By: Nancy S. Kim*
Abstract
Generative AI raises foundational questions for copyright law. Companies use copyrighted works to train large language models, raising important issues regarding fair use, ownership, and the meaning of creation. Inevitably, companies will try to resolve these issues preemptively with adhesive terms referred to as terms of service (TOS). This Article examines how TOS have reshaped copyright and content ownership, and the implications for the future of AI created works.
Copyright laws permit the owner of a copyrighted work to assign, transfer, and license rights by agreement. Courts have concluded that if properly presented, TOS can be binding agreements even though consumers regularly fail to read the terms. Accordingly, companies may use unread TOS to assign, transfer, and license intellectual property rights.
The law of contracts as applied to TOS deviates from the traditional objectives and principles of contract law. These doctrinal deviations, outputs of the digital age, did not exist when Congress permitted the contractual transfer and assignment of intellectual property rights. Presumably, Congress did not anticipate the TOS that lurk everywhere in modern society and function as private legislation. The mass nature of TOS means that companies may alter intellectual property rights to their advantage on a mass scale. Furthermore, because adhesive terms are often used to govern the use of new technologies, their ability to establish and reallocate intellectual property rights is likely to affect innovation and competition. All of this undermines the purpose of intellectual property laws to “promote the progress of science and the useful arts” by providing an economic incentive to creators.
*Michael Paul Galvin Chair in Entrepreneurship and Applied Legal Technology, Chicago-Kent College of Law, Illinois Institute of Technology. Sincere thanks to Mark Lemley and Cathay Smith for valuable comments on prior drafts of this Article. All errors and omissions are mine alone. Thanks also to Ashlyn Browning, Colin Hitt, Katherine Owens, Drew Weglarz, and the other members of the Penn St. L. Rev. for their careful editing of this Article.