Every new creative technology triggers a copyright panic. In the 1980s the VCR was called “the Boston strangler” of the film industry. Before that, the player piano was going to destroy music composition, and cameras were going to kill portrait painting. None of it happened — photography ended up birthing entire new art forms like photojournalism.
The EFF’s latest DeepLinks essay argues the AI copyright wave is the same story, and courts should treat it the same way the Supreme Court treated the VCR: with skepticism about hype.
The essay is aimed at the legal fight playing out in cases like Concord Music v. Anthropic and the Mosaic LLM litigation, where rightsholders are pushing a theory called “market dilution”:
- The claim: building generative AI tools can’t be fair use, because the tools might encourage the creation of works that compete with what rightsholders own
- The problem: that’s not how copyright works — it punishes infringement, not competition
- The consequence: publishers would get veto power over any expression that might conceivably compete with their catalog — genres, tropes, styles included
EFF also knocks down two factual premises behind the panic. Research shows the more data a model trains on, the less any individual example matters to any particular output — generated images generally can’t be traced back to training data. And AI isn’t simply displacing creativity: the essay lists artists using it productively, from Afro-futurist portraiture to a documentary on Yugoslav war memorials to generative music that never plays the same twice.
The core argument is a principled one about general-purpose tools. Like the VCR, large language models have a huge range of legitimate uses, and courts shouldn’t decide in advance which tools “foster human creativity.” Copyright’s constitutional purpose is to promote the creation of expressive works — locking in existing gatekeepers’ profits serves neither the public nor individual artists.