractual terms and and and what have you and so that becomes even a little bit more complex but but certainly yeah, I mean that that’s why These issues are issues of first impression people will ask questions. What about this and what about that and Me and my team and other attorneys give the best answer we can but we also realize

Orlando (31:34.391)
Sure, yeah, yeah, yeah.

Orlando (31:46.54)
Mm-hmm.

Keith Kupferschmid (31:53.601)
that that could change on a dime. Tomorrow we could get some court case that says, here’s the standard, here’s what you need to be looking for, or maybe Congress passes some law that does the same thing. But right now, today, yeah, that’s, mean, we have to look at each individual case and understand the facts in those cases and how the copyright law would apply to the facts in that case.

Orlando (32:13.357)
Yeah. Yeah, you said something on our briefing call that I felt was very important, which is AI is not going away. So the question is, how do we solve the copyright issues around it? What is what is the what are the main things that a solution actually has to solve?

Keith Kupferschmid (32:32.13)
So I think there’s three things, right? And there’s one that’s one of the three, licensing is the most important issue. I think if you have free market licensing where AI companies get licenses from copyright owners to ingest their works and trade on their works, I think everyone goes home happy basically, right? So licensing is number one. You need some element of transparency so copyright owners can know.

if their works are being copied or not. So you need some element of transparency. I don’t think you get that in the courts that will have to come through Congress. And then last thing is what I’ll call safeguards, right? You need each AI company needs to implement safeguards to make sure that works or whatever is output by the AI system is not identical or substantially similar to a copyrighted work. In other words, you’re not

Orlando (33:08.076)
Yeah.

Orlando (33:11.554)
Yeah.

Orlando (33:27.81)
Yeah.

Keith Kupferschmid (33:28.641)
producing Darth Vader or SpongeBob SquarePants or whatever the case may be. And there needs to be safeguards and some companies are doing that and some are not. But I think those are the, I think the probably the big three elements. mean, licensing, safeguards and transparency.

Orlando (33:42.093)
Mm-hmm.

Orlando (33:46.412)
Yeah. Yeah, cause you know, you’re it’s what you just said is very interesting because copyright has always had to serve two masters, hasn’t it? On the one hand, it has to protect artists and creators enough that they can make a living, but it also needs to not lock culture so tightly that new creativity becomes impossible. And so it’s sort of a little bit like the US Constitution. It should be rigid enough to give us guidance, but stretchy enough that it allows for growth.

Keith Kupferschmid (34:07.083)
Yes.

Orlando (34:16.149)
And I think, you know, again, I’m sorry if I bring up nerdy examples, but you know, the original Teenage Mutant Ninja Turtles was a essentially a ripoff of Daredevil. You know, in Daredevil you had the hand that was the that was the the all the bad guys. And in in Teenage Mutant Ninja Turtles, you had the Foot Clan. And it was, you know, there was all this sort of playful stealing or or borrowing. And and that’s a good thing. And copyright is is built to protect that. you know.

How do you think that that is there a a rebalancing of that of those two needs around the AI conversation? Do we need to be more strict? Do we need to be, you know, yeah, do we yeah, do we need to change that posture or that balance between those two things?

Keith Kupferschmid (35:06.945)
Yeah, I think we’re already seeing that happen a little bit. There was a Supreme Court case decided a few years ago in the Andy Warhol case. And what the Supreme Court said is, wait a minute, fair use has kind of gotten too far. It’s gotten too large. This idea of transformative use has swallowed up the entire fair use analysis. And we need to rein that in a little bit. And that’s what the court did in that case. And so we’ve already seen a little bit of the

kind of reigning in and fair use is this four pronged test that is intended to balance the very things that you were talking about. On the one hand, you want to incentivize creativity and incentivize people to distribute their copyrighted works far and wide. And the way to do that frankly is they get paid for it then, right? And so you want to keep that incentive alive. By the same token, you want to incentivize other people to look at those works and see those works

and to inspire them and for them to create new works from that. And that is a difficult balance. And we talked about pendulums before. use is most definitely a pendulum. Sometimes it goes a little too far on one side or the other, and then it kind of swings back to the other side. That’s exactly what was happening in the Andy Warhol Foundation case, where the pendulum was, the court says, wait a minute, this pendulum swung a little bit too far to the Fair Use side. We need to bring this back a little bit more to…

Orlando (36:07.179)
Yeah.

Orlando (36:20.023)
Mm-hmm.

Orlando (36:24.173)
Mm-hmm.

Orlando (36:29.884)
huh.

Keith Kupferschmid (36:32.385)
to protect creators to keep this incentive going. And that’s ultimately, I think, what the big takeaway from that case is. And I think we’re seeing that in the AI context now as well, trying to figure out how fair use should apply in the AI context. And we at the Copper Alliance are big supporters of AI, right? As long as it’s done responsibly, ethically, and respectfully, right? On the one hand.

Orlando (36:34.54)
Mm-hmm.

Keith Kupferschmid (37:02.463)
So, but for fair use, we understand that some of these cases probably will be fair use. There will be legitimate fair use, but the vast majority of them probably will not be. A lot of the cases that we’re seeing in the courts today, I think the vast majority of them, the courts should come out and say, no, no, this is not fair use. You are copying a work in order to compete with and frankly destroy the market for the work that you’re copying and you’re doing it without permission and without compensation.

and that just shouldn’t be allowed. You’re going to destroy whole areas of creativity.

Orlando (37:36.939)
And where do you guys fit in that conversation? How do you, you know, you said your mission is to protect artists, creatives, and creators. Where do you where do you find you’re doing the most good and and getting the most impact in that mission?

Keith Kupferschmid (37:52.247)
I mean, so part of it is we’re having, think, I hope, the most impact is, for instance, what we’re doing today. It’s just explaining to people copyright law and explaining how copyright law applies to AI and to other things. so this is certainly an element of education. There’s also an element of advocacy, going up on Capitol Hill, going to the executive branch and explaining how fair use applies, what the purpose of fair use is, what the purpose of copyright law is. Do we need?

new laws here for instance, Congress, and we do the same thing with the courts. We’ll file amicus brief with the courts explaining this is how the law is applied in other cases. Maybe this is right, this is wrong, things of that nature. part of his advocacy, part of it is education. And I also should add that we also educate our members, right? When AI first came along, a of our members, just especially our smaller members, like the individual photographers and what have you,

didn’t necessarily understand AI and how it worked. And so part of our job is to educate them so they can protect themselves as best as possible.

Orlando (39:02.295)
That’s interesting. I mean, what what what are creatives experiencing, right? Artists, creatives. I mean, because on the one hand, I I saw a stat the other day and it was mainly focused in England, but it was that the create the creative industries are growing at nearly two times the rest of the British economy. But what was interesting is I was there and I was meeting with lots of people who ran production companies and studios and and advertising agencies, and they are not feeling that growth.

And so it seems that so much of the growth is has gone from creatives or creatives that work with inside industry, or artists who people are who are creatives that are sort of on their own to creators who are, you know, kind of taking advantage of direct distribution to kind of, you know, make money online and in socials. You know, that we’re definitely seeing that pain for the artists and the the creatives.

You know, what are you seeing in terms of their experience now, you know, in the first major shift, which is the the distribu the disruption of distribution versus the new shift, which is the dress disruption of production, which is what we’re seeing with HR with AI AI. I don’t know what’s happening to me today. Sorry, Keith. I’m tripping over my own mouth. This is what happens when I ask seven part questions. So it’s entirely my fault. What are creatives experiencing?

Keith Kupferschmid (40:20.95)
No, that’s quite all right.

Yeah, no, mean, look, I wish I could put all creatives or creators in a bucket and say, this is what they’re experiencing. This is what their belief system is. But that’s just not possible. If you survey all of our, all of the close to 2 million individual creators that we represent, you’re going to get a variety of views. Some of which will say, you know, AI is terrible. I would never use AI. Others that absolutely do use AI for things like

Orlando (40:30.497)
Ha ha.

Orlando (40:39.125)
Mm. Yeah.

Orlando (40:56.685)
Mm.

Keith Kupferschmid (40:56.855)
I gave the example of someone who wrote like a short story or a book and wanted more interesting names for their characters. That comes from experience, from talking to a creator who did that, right? And so there’s a little bit of a mix. And to be honest, you go onto some of these forums where creators are talking and they may go at each other a little bit, you know, in terms of, wow, you’re you’re disenfranchising us because you’re using

Orlando (41:08.897)
Yeah. Yeah.

Orlando (41:25.035)
Yeah.

Keith Kupferschmid (41:26.246)
AI to help with your creativity and what have you. so they’ll get into arguments themselves. So I wish I could put all creatives or creators into a bucket and say, is how they feel, but that just really isn’t the case. You’re getting a wide variety of views. think the one consistency that you hopefully see is, but this is kind of hard to implement in practice is, think creators do want to be respectful and they want to use AI that is respectful.

Orlando (41:40.555)
Yeah.

Keith Kupferschmid (41:54.3)
of copyright. Like there are lots of AI companies out there that are licensing. We have a page on our website that goes through thousands of licenses between AI companies and copyright owners that are being agreed to. And so I think the small individual creators do try their hardest to look, okay, is this a legitimate, you know, AI company that’s trying to do the right thing, trying to license?

Orlando (42:21.858)
Yeah.

Keith Kupferschmid (42:22.582)
Or is it just stealing my stuff and everyone else’s stuff? So I think they do try to use the technologies that are respectful. And there’s a lot of, and this doesn’t get said very often, but there’s a lot of smaller AI companies like Bria AI is a good example. ProRata is another example. There’s a few others that are licensing works from copyright owners and creators in order to train their AI systems.

Orlando (42:28.279)
Yeah.

Orlando (42:37.537)
Mm.

Keith Kupferschmid (42:51.935)
It’s really the big guys that can afford all these to hire all these attorneys. You know, it’s the medas of the world and the Googles of the world and anthropics and so on and so forth that have billions upon billions of dollars to throw at litigation that they’re willing to do that rather than license for the most part. But a lot of other AI companies are licensing works today.

Orlando (43:13.751)
Yeah. Well, I mean, who’s it who are you seeing? So, you know, like I I I appreciate you can’t lump everybody in together, but who are you seeing that you feel is particularly at threat? Because if it were me, I would be looking at this the creative community and the artistic community, and I’d be like, I wouldn’t want to be a writer right now. You know, I think that, you know, for example, the Mia Ballard case where, you know, she wrote a book, it did very well.

Keith Kupferschmid (43:30.986)
Yeah, yeah, yeah.

Orlando (43:39.628)
And then she was accused of using AI and her publisher just pulled the book and sort of, you know, left her on her own. And I thought that was shocking and and unfair to somebody who, regardless of how she came out with it, the publisher I think should have backed her through that process. I think abandoning her was incredibly, you know, rude and inappropriate thing to do. You know, they they either failed in their own vetting practice or, you know,

You know, or just succumb to allowing her to kind of be execution style cancelled. but I, you know, I think it speaks to, you know, this thing that writers do a very hard thing that has now become substantially easier. And I don’t think that AI should solve writing, but I do think it can solve writers’ block. And and I think that but yeah, it’s sort of changing the dynamics of what’s what what is valuable.

yeah, or are that was just my assessment. Sorry, I answered my own question, but are there cre specific creators or artists that you think are particularly at risk?

Keith Kupferschmid (44:39.83)
Yeah, yeah.

Keith Kupferschmid (44:46.934)
I think there are. I think just to pull one example, because we’ve talked about it already, is romance writers. think romance writers, I have to admit I haven’t read any romance books. Yeah, yeah, yeah. But from my understanding, are fairly formulaic. I apologize to all the romance writers. I’ve not read them, if that’s not the case. But from what I’ve heard from other people, that’s, I think, a good example.

Orlando (44:57.259)
Because of my mom’s books being in there. It’s good.

Orlando (45:05.837)
That’s okay. Yeah. Yeah.

Keith Kupferschmid (45:12.501)
Computer coders, right, is another example that I’ve heard quite a bit that they are at threat, and there’s other examples that the other, yeah.

Orlando (45:17.429)
Mm.

Orlando (45:22.423)
That’s such a good point. We think about copyright and we naturally think of artists, but you’re absolutely right. I mean, computer code is copyrightable. Yeah. Yeah.

Keith Kupferschmid (45:28.563)
Yeah. Yeah. Yeah. No, absolutely. Absolutely. I mean, that’s that that brings me to one thing I want to mention, which is, you know, when we talk about AI, we talk about it in terms of how it or generative AI, I should say. We talk about generative AI, we talk about it as if it applies equally across the board, whether you’re talking about a movie or a book or or music. And that is just not the case. Right. Is that it is going to apply

Orlando (45:42.941)
Mm-hmm. Yeah.

Orlando (45:48.787)
Mm. Mm.

Orlando (45:56.087)
Yeah.

Keith Kupferschmid (45:58.089)
differently depending on the type of work at issue and let me give an example Okay, you could be for instance copying and I’ll just stick with the romance novels here You could be copying all the romance novels in the world Okay to create an AI system But that AI system is used only to write cover letters or resumes or thank-you notes or something That’s not going to be competitive No one is going to be licensing the romance novels for that purpose that

Orlando (45:59.95)
Mm.

Sure.

Orlando (46:07.169)
Mm-hmm.

Orlando (46:11.394)
Mm-hmm.

Orlando (46:18.433)
Mm-hmm. Yeah.

Keith Kupferschmid (46:27.187)
So that’s very likely going to be a fair use. However, if you were copying all these romance novels to make more romance novels that compete with the authors of those romance novels who you copied, then that very likely isn’t going to be a fair use because that’s going to harm the market. And so you saw in text, it’s more difficult analysis, I think, at least. But let’s look at music. In music, for instance, you’re

Copying music for what? To make more music. I mean, that’s what you’re doing, right? That is inherently going to be harmful and competitive and serve the same purpose, if you will, as other music. So I think the music cases, the newspaper cases, and some of the image cases and the way I view them, are really, really strong cases. I would be shocked if any of the music …

Orlando (47:00.065)
Yeah.

Orlando (47:09.612)
Yeah.

Orlando (47:15.821)
Mm.

Keith Kupferschmid (47:24.681)
companies, music plaintiffs lost their cases and same with the newspapers. They have very, very strong cases for the example I just gave.

Orlando (47:28.375)
That’s interesting.

Orlando (47:35.553)
But so dig into that more. So what is it? So what is it about it that makes their case so strong? And is there something that other creatives and and creators and IP owners can can learn from, can strengthen their case by learning from that, you know, strength?

Keith Kupferschmid (47:51.669)
Yeah. So let’s go back to something I said before about the input and the fact that AI companies are copying entire work. So it’s an infringement unless there’s a defense, defense could be fair use. So basically it’s all it’s going to come down to, is it fair use or is it not fair use? Now, if you’re looking, let’s take the music case. If you’re looking at fair use, whether something is a fair use, a lot of times depends on, there going to be market harm here?

Orlando (48:04.151)
Mm-hmm. Mm-hmm.

Orlando (48:09.484)
Mm-hmm.

Keith Kupferschmid (48:20.017)
And what is the purpose of the use? If the purpose is completely different, then there’s a very good chance it’s going to be a fair use. So in the example I gave with the romance novels, if you’re making resumes, if you’ve got a tool to make resumes and cover letters, well, the purpose is very different than the purpose of a romance novel. If you’re in the music side, if you’re copying music to make other music, it’s going to cause market harm. It’s going to be a replacement. Yeah, yeah, yeah, yeah.

Orlando (48:36.455)
Mm. Yeah.

Orlando (48:44.469)
It’s a very linear one to one, yeah, relationship. Yeah.

Keith Kupferschmid (48:48.649)
Yeah, and so that’s why think the music cases, newspaper cases, or similar both are very, very, very, very strong cases and they should prevail in those cases.

Orlando (48:57.921)
So it’s sort of the diversification of output, you know, sort of protects some of the language models. It’s like, well, no, no, but this thing is here to, you know, write a contract. It’s here to schedule your day. It’s here to be your coach. It’s here to do all of these things. And yeah, it can help you write something, but you know, so, you know, but the music is we ingested this for a single purpose. You know, we it yeah, that’s very interesting.

Keith Kupferschmid (49:10.771)
E-

Keith Kupferschmid (49:20.949)
Yeah, yeah, yeah. And this is why I think, going back to my earlier point too, about where people get confused about, oh, wait a minute, you have to look at the output, whether the output is substantially similar to the input. You don’t look at that, but you do have to look at the purpose of the output. So that’s where people get confused. Is the purpose of the output the same as the purpose of the input? If so, you’re probably not going to win on fair use.

Orlando (49:28.301)
Mm.

Orlando (49:36.0)
Yeah.

Orlando (49:44.747)
Yeah. Right.

That’s ver that’s very interesting. yeah. And and you know, where where are you kind of, you know, where are you thinking that the harm is most visible right now?

Keith Kupferschmid (50:03.189)
I mean, look, if you look at the 120 plus cases that are out there, the vast majority of those cases are in the world of text or book publishing, newspaper publishing, know, it’s the text world. so so that is the I think the biggest challenge. There are obvious there are a lot of cases in in the music space. Audiovisual works, movie studios have brought quite a few lawsuits as well. But

Orlando (50:13.717)
Mm-hmm. Mm-hmm.

Keith Kupferschmid (50:29.491)
without a doubt, biggest, the largest number of cases in text. And so I think that’s the most challenging area. And for the reasons I gave, it’s also the most difficult for the court to decide as well.

Orlando (50:43.319)
Do image models skew closer to music in your mind than than the language model? because surely creating a moving image, I would argue that at least 50% of it is going to be for some form of entertainment. You know, whether you kind of, you know, whether you suggest that, no, it’s for scientific diagrams and whatever else. And sure, I’m sure it would be, but like there’s there’s less

defensible use cases that differ from what seems to be the primary copyright issue.

Keith Kupferschmid (51:17.406)
Yeah. Yeah, yeah, yeah. No, I think that’s right. I think there’s a spectrum of types of works and whether they’re likely to be infringing or not. On one end of the spectrum, you have music, which, like I said, I think is absolutely hands down infringement because it’s not going to be a fair use. On the other end of spectrum, you have text, which I think a lot of those cases, like I said, especially the newspaper cases, will not be fair use too.

but they’re at least a little more difficult to handle. And then you raised images. Images is closer to music. It’s not as far because you can envision different uses of images that have different purposes, but it’s very, very close to the music cases, I think.

Orlando (51:52.331)
Yeah. Yeah.

Mm-hmm. Yeah. Well, I mean, just colloquially in my life, I mean, I’ll say that, you know, and and maybe this is just kills my music creds or any coolness I I may have built up. But I very happily listen to there’s there’s one Spotify playlist that’s basically like, you know, Amalfi Coast yacht, you know, like you know, a Malfi Coast kind of, you know.

Keith Kupferschmid (52:10.675)
Hehehehe

Keith Kupferschmid (52:23.006)
Yeah. Yeah.

Orlando (52:26.527)
mid century music and I absolutely love it. And I, you know, I had a whole party at my house where that was what was playing in the background. And avowedly, you know, there isn’t an artist on the other end of that transaction. And and like you said, it is fully replacing that experience that used to have to be given to me by an artist. And and and that that’s not happening with writing, at least not that I know of, you know, or or images.

Keith Kupferschmid (52:48.66)
And in music, so.

Keith Kupferschmid (52:53.385)
Yeah, and even more so because music is largely streamed these days, And there’s a, this sounded a little crude, but a pot of cash, if you will, right? That the Spotify’s of the world distribute to the artists and the songwriters and what have you. And if all of a sudden AI is taking up that space in what people listen to.

Orlando (52:59.178)
Yeah, yeah.

Orlando (53:04.717)
Right. Yeah. Yeah. Yeah.

Yeah.

Orlando (53:12.545)
Hmm.

Keith Kupferschmid (53:21.008)
less and less money is are going to those those artists. And that’s a problem. So getting to my point about music being the easiest cases in my mind is you can show a direct line to the harm, too. You can say, look, we’re not getting as much money because AI is out there and people are listening to AI. And I think a lot of people, when you open their eyes to this, like this is not a real band. This is not a real person you’re listening to. We’ll get upset about it and.

Orlando (53:21.75)
Yeah.

Orlando (53:25.229)
Mm-hmm.

Yeah.

Orlando (53:35.52)
Yeah.

Yeah.

Keith Kupferschmid (53:49.716)
But unfortunately, at least right now, there does not seem to be any way to stop that from happening. Like to say, no, I want listen to human artists. Let me know when something is AI. I’ve had long discussions with my friends about this. Like, how do you tell? I don’t want to listen to this thing. And it’s very difficult. But that just shows still we are very much in the early days of AI and copyright. There’s still a lot of

Orlando (53:50.444)
Yeah.

Orlando (53:56.107)
Yeah.

Orlando (54:08.171)
Yeah.

Orlando (54:16.427)
Yeah.

Keith Kupferschmid (54:19.528)
challenges that need to be addressed, a lot of, we have to figure out a lot, I think, and this is just one area.

Orlando (54:21.963)
Yeah.

Orlando (54:27.425)
How can it possibly keep up? Because I mean, I, you know, I think back to, I mean, it took 20 years at least for people to start legislating against revenge porn, for example, or or you know, or you know, something you might have shot privately with another individual that then you put out on the internet. That was wrong the entire time it was happening over the 20 years of the internet, yet it was only legislated 20 years later. With a with a product and and and a technology that’s moving this fast.

What hope do we have? Is there a mechanism that could be reasonably fast enough to legislate or or you know nanny these things in in real time or or speed up our responses to them?

Keith Kupferschmid (55:11.262)
So the answer, unfortunately, is no, right? We all know Congress takes a long time to respond. And to get any legislation out of Congress is difficult when it’s not as complex as AI and when you don’t have big time players like Google and Meta and down the road to deal with, right? So the idea of getting Congress to solve this problem

Orlando (55:24.631)
Mm.

Orlando (55:28.993)
Mm-hmm.

Orlando (55:35.221)
Mm.

Keith Kupferschmid (55:38.644)
or whatever problem, whether it’s transparency or fair use or what have you, I wouldn’t bet on that, at least not in the near future. Then you look to the courts, and I think what we’re doing is we’re looking to the courts. Now, the courts are not moving all that quickly either. As I mentioned, there’s about 120 cases or more out there, and we’ve gotten at this point three district court opinions. We might get an appellate court decision within the next few months.

Orlando (55:45.515)
Mm-hmm. Yeah.

Orlando (55:53.836)
Mm-hmm.

Keith Kupferschmid (56:08.02)
Thompson-Royders versus Ross case, although that’s a little bit of a different case. But other than that, these other hundred plus cases that are out there, it’s going to take years for them to be decided. And even when they’re decided that’s only going to be by district court, they’re going to be appealed, no matter which side loses. They’re going to go to appeal. so it’s going to go to an appellate court. That will take some more time. And then eventually, Supreme Court will take it on. So we are still talking years and years away from resolution here.

Orlando (56:08.301)
Mm-hmm.

Orlando (56:18.529)
Yeah.

Mm.

Orlando (56:29.013)
Mm-hmm.

Keith Kupferschmid (56:36.66)
And that’s what makes this especially difficult is that there’s no immediate solution on the horizon other than market-based solutions, which is trying to get AI companies to do the right thing and to license works from the creative community.

Orlando (56:54.593)
I’ve often said that, you know, when when the sort of French Native American war happened, you know, like the the the the Native Americans didn’t spend a lot of time making better bows and arrows, they they got their hands on guns. And I I sort of feel that way a little bit about AI, you know, is that that the best way to fight back if you’re a creator or an artist is to use it and become more prolific, output more, do more.

You know, this episode is sponsored by the Future of Life Indus Institute, whose focus is on AI that benefits humanity rather than disenfranchising people. What does it look like for copyright owners, protectors, artists, creatives to use AI in a way that is additive and and protects themselves? and protects the creative community. I mean, what what yeah.

Keith Kupferschmid (57:52.573)
Yeah, I think there’s a lot of ways that authors and artists and others, creatives, can use AI in a very productive, helpful, respectful, responsible manner. I think the key is to just remember that AI is a tool, just like a camera is a tool if you’re a photographer, right? That AI is a tool, but you ultimately are at the controls, right? You were at the controls to decide.

Orlando (57:59.79)
Mm.

Orlando (58:04.343)
Mm-hmm.

Keith Kupferschmid (58:19.207)
kind of what you want to do with your creativity, what you want to create, and then use AI accordingly to help you create. But don’t put AI in the control room, right? I think that’s, to me at least, other people might disagree or have different views. I think ultimately that should be the end result. If you’re a creator, I don’t think you need to shy away from using AI, but do it in a responsible, respectful, ethical way where you were still at the helm, you’re the creator.

Orlando (58:48.821)
Mm-hmm. Mm-hmm.

Keith Kupferschmid (58:49.352)
But you use AI to help you. mentioned writer’s block. it’s a great way, mean, to use AI for ideation to help you get past that, some place you’re stuck and move forward. Terrific, terrific use of AI.

Orlando (59:00.578)
Mm.

Orlando (59:03.883)
Mm-hmm. Yeah. Yeah, it’s it feels like, but I also feel like, you know, part of it, and just for the experience of being a creator, like, yes, making everything easier is great, but a lot of the self-worth that comes from finishing a novel comes from the ways you had to battle with your own demons through your own writer’s block and your own feelings of insecurity and whatever else. And and you know, you know, so we do lose something when we lose friction.

and I know that’s not a copyright conversation, but it’s it’s something I think about a lot.

Keith Kupferschmid (59:35.763)
Yeah. Yeah, yeah.

No, you’re exactly right. mean, no matter what you do in life, there’s an amount of satisfaction that you as a human being get, right? When you had this, what seems like an insurmountable challenge or a challenge of any type, and you overcome that challenge, well, if you had to get AI or something else to assist you to overcome that challenge, maybe you don’t feel so great at the end of the day or feel as good certainly as you would have, but…

Orlando (59:45.282)
Mm.

Hmm. Yeah.

Orlando (59:53.355)
Yeah. Mm.

Orlando (01:00:00.994)
Mm.

Keith Kupferschmid (01:00:06.171)
I’ll stick to copyright because that’s what I know and I’ll leave the creative process up to the creators themselves to figure out what’s the kind of right percentage or right amount of use of AI.

Orlando (01:00:06.465)
Yeah.

Orlando (01:00:17.323)
Yeah. Yeah. Well, fair enough. sorry, I tried to pull you out of there for a second, but no. But thank you. I mean, Keith, thanks for spending this time with me. I so appreciate it. I think that this is one of the most interesting and important conversations to be having.

Keith Kupferschmid (01:00:22.673)
Hehehehehe

Orlando (01:00:38.189)
you know, in the face of this technology and by creative people and creative companies. And, you know, and I so appreciate deep diving in and and and I’ve learned so much. So thank you so much for taking the time to chat with me.

Keith Kupferschmid (01:00:50.42)
Yeah, well, thank you for having me. I love talking about the topic. Happy to, as you can tell, to talk about it. It is our biggest issue at the Copyright Alliance. And just to call out to anyone who’s listening to your podcast, to go to CopyrightAlliance.org. On our website, we’ve got a ton of different educational materials, lots and lots of material about AI and other things about copyright that if you’re a creator, especially, you might find very, very helpful.

Orlando (01:00:57.506)
Yeah.

Yeah.

Orlando (01:01:08.46)
Mm-hmm.

Orlando (01:01:14.018)
Yeah.

Orlando (01:01:18.327)
Fantastic. Well, that’s great. And I d to be honest, I’d love this has been so fun. I’d love to have you back like next year or like, you know, when some more of these cases shake out and AI is, you know, running the government from the Oval Office or whatever, whatever eventually happens. I suspect that this conversation will evolve and will remain incredibly important and incredibly relevant. So I’d love to have you back when

You and I can stay in touch. And if you go like, I think we’re at a threshold moment, we should chat again. I you you have an open door. I’d love to have you back.

Keith Kupferschmid (01:01:49.639)
Yeah, Yeah, no, I appreciate that. And you’re exactly right. As I said, we’re at the early days here. We could become pen pals, I think, because this issue is not going away anytime soon. And it’s just going to continue as these cases get decided and everyone tries to figure out what does that mean, right? And what does that mean for the next case that’s going to come down? That’s going to be the absolutely huge challenge that we’re all going to face, no matter what side of this equation you’re on.

Orlando (01:01:59.276)
Yeah.

Orlando (01:02:09.185)
Yeah. Yeah.

Orlando (01:02:18.005)
Yeah. So Keith, I’m gonna do my show biz goodbye. so just don’t shut your your web browser or your laptop after I do. Well, Keith, once again, that was great. I so appreciate it. I learned so much. Thank you for coming on the podcast. And hopefully I’ll see you again soon. And please let’s stay pen pal. Stay stay in touch. I would love, I love nothing more than to chat about all this.

Keith Kupferschmid (01:02:22.931)
Yep, yep.

Keith Kupferschmid (01:02:39.193)
Absolutely. Thank you very much for having me.

Orlando (01:02:41.784)
Pleasure. Anytime.