Analysis: Why Musk and Dorsey want to ‘delete all IP law’
Jack Dorsey, the co-founder of Twitter and CEO of Square, posted a cryptic and drastic demand on Elon Musk’s X over the weekend: “delete all IP law.” The post drew a quick reply from Mr. X himself: “I agree.”
Musk’s laconic response amplified Dorsey’s post to his 220 million followers and sparked a debate over intellectual property that drew in a cast of characters including Epic Games CEO Tim Sweeney, tech lawyer and former vice presidential candidate Nicole Shanahan, novelist Walter Kirn, evolutionary psychologist Geoffrey Miller and the technologist and early Twitter developer Evan Henshaw-Plath, aka Rabble, among others.
It could all be dismissed as idle social media chatter if Musk didn’t have a track record of turning X posts into U.S. government policy via his prominent role in President Donald Trump’s administration, as reporting from The Washington Post recently explained. “The line between a random conversation on Twitter/X and actual government policy is thinner than it used to be,” TechCrunch’s Anthony Ha wrote.
Musk also oversees the U.S. DOGE Service, a government agency that has been making cuts to the federal workforce, including to the department that oversees patents and trademarks.
Serious policy idea or not, the concord between Dorsey and Musk highlights how the debate over AI and copyright law is coming to a head in Silicon Valley. How it’s resolved will have major ramifications for the tech companies, creative people and their livelihoods and the overall AI race.
The AI software that powers products like ChatGPT or Musk’s Grok chatbot was trained using huge numbers of images and text scraped from the public internet, much of it copyrighted. The tech companies argue using copyrighted material to build AI tools falls under the “fair use” exemption of copyright law because the outputs from those AI models substantially change the underlying art, music or writing.
But many people who make a living producing creative works disagree. Artists, authors, news organizations and filmmakers have all sued the AI companies, demanding they pay and ask for permission before using copyrighted works to make their AI.
The tech industry is recoiling, arguing that without the fair-use exception, developing new AI products will be too time-consuming and expensive, or even impossible.
OpenAI, in a submission to the White House last month, argued that if AI isn’t covered by fair use, the U.S. would be ceding control over the future of AI to China. If “American companies are left without fair use access, the race for AI is effectively over,” OpenAI wrote in its submission.
The tech industry has always had a complicated relationship with intellectual property laws.
The internet caused an earthquake when it went mainstream in the late 1990s and people began sharing songs and books freely. After years of lawsuits, Hollywood and the record industry made peace with tech and worked together to enforce digital copyright laws. Now the fight is heating up again, and tech titans are again demanding more permissive copyright laws.
The idea of deleting all intellectual property law is “a bit ridiculous,” given its roots in the U.S. Constitution and numerous acts of Congress, said Tiffany C. Li, a professor at the University of San Francisco School of Law. Drawing on English common law, the Constitution gave Congress the power to establish copyright and patents in order “to promote the progress of science and useful arts.”
There are legitimate arguments that IP law today is “too strictly enforced” in ways that limit creativity or broad access to new technologies or pharmaceuticals, Li said.
But weakening intellectual property protections would come with huge costs.
Those directly harmed would be artists, creators and inventors whose work could be copied or appropriated without compensation, Li said. There could also be downstream harms to society if fewer people and companies take the time and trouble to create new things, knowing they won’t be remunerated for it. And if the U.S. loosens its IP protections, other countries may respond by declining to enforce American companies’ intellectual property, opening the floodgates to counterfeit goods.
Musk has generally espoused a more open approach to copyright. His auto company, Tesla, pledged in 2014 not to sue other companies for using its trade secrets. Musk is currently suing OpenAI, arguing that it has abandoned its mission of making AI to benefit all of humanity by trying to shed its nonprofit status and become a more traditional moneymaking corporation.
The cuts directed by Musk’s U.S. DOGE Service have already hit the U.S. Patent and Trademark Office.
In February, Vaishali Udupa, the head of the USPTO, resigned, writing on LinkedIn that workers at the agency “face uncertainty amid unprecedented reductions and restructuring of the federal workforce.”
Trademark lawyer Josh Gerben wrote in a blog post soon afterward that if there are significant cuts to the USPTO, “The entire trademark system … will grind to a halt.”
Regardless of Musk’s actions, the fight is far from over. A flotilla of major lawsuits against OpenAI and other AI firms will go to trial throughout the rest of the year, even as the tech companies charge ahead with building new tools that rely on copyrighted work.