George R.R. Martin joins authors suing OpenAI for “mass-scale copyright infringement”

AI is having a moment. Actually, it’s been having a moment for around a year. Services like ChatGPT, created by OpenAI, can write reams of text with simple prompts, while tools like MidJourney can create visual art based on a few suggestions. Are we at the point where machines can do the job of artists?

There are a lot of unanswered questions about AI: morally, financially, legally. Zeroing in on that last one, OpenAI is facing proposed class action lawsuits from the likes of author Paul Tremblay and actor Sarah Silverman. The claims, essentially, boil down to OpenAI reading books that Tremblay and Silverman wrote and then using the contents to improve the performance of ChatGPT, all without getting permission from the authors or licensing the books. Programs like ChatGPT only work because they hoover up lots of text written by humans. Should those humans not be compensated or be able to opt out?

Meanwhile, artists have sued AI art generators like Stability AI and Midjourney. It’s pretty clear that judges are going to have to draw some lines very soon over what these AI programs can and cannot be allowed to do. Expect some courtroom battles. And A Song of Ice and Fire author George R.R. Martin is officially joining the fight.

George R.R. Martin, John Grisham and other authors sue OpenAI

According to The Hollywood Reporter, the Authors Guild — which is led by authors like George R.R. Martin, Jonathan Franzen and John Grisham — has sued OpenAI. They accuse the company of engaging “in a systematic course of mass-scale copyright infringement” to “power their lucrative commercial endeavor.”

Once again, the argument is that generative AI tools infringe on work created by human beings without getting permission from those human beings or compensating them. While it’s hard to know exactly what books OpenAI has in its dataset, the Authors Guild point to the ability of ChatGPT to effectively summarize and analyze several books by — for example — Jonathan Franzen as proof that OpenAI has crawled his work without permission.

These summaries, the authors say, are infringing works that interfere with the author’s ability to profit off of their books. That might not be as big of a problem if OpenAI licensed the novels, but that hasn’t happened. In several lawsuits, authors argue that the datasets were obtained from illegal shadow library sites like Library Genesis, Z-Library and Bibliotik.

Can ChatGPT really replace A Song of Ice and Fire?

The argument about generative AI creating infringing works may be in anticipation of a fair use defense mounted by OpenAI. Essentially, OpenAI will claim that what ChatGPT does with the work it absorbs falls under fair use and is therefore not in violation of copyright law. One of the elements of a fair use defense is whether the allegedly infringing work has any effect on the market value of the original work. In other words, can ChatGPT write A Song of Ice and Fire knockoffs so satisfying that people won’t need to buy the original anymore? If it can, then a fair use defense would be less likely to stand up to judicial scrutiny, and the authors will win their case.

I see what the authors are arguing, but I don’t think it’s a clear-cut case. One fan used ChatGPT to write a version of The Winds of Winter, the long-awaited sixth book in George R.R. Martin’s book series. While that experiment produced a lot of text, pretty much none of it read like A Song of Ice and Fire to me. I think the technology is further away form replacing authors than people fear.

Then again, that version of The Winds of Winter clearly knew the basics of who these characters are and vaguely the sorts of things they get up to, which suggests that OpenAI has read and repurposed Martin’s book without permission or compensation. Does that deserve legal regress? Should lines not be drawn? What will happen when someone actually does a publish a book written by AI and it becomes a hit? What books by human authors did the AI draw on to create this new work? What, if any, consideration do they deserve?

Game of Thrones creator George R.R. Martin sues ChatGPT developer OpenAI

These are thorny issues the courts will have to deal with. In its suit, the Authors Guild will likely rely on the Supreme Court case Andy Warhol Foundation for the Visual Arts v. Goldsmith, which was decided earlier this year. In that case, the justices voted 7-2 to limit the application of the fair use defense, suggesting it will probably be rejected if the original and derivative work share the “same or highly similar purposes” or compete in the same market. That’s pretty much exactly what the Authors Guild is arguing that the work created by ChatGPT does, although again, I don’t think we have really good examples of that…not yet, anyway.

I wonder if a comparison to fan-fiction is apropos here. Fan-fiction authors write stories that could, in theory, displace demand for the original work. But as long as fan-fiction isn’t used to make money, authors mostly leave it alone. Again, so far as fiction writing goes, the real test case for generative AI may come when someone actually tries to write a novel with it, and that novel is successful enough for anyone to care. So far, that hasn’t really happened.

But we’ll see what goes down as these cases make their way through the courts. Ed Klaris, an intellectual property lawyer and professor at Columbia Law School, thinks the Authors Guild has a good chance of success. “This is a huge intellectual property grab that the AI companies are doing,” he said. “It’s going to get reined in.”

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