Understanding the NO FAKES Act

The past week has been an important one when it comes to legislation surrounding AI deepfakes.

First, the United States Copyright Office (USCO) released the first part of its Copyright and Artificial Intelligence report. Entitled Part 1: Digital Replicas, the report focuses on using AI to replicate the appearance, voice or style of existing people.

To that end, the report rejects the idea of using copyright to protect a creator’s style. However, the report does acknowledge the serious threats and challenges creators face with deep fakes. Specifically, it highlights the patchwork of state laws that govern this space and calls for federal legislation to address the issue.

As if on cue, four senators proposed the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, which had been circulating for months. The act would create exactly that kind of federal law and supersede state laws in this space.

The act would make individuals or companies liable if they knowingly created or distributed unauthorized digital replicas. It would also punish platforms hosting such content if they had actual knowledge of the infringement and didn’t remove it.

The NO FAKES Act does carve out some exceptions, such as using a digital likeness in news or criticism. The Act also doesn’t place restrictions on “products and services capable of producing digital replicas” unless those services intentionally produce such deep fakes.

Content creators, including musicians and actors, broadly support the bill. However, critics say that the bill goes too far and may risk creating legal uncertainties.

But this raises a question: If the bill is passed, what impact will it likely have? The answer is complicated.

Comparison to Copyright

The NO FAKES Act is getting compared a great deal to copyright, and for good reason. The bill creates a new intellectual property right based on one’s digital likeness that mirrors copyright in many ways.

1. Term: Where copyright lasts the author’s life plus 70 years, the digital replica right would last the individual’s life plus a time between 10 and 70 years.
2. Exemptions: Where copyright has fair use, the digital replica right would also have a narrow band of deliberately vague exemptions.
3. Termination: With copyright, content creators can terminate copyright licenses or transfers after a set amount of time. Meanwhile, the NO FAKES Act says a digital replica license cannot have a term of more than 10 years. That number drops to 5 if the person is a minor.
4. Notice-and-Takedown: Under the NO FAKES Act, hosts would have a similar obligation to what they have now under the Digital Millennium Copyright Act (DMCA). The notice-and-takedown regime would work very similarly to the DMCA in practice.
5. Section 230: Section 230 of the Communications Decency Act provides broad protection to hosts when their users break the law. However, intellectual property (including copyright) is an exemption to that protection. The NO FAKES Act classifies itself as intellectual property under Section 230.

In short, the act creates a digital replica right and uses copyright as a template for how it will be enforced and how long it will last.

To be clear, this is a significant improvement, especially for public figures. As the one-pager for the bill highlights, we are already seeing deep fakes generating significant revenue on YouTube and being used in advertisements.

Right now, those whose likenesses are used have little to no recourse. The patchwork of state laws leaves significant gaps in coverage and makes enforcement impractical.

In that light, the NO FAKES Act gives individuals at least some enforcement power. However, to say that this would stop deep fakes is, at best, woefully naive.

The Challenges Ahead

Since the NO FAKES Act borrows so heavily from copyright, we can look to copyright to see what challenges might lie ahead.

The first and most obvious challenge is international infringement. In this space, digital replica rights would have it worse than copyright. With copyright, rightsholders have a slew of international treaties providing at least some support. The NO FAKES Act, if passed, would be just a US law.

This would have no impact on those who make deep fakes in other countries. While we may see international cooperation in this space in the future, it’s simply too new right now. Any such treaty is likely years down the line.

However, even within the US, the notice and takedown regime has frustrated many copyright holders. While it provides a simple and quick lever to remove allegedly infringing material, it is also an ongoing process.

Many rightsholders spend significant time and money filing takedown notices. For them, it’s a neverending treadmill of infringement. This would likely be the same but possibly worse. Tools like Content ID that help detect infringement and proactively block infringement would have limited use in spotting new deep fakes.

Finally, while is nice, as we’ve seen in copyright, it’s not always practical. When large companies infringe, or there’s otherwise hope of collecting massive damage, litigation makes sense. But, as with copyright, many of the infringers will be individuals.

The Copyright Claims Board (CCB) is a copyright small claims “court” that addresses some of these issues when dealing with copyright. However, there will be no CCB for digital replicas, and litigation will often be completely impractical.

Bottom Line

To be clear, none of this is to say that the NO FAKES Act is bad or shouldn’t be passed. The act takes some major steps in streamlining the enforcement of these rights and empowering people to protect their image from AI-generated deep fakes.

However, enforcement will still be difficult. Furthermore, without international cooperation, its potential impact is unclear.

Though copyright does provide a reasonable template for such an act, it’s also important to note copyright holders’ struggles with enforcement. There needs to be a discussion about how best to fill in those gaps.

Though the conversation around copyright often gets deeply personal, we are discussing actual people here. Nothing is more personal to someone than their likeness. The copyright template can provide guidance, but it’s not a perfect analogy.

Still, we have to start somewhere and this seems about as good as anywhere.