California A.B. 412: Innovation & Fair Use Win
California’s AB 412: A Win for AI Innovation and the Open Web
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California’s Assembly Bill 412, a piece of legislation that threatened to stifle innovation and penalize small developers in the name of AI “openness,” has been substantially delayed. reclassified as a two-year bill, it will not advance in 2025. This outcome represents a crucial victory for the principles of innovation, freedom to code, and the health of the open web.
EFF’s Stance Against AB 412
The Electronic Frontier Foundation (EFF) actively opposed AB 412 from its inception. The bill’s core aim was to regulate generative AI,not through a lens of public interest,but by imposing mandates for training data “reading lists.” This approach was widely seen as a thinly veiled attempt to facilitate new copyright lawsuits, many of which are initiated by large content corporations.
While the goal of transparency in AI development is commendable,AB 412 offered a flawed and ineffective pathway to achieve it. the legislation placed an untenable burden on companies, both large and small, by requiring them to distinguish between copyrighted and non-copyrighted content. The penalties for non-compliance were severe, creating an habitat that would have disproportionately benefited the largest AI companies while effectively freezing out smaller, non-commercial developers. These smaller entities are often at the forefront of developing AI for public good,focusing on areas like accessibility,privacy,and identifying AI-related harms.
The Bill’s Disregard for Fair Use
A critical flaw in AB 412 was its direct challenge to established fair use principles. The question of whether and to what extent AI training constitutes fair use is currently a subject of active litigation in federal courts. Significantly, recent judicial decisions have leaned towards recognizing AI training as fair use. A landmark case, Bartz v. Anthropic, saw a federal judge rule that AI training work is ”transformative-spectacularly so,” drawing parallels to how search engines utilize copyrighted material to provide valuable search results.
Copyright law is a matter of federal jurisdiction. When individual states attempt to unilaterally rewrite these rules, it inevitably leads to confusion and an increase in litigation, which ultimately benefits no one and hinders progress.
Moving Forward: Protecting Innovation and the Public Interest
For lawmakers seeking to address AI transparency, the path forward must be one that avoids providing rights-holders with tools to weaponize copyright claims. This necessitates a rejection of AB 412’s approach. Rather, legislation should be crafted to safeguard speech, foster competition, and protect the public’s interest in a robust, open, and equitable AI ecosystem. The delay of AB 412 is a positive step in ensuring that the future of AI development remains accessible and beneficial to all.