NO FAKES – A Dream for Lawyers, a Nightmare for Everyone Else

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Performers and ordinary humans are increasingly concerned that they may be replaced or defamed by AI-generated imitations. We’re seeing a host of bills designed to address that concern – but every one just generates new problems. Case in point: the NO FAKES Act. We flagged numerous flaws in a “discussion draft” back in April, to no avail: the final text has been released, and it’s even worse.  

NO FAKES creates a classic “hecklers’ veto”: anyone can use a specious accusation to get speech they don’t like taken down.

Under NO FAKES, any human person has the right to sue anyone who has either made, or made available, their “digital replica.” A replica is broadly defined as “a newly-created, computer generated, electronic representation of the image, voice or visual likeness” of a person. The right applies to the person themselves; anyone who has a license to use their image, voice, or likeness; and their heirs for up to 70 years after the person dies. Because it is a federal intellectual property right, Section 230 protections – a crucial liability shield for platforms and anyone else that hosts or shares user-generated content—will not apply. And that legal risk begins the moment a person gets a notice that the content is unlawful, even if they didn’t create the replica and have no way to confirm whether or not it was authorized, or have any way to verify the claim. NO FAKES thereby creates a classic “hecklers’ veto”: anyone can use a specious accusation to get speech they don’t like taken down.  

The bill proposes a variety of exclusions for news, satire, biopics, criticism, etc. to limit the impact on free expression, but their application is uncertain at best. For example, there’s an exemption for use of a replica for a “bona fide” news broadcast, provided that the replica is “materially relevant” to the subject of the broadcast. Will citiz

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