In a recent public comment addressed to the United States Copyright Office, the Federal Trade Commission seemingly expanded upon remarks made at the National Advertising Division back in September that it will aggressively and proactively challenge alleged unfair practices involving artificial intelligence, even if that means stretching the meaning of “unfair” to increase its jurisdiction over such matters.
Generative AI has taken the world by storm since OpenAI launched ChatGPT in November 2022. But the buzz and excitement of GAI has come with difficult legal questions that threaten the new technology. Several lawsuits—some of which we have discussed in detail—have been filed against companies whose GAI products have been trained on copyrighted materials. Up until now, we have only been able to speculate how courts will handle GAI as the industry has held its collective breath.
While speaking at the annual conference of the National Advertising Division on September 19, 2023, the Federal Trade Commission (“FTC”) announced a generative AI (“AI”) policy that is consistent with Chairwoman Khan’s focus on the perceived harms to consumers from large technology companies, fully embracing a plan to regulate AI swiftly, aggressively, and proactively.
The agency began its remarks on AI by observing that its purported policy decision to allow technology companies to self-regulate during the “Web 2.0” era was a mistake. Self-regulation, according to the FTC, was a failure that ultimately resulted in the collection of too much power and too much data by a handful of large technology companies.