Matthew Butterick seems like a very normal guy. He wears a baseball cap, transparent glasses and a colorful sports jacket. Behind him are two vintage keyboards and synthesizers that add a bohemian touch to the basement of his Los Angeles home, which is also his office. “I have a collection of more than twenty,” he will later say in a video call with EL PAÍS. Nothing in this scene suggests that Butterick is a lawyer. Even less so than someone so far removed from the classic suit and tie stereotype has giants like Microsoft, OpenAI and Meta holding their breath.
The American has started a true legal crusade against generative artificial intelligence (AI). In 2022 he registered the first lawsuit in the history of this field against Microsoft, one of the companies that develop this type of tools (GitHub Copilot). Today he coordinates four class actions (class actions) that bring together lawsuits filed by programmers, artists and writers and that, if successful, could force the companies responsible for applications such as ChatGPT or Midjourney to compensate thousands of authors. Or they may even have to retire their algorithms and retrain them with databases that do not infringe intellectual property rights. “This is, for many of us, the fight of our lives,” she says. The first results of his efforts could arrive in a matter of months.
The newspaper The New York Times A few days ago, he took the same path as Butterick and has sued OpenAI and Microsoft for having used millions of articles from the newspaper without their consent to train their algorithms. It is the first media outlet to take this measure. “I can't comment on the case because I haven't read the lawsuit,” he says in a serious tone. “We were the first to sue Meta and OpenAI for training linguistic models with copyrighted material. We are not surprised that others have subsequently done so. My partner Joe Saveri and I have always viewed our cases and other litigation as one part of an emerging global conversation about how generative AI will coexist with human creativity. This race has just begun,” he adds.
2023 has been the year in which the world has known the potential of generative AI, which is capable of producing apparently original texts, images or music. This last nuance is important: the algorithms that make this possible are applied to gigantic databases made up of billions of documents, whether texts, illustrations or pieces of music. All of these works, without which automatic systems would be totally useless, have an author behind them who not only is not compensated for using their work, but may become unemployed as generative AI tools become more sophisticated. .
Butterick identified this danger in the summer of 2022, months before the emergence of ChatGPT. Born in Ann Arbor, Michigan, this 53-year-old American has made his living primarily as a typeface designer, programmer, and writer. “Like many other creators and artists, it has become clear to me that my work is doomed. It is now part of the training data of many generative AI systems. The next step is to get rid of us,” he says.
The first product that put Butterick on alert was Microsoft's GitHub Copilot, an AI-assisted software tool that trains with a host of open source software. Its launch sowed doubt among the programming community, he recalls. The difference between Butterick and the rest of those affected is that he decided to take action on the matter. He even dusted off the law degree that he obtained at the University of California, Los Angeles (UCLA) 15 years ago.
“After speaking with those affected, I concluded that this system is a violation of open source licenses and that it is not a benign tool. “It is designed to replace open source programmers, and I expressed this in my blog,” he notes. “Joseph Saveri, a lawyer I know who is a fan of my typography work, reached out to me and said, 'You know, the point you're making about GitHub Copilot is pretty interesting.' At the time I was not a practicing lawyer, so Joe and I embarked on an investigation and became convinced that there really was a case.”
In November 2022, Butterick and Saveri filed a lawsuit in the Northern District of California against Microsoft, owner of GitHub Copilot, alleging that it violates open license agreements. It was the first litigation on generative AI.
But programmers were not the only group that saw their jobs in danger. After filing the lawsuit, a group of visual artists approached the lawyer couple. “They told us: wow, that sounds similar to the problem we have. Would you be interested in taking our case?” This is how the process they opened in January 2023 against Stability AI (developers of Stable Diffussion), Midjourney and Deviant Art, the main generative AI tools applied to illustration, was conceived. In November, they submitted amendments requested by the judge. The process continues, just like that of Copilot.
The third group that Butterick and Saveri represent are book authors. In July, they filed two class-action lawsuits against OpenAI and Meta for including books written by plaintiffs, including Richard Kadri, Sarah Silverman, and Christopher Golden, in their training data set.
A very real threat
Illustrator Karla Ortiz realized the tsunami that was coming to her and her professional colleagues in the summer of 2022. This 38-year-old Puerto Rican can be considered a successful professional. She has worked for most of the major Hollywood film studios, including Marvel Studios, HBO and Universal Pictures, as well as video game production companies such as Blizzard and Ubisoft. Key characters from blockbusters such as Thor: Ragnarok, Doctor Strange either Jurassic World. But not even someone in her cache feels safe.
Ortiz began researching generative AI tools applied to illustration and soon recognized strokes of his colleagues in the drawings produced by the tool. “I was horrified to see that these platforms use your name, so that users can demand your style, and take your work to generate images that look like yours,” he explains by video call from his San Francisco studio. “At that moment I start to worry a lot. I am a member of the board of directors of the Conceptual Art Association of America, which brings together artists who work for the film and video game industry. “We decided to mobilize.”
Ortiz and two other colleagues became plaintiffs in the class-action lawsuit filed in January of this year by Butterick and Saveri against Stability AI, Midjourney, and DeviantArt. Her cause gained momentum when in July she was called to testify before the US Senate Intellectual Property Subcommittee to talk about the legality and ethics of AI. “That would have been inconceivable a year earlier. “The senators are taking seriously the fact that creators have their works taken away without their consent, without compensation and without credit,” notes Butterick, who accompanied his client to the Capitol.
“For illustrators, a traditionally important source of income is putting the ideas of producers and directors into images to show to studios. That activity has been literally erased by generative AI,” she says. “My job is at risk. It consists of showing ideas, and machines now do that very well. We artists cannot compete against those tools. “I had never worried about the future of my career until now.”
AI reaches the courts
The momentum generated by the class-action lawsuits filed by Butterick and his colleague has paved the way for more lawsuits. Earlier this year, Getty Images sued Stability AI for using images from its archive without permission. In September, two other groups of writers filed complaints against OpenAI. Bestsellers George RR Martin, John Grisham and Jonathan Franzen are among them. In October, several record labels, including Universal Music Group, sued Anthropic, a company created by former OpenAI workers, for training its algorithms with copyrighted materials. Hollywood actors' unions have not litigated, but they were on strike for months to improve their pay conditions and obtain guarantees that protect them against artificial intelligence. The New York Times just sued OpenAI and Microsoft for using millions of newspaper articles in ChatGPT training.
Butterick and Saveri know it's now or never. This wave of lawsuits basically says that generative AI is illegal. When this technology is fully established, it will be more difficult to go against the companies that develop it. But as the courts conclude that the training of algorithms is illegal, the blow to the big tech can be capitalized. They would have to start over and redo the databases. It would also be disastrous for them to have to license these databases, negotiating payments in exchange for permissions from each source from which they have drunk.
Is it too optimistic to think about that outcome? “That's happened before,” Butterick responds with a smile. “The FTC [el regulador de EE UU] “has investigated companies that used models based on private data and made them delete their databases and the algorithms and models built with them,” he explains. Cambridge Analytica, the consulting firm that used data from more than 80 million Facebook users to influence the 2016 presidential election, was the first company to suffer, in 2019, the FTC's new policy, dubbed “algorithmic destruction.”
In the EU, the European Regulation on Artificial Intelligence, whose final text is not yet public, but for which there is already political agreement, establishes the obligation for foundational models to comply with community copyright regulations. We will have to wait to see the fine print of the regulations to see how it is executed.
Butterick has put writing, design and programming on hold for almost a year to focus on the litigation he has open. He does it because he believes it is the right thing to do, but not just for that reason. “I have the firm conviction that if I don't stop my regular work and join these cases, I won't have anything left. When we presented the first lawsuit, that of Copilot, people looked at us as if we were crazy or Luddites,” emphasizes the American. “Barely a year has passed and no one doubts the tremendous effect that generative AI has on creative professions. This has just begun. “We have to set safeguards so that this technology does not end everything.”
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