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Book a demoTech policy which is global not noble will shape the future of liability
Thoughts that courts would be left alone to rule on supersized tech firm misdeeds took a blow this week, with two incidents showing how strategic assets don't get treated like the rest of us
Much as it is fashionable and tempting to frame the world in terms of right and wrong, just and unjust, such thinking can be the enemy of clarity. "Is" and "Isn't" are both useful tools to use in less emotionally-charged consideration, and it is with this in mind that we digest this week's news that Google's advertising businessopoly isn't going to be broken up, and that the US government is supportive of OpenAI's "fair use" argument in the copyright case brought against it by the New York Times.
Two separate developments, neither particularly sunny as far as publishers are concerned. Much as they are separate, and will bear further discussion, first I feel it necessary to think about what unites them. Simply put, the United States stands as a global technological leader, with an economy so active, confident and dominant that other players such as the EU or UK can merely stand by and legislate as developments from elsewhere dictate the pace of change in their own public sphere.
Why would the US abandon this technological lead in the interests of some abstract notion as "fairness"? In the halls of American government, whether it is loved or not, Google is undoubtedly thought of as a strategic asset, simply through market dominance and data ownership. Regarding OpenAI, and the other big AI players from the US, again the US has clear competitive advantage, even if no-one has any idea where this particular machine-learning laid road goes into the future, it's still the future, and the future is generally thought as a good feature for an economy to have.
So this is the overarching environment of thought in which any US legal decision is made. That's just how societies work. Judges are not islands.
At the time of writing, we do not know what "behaviorial remedies" US District Judge Leonie M. Brinkema is going to order Google to undertake. Let's not forget, she was scheduled to deliver her ruling on the Google case in the first quarter of this year. The fact that it is now September tells us something about her deliberations. The US has a long and proud history of breaking up monopolies, yet Google is not a domestic business in the way that for example, AT&T were. Google is global. Even holding the US in high regard as I do, with fully half my life being there due to my personal relationships, I feel slightly nauseous when watching UK politicians attempting to bask in the reflected glory of any association with Mountain View, in the manner of a eunuch enjoying the favour of the Mandate of Technological Heaven. They wouldn't have done that with AT&T, and they don't do it for ExxonMobil.
Like many of you, I see the online advertising market as essentially rigged, but moreover, I believe advertisers and consumers are poorly served by it. You only have to refer to adverts which you yourself are personally served to gauge what an erratic and erroneous system currently dominates, and all I can think is that it is a model of lost revenue.
Yet, by escaping break-up, Google are beneficiaries of the current uncertainty over where the tech chips are going to land. That is to say. with the rapid progress of AI-enabled systems across the internet, Google can reasonably say that this court case brought against them by the US government for violating antitrust laws - of which, to remind you they were found guilty - was a case brought against a previous technical era, and not this one. There is no doubt of an extreme reluctance to penalise a leading US company with a truly global footprint at what is a technological tipping-point.
That point leads to us to OpenAI and the US government's slightly unusual intervention in a copyright case. The Department of Justice this week released a legal brief supporting Altman's outfit in the copyright case brought by the NYT - a case which has cost the NYT more than $30 million so far - arguing that using copyrighted material for AI training constitutes "fair use", the legal concept in US intellectual property law that allows others to use copyrighted work without licence.
Long-time readers will know we are not so surprised by this intervention, set against the considerations outlined above, and the clear opinion within government that AI is a battle, not a product suite. Given that the DoJ filing actually said: "Rules of law that make it significantly more difficult to develop a robust AI industry in the United States therefore threaten national security and give a competitive advantage to foreign adversaries who are not so encumbered", it may come as no surprise that such a brief was issued. This isn't about simple business, and this isn't the era of Atoms for Peace.
What longer term implications all this hoisting of drawbridges has for the creative and publishing industries are unknown, but at least we have a better idea how the land lies, and what considerations are informing opinion at the highest level.
