It’s always a challenge in public policy when there is an apparent conflict between two reasonable positions. Eventually, these conflicts get worked out through the legislative or administrative process, but that can take a while at government speed, which could mean harm in the meantime. That’s why, for instance, we have injunctions—to prevent harm to a party while a dispute is being adjudicated.
A current dispute is the regulation of “artificial intelligence” (AI), better referred to as large language models (LLMs). These models include names you recognize, but also many more purpose-built models designed to perform specific business and industrial tasks much faster and more accurately than humans.
The potential of LLMs should not be a surprise, as the value of a new tool is not a surprise. Already, many are using LLMs as valued assistants in their work and daily lives.
Of course, there are concerns about LLMs, about AI taking over the world, killing or harming humans, destroying jobs, embodying racism or antisemitism. But the concerns we most hear about are straight out of science fiction. (Yes, we’re aware of the recent Grok incident.)
An immediate concern is something much less sensational: Copyright. Those behind the LLMs have been quite cavalier about their use of materials protected by copyright to train their models. Already a court has found that use of copyright material for training LLMs is fair use, but unauthorized access to the material was piracy and subject to statutory damages. Other cases will of course follow.
Deciding how LLMs fit within our existing laws, or making new laws, is a process and will happen. But one thing that could bollix things up in the meantime is a patchwork of differing and conflicting state LLM regulations.
These technologies are inherently interstate in nature and thus should be regulated at the federal level as per the Commerce Clause. That’s why the penultimate version of the “One Big Beautiful Bill” contained a federal preemption of state AI regulation. But it was stripped out at the last minute at the demand of Sen. Marsha Blackburn, a fierce advocate for copyright.
Making life difficult for AI companies with state regulation is harassment, not sound policymaking. It creates friction for AI innovation, which is what opponents of AI and “Big Tech” want.
Copyright is a federal matter, and AI is interstate commerce, so both should and will be determined at the federal level. Between Congress, the courts, the Federal Trade Commission and the Copyright Office, rules will be written, cases will be adjudicated, injunctions will be requested, and damages will be assessed.
We still need a federal moratorium on state AI regulation until Congress and the courts establish clear rules that protect property rights while otherwise not restricting AI innovation.