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The end of the information age?

I am getting increasingly tired of the hypocrisy being engaged in by big-tech, especially in the case of of Alphabet/Google.

Google runs the Gemini AI system that operates using an immense dataset that has been scraped from the internet. Chances are that if you've left a comment on a forum or social media then you have contributed to this data.

If you're someone who makes their living by creating content on the internet then it's almost certain that your hard work has been copied by Gemini and is now a part of the data it uses to provide answers to queries made by paying users of the service.

Are copyright owners getting paid for the use of their works in this way?

Hell no.

According to Google, this unlicensed use of copyrighted material is "fair use" but I'm not so sure and even if it is right now, that may be about to change.

"Fair Use" is a defense that can be used when someone is accused of breaching copyright and as such is can only be determined by a court of law. Google may claim fair use but ultimately it will be up to a judge to decide.

There are several factors that the courts take into consideration when considering the defense of fair use and these include whether the use is transformative, whether it it is likely to reduce the market for the original work and whether the user of the material is profiting from that use.

Right now it could be reasonably argued that when an AI system scrapes copyrighted material and uses it as part of a much larger dataset that then interprets it in a way that produces completely novel reponses to queries then it is definitely transformative.

The other two factors I've mentioned are perhaps a little more uncertain.

Right now for instance, many searches on Google have a brief AI summary at the top of the first results page. This summary is often far from comprehensive and the traditional search results are listed below.

In some cases the summary itself will be sufficient but in other cases you'll end up clicking on the links and visiting websites that satisfy the search criteria. When used in this manner, AI is not really depriving the original copyright owner of revenues because chances are they'll still get traffic from those search results due to the relatively short AI summary.

As for the third factor, well Google is definitely profiting from the use of material copyrighted by others. Without all that copyrighted material there'd be nothing for Google to list in its search results. However, this use is generally accepted by copyright owners because it constitutes a symbiotic relationship and a fair level of value-exchange. Google gets the ability to create a search result and the sites listed get the traffic that the resulting links produce.

So we have a situation where fair use is likely with a score of 2:1 in favour.

What is the change I hinted at that could skew that balance against the defense of fair use by AI companies?

Well there's definitely a move underway to all but completely replace traditional search engines with AI chatbots. If/when this happens then the response to a seach query will no longer be a list of links. Instead, it will be a comprehensive summary of information that has been gleened from all that copyrighted material which comprises the AI's training data.

When this happens the value-exchange between copyright holder and search engine is distorted and we can now clearly assert that the AI is using people's copyrighted material in a way that is likely to reduce the market for that material and thus deprive the owners of revenues.

Suddenly claims of fair use become far less credible and at this point I believe we may start to see more than a few law suits brought against AI companies by copyright owners. I would also expect quite a few of those lawsuits would be judged in favour of the copyright owners.

It's this risk of losing their fair use defense that will likely be the one thing that stops the likes of Google from simply totally replacing its search with an AI chatbot interface. Another possibility is that the courts require chatbots to provide links to any copyrighted material that was used in the creation of a query resonse. Unfortunately this becomes technically very difficult so we'll likely see the status-quo (mixed AI and traditional search results) remain the norm.

Another reason I'd hate to see traditional search results replaced by AI responses is that we would see a rapid and massive reduction in the amount of material published on the web if everyone started using a chatbot for their search queries. Who would go to all the cost of creating original material and publishing it if they knew that it would simply be scraped by an AI and integrated into its training material with no compensation. Once the public switched to using AI instead of traditional search then the flow of traffic to most websites would dry up, as would the ad revenues they previously generated.

No revenues = no new content.

End result: the enshitification of the internet grows at a hyperbolic rate with the only new content being that created by AI itself. Thus begins the start of a vicious feedback loop that would potentially bring the information age to its knees.

What is the solution?

I don't have one. There may not be one. We may just have to live in the knowledge that things will go downhill from here if we're not very careful.

What was the hypocrisy I was talking about at the top of today's column?

YouTube (another Google/Alphabet company) takes the stance that no use of unlicensed copyrighted material by its content creators constitutes fair use. YouTube claims that *it* can not legally determine if something is fair use, only the courts can do that. Contrast that with their position on Gemini's use of unlicensed copyrighted material, in that case they don't seem to think the courts matter at all and their own interpretation is all that matters.

Hmmmm...! Carpe Diem folks!

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