EFF urges courts to reject copyright expansion over generative AI hype

The Electronic Frontier Foundation (EFF) is intervening in multiple lawsuits to oppose efforts by rightsholders to rewrite copyright law in response to generative AI. These lawsuits argue that AI tools infringe copyright by enabling the creation of competing works, even when those works do not directly copy protected material. The EFF’s position is that courts should reject this expansion, as it would undermine the constitutional purpose of copyright: promoting new creative expression for public benefit.

The core dispute centers on the 'market dilution' theory, which claims that AI tools harm rightsholders by increasing competition. The EFF argues this theory misapplies copyright law, which is designed to punish infringement, not competition. If courts accept this argument, it could eviscerate fair use and other limits on copyright, giving rightsholders broad control over tropes, genres, and styles. This would create legal uncertainty for engineers and creators using AI tools to build on existing works.

Research cited by the EFF suggests that large generative AI models are unlikely to produce infringing outputs, as the influence of any single training example diminishes with scale. Additionally, AI tools are being used in diverse creative projects, from Afro-futurist art to dynamic music compositions, demonstrating their potential to augment human creativity rather than replace it. Courts are being urged to avoid preemptively restricting these tools, as their impact is still evolving.

The EFF draws parallels to historical copyright panics, such as those surrounding the VTR and camera, where new technologies were initially feared to destroy creative industries. In those cases, courts declined to expand copyright law, and the technologies ultimately enabled new markets and creative possibilities. The EFF argues that generative AI should be treated similarly, with courts resisting the hype and preserving copyright’s balance between protection and innovation.