Performers and ordinary humans are increasingly concerned that they may be replaced or defamed by AI-generated imitations. We’re seeing a host of bills designed to address that concern – but every one just generates new problems. Case in point: the NO FAKES Act. We flagged numerous flaws in a “discussion draft” back in April, to no avail: the final text has been released, and it’s even worse.  

NO FAKES creates a classic “hecklers’ veto”: anyone can use a specious accusation to get speech they don’t like taken down.

Under NO FAKES, any human person has the right to sue anyone who has either made, or made available, their “digital replica.” A replica is broadly defined as “a newly-created, computer generated, electronic representation of the image, voice or visual likeness” of a person. The right applies to the person themselves; anyone who has a license to use their image, voice, or likeness; and their heirs for up to 70 years after the person dies. Because it is a federal intellectual property right, Section 230 protections – a crucial liability shield for platforms and anyone else that hosts or shares user-generated content—will not apply. And that legal risk begins the moment a person gets a notice that the content is unlawful, even if they didn't create the replica and have no way to confirm whether or not it was authorized, or have any way to verify the claim. NO FAKES thereby creates a classic “hecklers’ veto”: anyone can use a specious accusation to get speech they don’t like taken down.  

The bill proposes a variety of exclusions for news, satire, biopics, criticism, etc. to limit the impact on free expression, but their application is uncertain at best. For example, there’s an exemption for use of a replica for a “bona fide” news broadcast, provided that the replica is “materially relevant” to the subject of the broadcast. Will citizen journalism qualify as “bona fide”? And who decides whether the replica is “materially relevant”?  

These are just some of the many open questions, all of which will lead to full employment for lawyers, but likely no one else, particularly not those whose livelihood depends on the freedom to create journalism or art about famous people. 

The bill also includes a safe harbor scheme modelled on the DMCA notice and takedown process. To stay within the NO FAKES safe harbors, a platform that receives a notice of illegality must remove “all instances” of the allegedly unlawful content—a broad requirement that will encourage platforms to adopt “replica filters” similar to the deeply flawed copyright filters like YouTube’s Content I.D. Platforms that ignore such a notice can be on the hook just for linking to unauthorized replicas. And every single copy made, transmitted, or displayed is a separate violation incurring a $5000 penalty – which will add up fast. The bill does throw platforms a not-very-helpful-bone: if they can show they had an objectively reasonable belief that the content was lawful, they only have to cough up $1 million if they guess wrong.  

All of this is a recipe for private censorship. For decades, the DMCA process has been regularly abused to target lawful speech, and there’s every reason to suppose NO FAKES will lead to the same result.  

All of this is a recipe for private censorship. 

What is worse, NO FAKES offers even fewer safeguards for lawful speech than the DMCA. For example, the DMCA includes a relatively simple counter-notice process that a speaker can use to get their work restored. NO FAKES does not. Instead, NO FAKES puts the burden on the speaker to run to court within 14 days to defend their rights. The powerful have lawyers on retainer who can do that, but most creators, activists, and citizen journalists do not.  

NO FAKES does include a provision that, in theory, would allow improperly targeted speakers to hold notice senders accountable. But they must prove that the lie was “knowing,” which can be interpreted to mean that the sender gets off scot-free as long as they subjectively believes the lie to be true, no matter how unreasonable that belief. Given the multiple open questions about how to interpret the various exemptions (not to mention the common confusions about the limits of IP protection that we’ve already seen), that’s pretty cold comfort. 

These significant flaws should doom the bill, and that’s a shame. Deceptive AI-generated replicas can cause real harms, and performers have a right to fair compensation for the use of their likenesses, should they choose to allow that use. Existing laws can address most of this, but Congress should be considering narrowly-targeted and proportionate proposals to fill in the gaps.  

The NO FAKES Act is neither targeted nor proportionate. It’s also a significant Congressional overreach—the Constitution forbids granting a property right in (and therefore a monopoly over) facts, including a person’s name or likeness.  

The best we can say about NO FAKES is that it has provisions protecting individuals with unequal bargaining power in negotiations around use of their likeness. For example, the new right can’t be completely transferred to someone else (like a film studio or advertising agency) while the person is alive, so a person can’t be pressured or tricked into handing over total control of their public identity (their heirs still can, but the dead celebrity presumably won’t care). And minors have some additional protections, such as a limit on how long their rights can be licensed before they are adults.   

TAKE ACTION

Throw Out the NO FAKES Act and Start Over

But the costs of the bill far outweigh the benefits. NO FAKES creates an expansive and confusing new intellectual property right that lasts far longer than is reasonable or prudent, and has far too few safeguards for lawful speech. The Senate should throw it out and start over. 

Section 1201 of the Digital Millennium Copyright Act is a ban on reading any copyrighted work that is encumbered by access restrictions. It makes it illegal for you to read and understand the code that determines how your phone or car works and whether those devices are safe. It makes it illegal to create fair use videos for expressive purposes, reporting, or teaching. It makes it illegal for people with disabilities to convert ebooks they own into a format they can perceive. EFF and co-counsel at WSGR challenged Section 1201 in court on behalf of computer science professor Matthew Green and engineer Andrew “bunnie” Huang, and we asked the court to invalidate the law on First Amendment grounds.

Despite this law's many burdens on expression and research, the Court of Appeals for the D.C. Circuit concluded that these restrictions are necessary to incentivize copyright owners to publish works online, and rejected our court challenge. It reached this conclusion despite the evidence that many works are published without digital access restrictions (such as mp3 files sold without DRM) and the fact that people willingly pay for copyrighted works even though they're readily available through piracy. Once again, copyright law has been used to squash expression in order to serve a particular business model favored by rightsholders, and we are all the poorer for it.

Integral to the Court’s decision was the conclusion that Section 1201’s ban on circumvention of access restrictions is a regulation of “conduct” rather than “speech.” This is akin to saying that the government could regulate the reading of microfiche as “conduct” rather than “speech,” because technology is necessary to do so. Of course you want to be able to read the microfiche you purchased, but you can only do so using the licensed microfiche reader the copyright owner sells you. And if that reader doesn’t meet your needs because you’re blind or you want to excerpt the microfiche to make your own fair use materials, the government can make it illegal for you to use a reader that does.

It’s a back door into speech regulation that favors large, commercial entertainment products over everyday people using those works for their own, fair-use expression or for documentary films or media literacy.

Even worse, the law governs access to copyrighted software. In the microfiche analogy, this would be microfiche that’s locked inside your car or phone or other digital device that you’re never allowed to read. It’s illegal to learn how technology works under this regime, which is very dangerous for our digital future.

The Court asserts that the existing defenses to the anti-circumvention law are good enough – even though the Library of Congress has repeatedly admitted that they weren’t when it decided to issue exemptions to expand them.

All in all, the opinion represents a victory for rightsholder business models that allow them to profit by eroding the traditional rights of fair users, and a victory for device manufacturers that would like to run software in your devices that you’re not allowed to understand or change.

Courts must reject the mistaken notion that draconian copyright regimes are helpful to “expression” as a general matter rather than just the largest copyright owners. EFF will continue to fight for your rights to express yourself and to understand the technology in your life.

Did you know Disney’s Steamboat Willie entered the public domain this year? Since its 1928 debut, U.S. Congress has made multiple changes to copyright law, extending Disney’s ownership of this cultural icon for almost a century. A century.

Creativity should spark more creativity.

That’s not how intellectual property laws are supposed to work. In the United States, these laws were designed to give creators a financial incentive to contribute to science and culture. Then eventually the law makes this expression free for everyone to enjoy and build upon. Disney itself has reaped the abundant benefits of works in the public domain including Hans Christian Andersen’s “The Little Mermaid" and "The Snow Queen." Creativity should spark more creativity.

In that spirit, EFF presents to you this year’s EFF member t-shirt simply called “Fix Copyright":

Copyright Creativity is fun for the whole family.

The design references Steamboat Willie, but also tractor owners’ ongoing battle to repair their equipment despite threats from manufacturers like John Deere. These legal maneuvers are based on Section 1201 of the Digital Millennium Copyright Act or DMCA. In a recent appeals court brief, EFF and co-counsel Wilson Sonsini Goodrich & Rosati argued that Section 1201 chills free expression, impedes scientific research, and to top it off, is unenforceable because it’s too broad and violates the First Amendment. Ownership ain’t what it used to be, so let’s make it better.

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