SFC Submits comments to US Copyright Office on Generative AI and Copyleft

SFC warns that “compulsory licensing” undercuts goal of copyleft

November 1, 2023

This week, Software Freedom Conservancy responded to the United States Copyright Office's request for comments to better understand how so-called generative AI systems present new challenges and concerns to copyright. SFC's comments, prepared primarily by our Policy Fellow, Bradley M. Kuhn and Director of Compliance, Denver Gingerich, addressed the unique issues raised in relation to copyleft-licensed materials and the implications of their use in training set materials.

SFC's submitted comments highlight how copyleft truly “promote[s] Progress in Science and the Useful Arts" (the phrase used in the United States Constitution that established copyright) and that copyleft licensing should be specifically considered in any rulemaking or legislation. Copylefted Free and Open Source Software (“FOSS”) uniquely creates a collaborative environment for creative production; SFC's comments call on policymakers to carefully consider how these conditions differ from typical corporate and business contexts for policymaking. Because copyleft licensing requires reciprocity, SFC asked the Copyright Office to understand that financial compensation for copyright holders does not properly advance the policy goals of copyleft, and by extension, the policy motivation of“promot[ing] Progress" . Furthermore, SFC's comments draw attention to the power imbalance between Big Tech and the actual producers of labor that has filled their trained models.

SFC drew specific attention to the questions regarding financial-focused “compulsory licensing”. Compulsory licensing has been used for automatic permissions on copyrighted works, such as musical compositions, using royalty payments to compensate copyright holders. SFC's comments specifically explain that when, as with copyleft, the policy goals of licensors are principled and encompass more than mere financial compensation, compulsory licensing fails as a remedy. SFC fears that, either through Congress or industry “self regulation”, compulsory licensing of software may become a tool to eviscerate copyleft. As pointed out in the comments, this is also among the reasons that SFC does not support finanically-motivated class action litigation against Big Tech.

You can view SFC's submitted comments in their entirety on our site, and they will be made public by the Copyright Office once processing of the comments is complete. If you are interested in other writings and programs about AI from the SFC staff we have convened an expert group on code generation tools, written about the harms and concerns of Generative AI for software development. SFC was also invited to speak alongside many activists in a broad area of creative fields at a recent FTC panel regarding “Creative Economy and Generative AI“.

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