© Raindrops: February 2025 ©

Are you ready to lose your copyright?

Image courtesy of Natalya via Unsplash

This month’s issue is dedicated to Copyright. Because Copyright matters. A lot. More than you think, and in more ways than you might imagine. And most of all because it is under unprecedented attack from Big AI.

If you’d like the tl;dr, write this date in your calendar: this coming Tuesday, February 25. That’s the deadline for the UK’s public consultation on a legal governance framework for generative AI vis-à-vis copyright. Comments are open to anyone within or outside the UK. The significance of this opportunity should not, and cannot, be overstated. It means anyone on Earth can weigh in, not just the citizens of the Untied United Kingdom.

If you are a creator of any kind who values the concept of creative ownership, the right to your own creative work and expression, the ability to earn a living from your work, and the right to protection against theft or appropriation of your work, your voice is needed. Here’s more information on the consultation and how to submit your comments.

Please don’t swipe away before you take serious note of this limited window of time. We are all busy, frenetically so—overwhelmed with daily life, deadlines, personal and environmental crises, our government crumbling before our eyes, existential threats to some of our most basic freedoms. I regret to tell you that this, this battle to crush copyright, is yet another incoming tsunami to add to our list. But as with most disasters, be they manmande or of Nature’s doing, preparedness and advance notice draw the line between guaranteed catastrophe and a chance to redirect the arrow of progress.

Some commentators believe the UK government has already made up its mind and therefore it’s a lost cause to submit letters and comments. I, and many others, strongly disagree. Numbers do speak, and the more of us who submit, and insist our rights be protected, the more sociopolitical capital we will have collectively built up to take whatever next steps may be necessary to secure our rights as creators, in the event the government does pass legislation that runs counter to our copyright protections. And remember, too, that we are not alone. Members of Parliament are fighting for UK creatives—and by extension for all of us outside the UK.

“This consultation is a generational and existential threat to the combined creative industries.”

~ Ed Newton-Rex, CEO, Fairly Trained

To illustrate why it’s critical to safeguard our copyright protections, this issue of Raindrops walks you through a hypothetical copyright experience and highlights some of the high-profile lawsuits fighting for creative ownership rights.

You certainly don’t have to read on all the way to the end—all I hope is that you have already resolved to submit your comment and to follow the developments of this ruling.

Public Domain vs Public Availability

Copyright is just a little “C” in a circle. A three-quarter circle encased in a full circle, if you want to get typeface-technical about it. But it might as well be the Roman Colosseum, for all the battles now being fought within its rings. As of January, 38 copyright-related AI lawsuits have been filed here in the U.S. See this list compiled by the good people behind ChatGPT Is Eating the World.

Big AI loves to trot out the argument that the material they trained their LLMs on is or was “publicly available,” hoping that the public—us—will confuse that with “public domain.” Sorry to disappoint you, Big AI, but We The People aren’t as dumb as you’d like us to be. The two terms are sharply distinct:

Publicly available

“Information that has been published or broadcast for public consumption, is available on request to the public, is accessible on-line or otherwise to the public, is available to the public by subscription or purchase, could be seen or heard by any casual observer, is made available at a meeting open to the public, or is obtained by visiting any place or attending any event that is open to the public.”¹

Public domain

“A work of authorship is in the ‘public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.”²

As is made plain and clear, the concept of “public availability” has nothing to do with copyright or ownership, and therefore should not be confused with “public domain,” a concept that very much does have everything to do with copyright and intellectual property. Certainly a CTO of a high-profile AI organization should know the difference.

Big AI has also been clamoring non stop about “fair use.” It’s a term the AI companies are hoping will give them a “Get out of jail FREE” card. As defined by the U.S. Copyright Office, Fair use is “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” It’s broad and vague enough for AI companies to try ramming a wedge into the cracked-open door of copyrighted works, and that is the argument they’re using to justify their mass-scale theft of the intellectual property (read: ideas, creativity, expertise, effort, energy, time, and money) of creatives in all sectors ranging from the arts to publishing to music to movies.

But we creators are not having it.

Publishing: A hypothetical case study

Substack being a publishing platform, I figured it would be a natural place to higlight the publishing industry as one sector set to be upended if copyright protections are gutted. You are no doubt familiar with the high-profile copyright lawsuits from publishers now rolling thunder across the land, not least that of The New York Times lawsuit against OpenAI (and you might have heard of the suspicious death of its star witness-to-be, Suchir Balaji, who was found dead in his San Francisco apartment just days after he was named as a witness in the lawsuit.)

In December 2023, The New York Times filed a lawsuit against OpenAI and Microsoft for copyright infringement; a month later that lawsuit was merged with two other cases filed against OpenAI by additional news organizations.

It’s not the first time—back in 2020, media-tech conglomerate Thomson Reuters filed an AI copyright lawsuit against an AI startup. On February 11, US Circuit Court Judge Stephanos Bibas ruled in Thomson Reuters’ favor. Few bother to read the court cases themselves, or the summary judgments. But this one begins with a rather memorable statement:

'“A smart man knows when he is right; a wise man knows when he is wrong. Wisdom does not always find me, so I try to embrace it when it does—even if it comes late, as it did here.”

~ US Circuit Court Judge Stephanos Bibas

Copyright proponents hail this as a major victory—as well they should. Large publishers stand to lose a lot of revenue—and their employees their jobs—if they are unable to protect their ownership rights in, and generate income from, the material they produce and publish. But why should the individual writer care? Do you have the funds to hire a team of attorneys like those representing The New York Times and Thomson Reuters? I certainly don’t.

It’s critical that the larger fish retain their place in the sea—for they protect us, the smaller fish, from predators.

Granted, following legal cases does at times make your eyeballs rotate inexplicably heavenward. So let’s paint a more colorful picture.

You have a day job—you might be a project manager or retail clerk or flight attendant—but you’ve always had a knack for stories—they’re bursting from your pores. Not to mention your family’s incredible history: your writer friends constantly encourage you to write that book about your grandfather who backpacked all over Latin America in the 1940’s. Stories only you and your close family know—your grandfather has passed on and you want to immortalize his adventures. You spend untold hours… evenings, weekends, early mornings writing and editing, reading your grandfather’s letters, interviewing your brother, parents, uncles, and of course your grandmother, who’s still alive, bless her heart, and who’s got first-hand knowledge of some of the escapades.

A year later, 300-page manuscript in hand, you’re finally ready. You start contacting agents and independent publishers. (As too many of us know, that process can take a year. Or two.) Then a writer friend says, Hey this is great, you should serialize your book on Substack. You’re tempted but unsure that’s the best way—you’ve always dreamed of publishing a book the good old traditional way, in hardcover, with a press release and maybe a book tour. Heaven knows that’s like driving a horse and buggy these days. But still, you worry—If I post it and the work is publicly available, can anyone steal it?

Your writer friend recommends you register the book with the U.S. Copyright Office. The moment you write a book (you’re fixing an idea in tangible form), you are automatically granted copyright for that work, but for legal enforcement purposes, it’s recommended that you register it.

Ok, done. Your book is registered. Now you feel better about putting it out there. To make things even sweeter, you find an agent, and sell the book to a wonderful and supportive publisher. A year later, your book is out! No book tour, and you’re expected to do your own marketing, but by golly you’re a published author. Three years into the process, you’re still at your day job, but you’re elated and start work on your next book.

Now, should anyone lift your chapters off the pages of Substack, and publish your words without your permission—worse yet, passing them off as their own work, you’d likely have a solid legal case. A pain, a violation, and money out of your pocket for legal fees, but it would be doable and there would be precedent. But you’re not too worried about it—you’re not George R.R. Martin, after all.

Then generative AI hits the scene. Some of your co-workers start talking about this amazing tech that can spit out poetry, emails, even entire novels, in just minutes. Curious, you play with it yourself, and are cautiously blown away. For a moment you think… all that work and time and effort to get your book published… could you have done it much faster with ChatGPT?

Next thing you know, your name appears on a list of authors whose books have been scraped and used to train the LLMs. You start seeing blood-red vitriol all over social networks and forums, fierce debates between artists, writers, musicians, and the self-proclaimed pro-AI camp. Lawsuits start dropping—as does the income of a lot of artists whose names you recognize.

You start connecting the dots. Your book has been scraped, and your work is being used to develop a generative AI product that will not only make a few people very rich, but also rip the carpet of professional and economic possibility right from under you. Cursed double whammy.

You—and other, higher-profile authors—are furious. But you don’t know for sure how your work has been used to train the bot… how would you know if your words get regurgitated by a random prompt in some other country? Or, worse yet, your beloved grandfather’s tales get digested by the LLM, turned into “tokens,” and vomited (pardon me, outputted) back on screen in a variety of restrung sentences and paragraphs. Some retain a faint scent of your stories; others are mere narrative ghosts that no one can trace back to you.

You are completely and profoundly powerless—yet you can see right through the empty shreds of admonishments thrown your way. “Adapt or die!” “AI is the future, get on board or get left behind, lol!” It is nothing short of stunning to see the numbers of people blindly jumping on the bandwagon, parroting the hype of Big AI, to the latter’s joy and profit.

The only real chance you and millions of your fellow authors have now is that the courts will uphold copyright law and reel in the AI companies. Otherwise, the other options are to jump into the roiling red ocean, or leave the scene altogether.

Is it, though? Is it really the end of the line? Hell no. It’s the beginning of a new era of how we creators handle our work and our relationships with our readers, viewers, and listeners.. But only if we make it so.

If you’ve read this far and want to learn more, let me leave you with Ed Newton-Rex’s sobering LinkedIn essay on the topic of the UK consultation, from which I’ve also quoted above.

1. “Mediums of Publicly Available Information,” October 16, 2023. The OSINT Foundation, PDF available for download via this link.

2. United States Copyright Office website, accessed online at https://www.copyright.gov/help/faq/faq-definitions.html on February 15, 2025.