Google's new "AI Overviews" may lead to massive legal liability (& section 230 may not immunize the search giant)
Maybe suggesting eating rocks to get your nutrients isn't the best idea ...
Wake up! Grab your coffee. It’s time for your weekly brAIn dump! First, “the AI:10” - 10 key AI headlines from last week. Next, your AI generated video of the week (another “must watch” that reveals the state of the art). Then, this week’s “mAIn event” (the headline story - Google’s “AI Overviews” self-inflicted wound?). Followed by, the “AI legal case tracker” - updates on key genAI copyright infringement cases. And then, a final toast with “the cocktAIl” - my special AI event mixology.
I. the AI:10 - the 10 key AI headlines from last week
(1) “To license, or not to license. THAT is the question!” Publishers and media companies are agonizing whether they should accept Big Tech’s IP licensing terms now (to use their content for training purposes), wait (in the hope of getting bigger bucks they deserve), or litigate (to right Big Tech’s wrongs of taking). Here’s a great scorecard from TheWrap of which media companies are doing what. My two cents? Follow the lead of The New York Times (and read its compelling legal complaint against Microsoft and OpenAI via this link).
(2) Big Tech finally begins to feel the heat and a political battle is brewing. As Congress dithers, California is taking matters into its own hands. State Senator Scott Wiener just introduced a new bill to enact what he calls “common sense safety standards.” The tech community isn’t too happy about it. Read more here via Bloomberg. And here’s a great summary by the National Association of Broadcasters (NAB) of what’s at stake, featuring my position about it all (i.e., unlicensed use of copyrighted works for AI training is infringement), together with expert Robert Tercek’s counter-argument on behalf of Big Tech.
(3) Even Sam Altman’s employees are turning against him. Several current and former OpenAI employees signed an open letter to tech companies asking for more transparency and protection from retaliation against workers who raise concerns about AI’s power. Read more about it here.
(4) Creators are also getting the message and now taking action. The Washington Post reports that artists are fleeing Instagram to keep their work out of Meta’s AI.
(5) Meanwhile, Big Tech steals a page straight out of George Orwell’s “1984.” Clearly reeling from all of that heat, doublespeak-named “Chamber of Progress” — a tech coalition with members including Meta, Amazon and Apple — just launched a new campaign called “Generate and Create” to, quote, “defend the longstanding legal principle of fair use under copyright law.” The only problem is that these “damn the torpedoes” tech bros have it backwards, and it’s up to the media and entertainment industry to defend the sanctity of copyright. You all know where I stand on that point. Read more about it all here via The Hollywood Reporter.
(6) Drumroll please … will Apple destroy more Art and creative hearts this week? All eyes are on Tim Cook TODAY!, as he finally gives his big “AI reveal” at Apple’s annual Worldwide Developers Conference. Hopefully, his team has learned a lesson (or 10) from its iPad “Crush” debacle. Read more about how Apple hopes to leverage AI to get back to its dominating ways via Business Insider.
(7) Oh Ashton! Apple wasn’t the only one that crushed Hollywood in the past few weeks. Actor/tech investor Kutcher didn’t exactly endear himself to his entertainment friends when — speaking at an event with former Google CEO Eric Schmidt — he questioned why anyone would create an establishing shot in the real world when generative AI can do it for $100. The reality is that Kutcher isn’t the only one in Hollywood thinking the same thing. He just said the quiet part out loud. Read more about this bruhaha here via Deadline.
(8) “It’s inevitable,” says legendary filmmaker George Lucas (agreeing with Kutcher). And he’s not talking about the usual two things of death and taxes. It’s about filmmaking. And he says there’s no stopping the rise of AI in his craft. Read more about it here. Of course he’s right. But here’s my P.S. It must be done ethically and legally. That’s my fundamental “beef.” It’s not about stopping AI. It’s about locking in fundamental guardrails, including respect for copyright.
(9) OpenAI’s Sora AI video generator isn’t alone. Yes, it steals all the headlines, but a whole host of video startups — including tech unicorn Synthesia — are playing in that sandbox as well. Do they have a chance against Microsoft’s (I mean, OpenAI’s) billions? Read the list of these generative AI video startups here via The Information.
(10) Not exactly a love letter from Sony Music. The music giant sent letters to 700 AI and streaming companies asking them to change their AI tune, giving notice that it was “opting out” of AI training on their IP. Oh yes, and there’s this. Sony also asked the companies caught in its web whether they had used any of their creative works in their training to date (& to preserve evidence in that regard). Read more about it here.
BONUS FUN FACT: was pleased to see that LinkedIn featured my AI “fair use” musings to the entire LinkedIn community this past Friday. You can check it out here.
[NOTE TO READERS: My goal is not to stoke fear about AI. Rather, it’s to be stoic about this new technology that will transform media and entertainment, point out the need to do it both legally and ethically, and then encourage everyone to take action - including advocacy.]
II. your “must watch” AI generated video of the week
Leading AI and experimental filmmaker Paul Trillo — one of the key creative forces and voices in the world of AI generated art — showcases genAI filmmaking’s state of the art with one of his latest works, “Notes to My Future Self.” Watch it via this link or click on the button.
III. “the mAIn event” — Google may have unwittingly opened the door to massive legal liability with its new “AI Overviews” search feature (& section 230 may not save it)
(alternative title to this article, “Let them eat rocks! Even Napolean wouldn’t dare to say what Google AI Overviews just did”)
Google may have just opened a Pandora’s box with its new “AI Overviews” feature, the company’s new AI generated one paragraph summaries that now frequently appear first in its search results. The reigning champ of search rushed it into the AI market in an attempt to beat back AI market leader OpenAI/Microsoft and new competitors like highly touted Perplexity. Apart from Google’s feature not being ready for prime time – suggesting eating rocks to get your daily protein fix, for example – it also potentially exposes the search giant to massive legal liability when users take its advice literally and eat those rocks (or take whatever other actions based on AI Overviews that are plainly wrong, which they reportedly frequently are).
Big Tech internet companies have always relied upon Section 230 of the Communications Act to immunize them from legal liability for problematic content posted by others. Congress established that legal safe harbor at the dawning of the Internet to promote innovation by taking away the resource depleting burden of policing third party content. But with AI Overviews, Google no longer can hide under that ruse. Now Google -- through the AI technology it built -- is directly responsible for the specific AI Overview content that top its results and may, or may not, be accurate. That’s why rock eating users may have strong product liability type claims against the search giant. And that’s just one example. Imagine the endless stream of others coming down the pike, because they almost certainly will.
When introducing the new AI Overviews feature, Google itself touted the fact that users no longer would need to scroll through traditional search results, literally saying “let Google do the Googling for you.” So if Google tells its users to buy what it is selling and they understandably let go of the reins, why shouldn’t they be able to go after the search giant for the damage caused by their reliance? That belief would be absolutely reasonable.
As if that’s not bad enough, Google already has been widely criticized by publishers and the creative community in general for essentially stealing their livelihoods with AI Overviews. Users are led to believe that those paragraphs – based on Google’s scraping or wide swaths of publisher content -- may be all they need without the need to peruse multiple links and visit any of the third party sites that fueled them. That transformed dynamic creates a new search world order that upends the long-standing one upon which publishers relied as part of the original deal to make their content searchable. Google literally said the quiet part out loud. It essentially conceded its quest for market substitution – not particularly smart while the company finds itself under the antitrust microscope.
We shouldn’t feel sorry for Google, of course. It’s held a monopoly on search for decades, arguably stifling innovation for consumers in the process. And the company – which essentially invented generative AI – certainly has the resources to correct course here. But Google’s continuing string of generative AI gaffes (remember its “woke” Gemini image generating launch?) is baffling and certainly doesn’t build confidence in its brand. Much has been written about that part of the equation.
This potentially limitless liability issue at the artificial hands of AI Overviews, on the other hand, hasn’t gotten nearly the attention it deserves. Perhaps this shouldn’t be surprising, because legal liability isn’t nearly as “sexy” as press coverage of Google blackening its eye with yet another flawed product rollout that featured amusing, yet brand bruising, “eat rocks” stories. For Google (and all other generative AI companies), perhaps Section 230 – or lack thereof -- is the headline story (apart from copyright infringement) they should take most seriously, especially since it’s fair to ask whether it’s even possible for AI to always generate a single fully accurate response. But judging by my recent conversation with one high level Google AI executive, I don’t think that memo has been widely received. I could see the wheels turn in this executive’s head when I mentioned it.
That may be changing fast though. It was just reported that the number of search results that feature AI Overviews has dropped from 27% to 11% in the past few days.
Google clearly has lost a step (or several) in this generative AI “spAIce race” and finds itself on its heels as it tries to catch up to Microsoft/OpenAI and others. And panicked product proliferation previously has produced pernicious product liability.
This time, Section 230 may not stop it.
NOTE: It’s worth repeating: For Google (and all other generative AI companies), perhaps Section 230 – or lack thereof -- is the headline story (apart from copyright infringement) they should take most seriously, especially since it’s fair to ask whether it’s even possible for AI to always generate a single fully accurate response.
(Feel free to send me your ideas of generative companies that are doing it “right” so that I can feature them - and any other feedback - to peter@creativemedia.biz).
check out Creative Media and our business & legal services (and how we can help you and your company)
IV. the AI legal case tracker - updates on key AI litigation
I lay out the facts - and the latest developments - via this link to the “AI case tracker” tab on “the brAIn” website. You’ll get everything you need (including my detailed analysis of each case). These are the cases I track:
(1) The New York Times v. Microsoft & OpenAI
(2) Sarah Silverman, et al. v. Meta
(3) Sarah Silverman v. OpenAI
(4) Universal Music Group, et al. v. Anthropic
(5) Getty Images v. Stability AI and Midjourney
NOTE: Check out the “AI case tracker” tab at the top of the page at “the brAIn” website.
V. the cocktAIl — your AI mix of “must attend” AI events
After all, it’s always happy hour somewhere!
(1) UPCOMING IN JULY - Digital Hollywood’s first generative AI-focused virtual summit, “The Digital Hollywood AI Summer Summit,” (July 22nd - 25th). I’ll be moderating two great sessions. Learn more here via this link. It’s all entirely free!
(2) Check out my Digital Hollywood AI roundtable sessions to prep for the upcoming AI Summit. You can watch them here via this link, where I interview leading artists like Stewart Copeland of legendary band The Police about how artists feel about generative AI - and leading innovators in the world of media, entertainment and generative AI.