Talkin' 'Bout AI Generation

"Does generative AI infringe copyright?" is an urgent question. It is also a difficult question, for two reasons. First, "generative AI" is not just one product from one company. It is a catch-all name for a massive ecosystem of loosely related technologies. These systems behave differently and raise different legal issues. Second, copyright law is notoriously complicated, and generative-AI systems manage to touch on a great many corners of it. They raise issues of authorship, similarity, direct and indirect liability, and fair use, among much else. These issues cannot be analyzed in isolation, because there are connections everywhere. We aim to bring order to the chaos. To do so, we introduce the generative-AI supply chain: an interconnected set of stages that transform training data into generations. The supply chain reveals all of the places at which companies and users make choices that have copyright consequences. It enables us to trace the effects of upstream technical designs on downstream uses, and to assess who in these complicated sociotechnical systems bears responsibility for infringement when it happens. Because we engage so closely with the technology of generative AI, we are able to shed more light on the copyright questions. We identify the key decisions that courts will need to make as they grapple with these issues, and point out the consequences that would likely flow from different liability regimes. This article is a much-abbreviated version of a forthcoming law review article at The Journal of the Copyright Society.