Legislative efforts to protect individuals from a scourge of deepfakes online err by equating rights of publicity over personal likeness to those for intellectual property and could limit free speech as well as access to knowledge, according to the Association of Research Libraries.
One such potential vehicle -- the No FAKES Act -- was introduced as a discussion draft in July by a bipartisan group of senators including Amy Klobuchar (D-MN) and Marsha Blackburn (R-TN).
On Jan. 9, Blackburn touted the legislation on TV as a “big priority.” And now there’s also an actual bill. In the House, Reps. María Elvira Salazar (R-FL) and Madeleine Dean (D-PA) have introduced the No Artificial Intelligence Fake Replicas And Unauthorized Duplications Act.
Tech industry advocates have already criticized the bill as “a legal steamroller” for its use and definition of terms such as “personalized clone.” But as pressure mounts to harmonize a “patchwork” or state-level right of publicity laws, opposition from groups like libraries provides more insight for future attempts to protect individuals from harmful digital impersonations made increasingly prevalent with generative artificial intelligence.
“We see some of these proposals as trying to get around the protections of Section 230, so I think that's concerning,” Katherine Klosek, ARL’s director for information policy and federal relations, told Inside AI Policy. “If you create new federal intellectual property rights, then they fit into the 230 carveout and therefore libraries could lose those protections."
Both the No AI FRAUD Act and the No FAKES Act would establish an individual’s likeness as a property right, enabling them -- or whoever holds a license to it -- to enforce those rights against unauthorized uses in court.
Section 230 refers to provisions in the Communications Decency Act that immunize interactive computer services from liability for content created by their users. The law makes an exception for federal intellectual property provisions, which is why platforms like YouTube adhere to relevant take-down requests and generally seek to avoid violations.
But libraries are among those providing interactive computer services, and in response to policy deliberations during a July hearing on the issue in the Senate Judiciary committee, ARL urged Congress to avoid any confusion by making it “Clear That Section 230 of the Communications Decency Act Immunizes Libraries and Other Interactive Computer Services from Right of Publicity Claims.”
“To ensure that Section 230 continues to promote free speech online, Congress should make clear that any publicity right it adopts is not a federal IP right and does not fall within Section 230(e)(2),” Klosek wrote in July. “If interactive computer services become liable for their users’ actions, they may be forced to pre-screen third party content, or simply refuse to host user-generated content at all.”
That would “pressure libraries to monitor and restrict patrons’ use of web services, contrary to libraries’ commitments to privacy, free expression, and access to knowledge,” she wrote.
Klosek’s response to the July hearing emphasized that copyright law only applies to “creative works,” which a likeness is not.