Louis Shaheen (Ohio State U (OSU)) has posted “Section 230’s Immunity for Generative Artificial Intelligence” on SSRN. Here is the abstract:
Section 230 of the Communications Decency Act of 1996 (47 U.S.C § 230) was Congress’s attempt to shield online platforms from liability for third-party content posted on their websites.1 The law also protects online platforms serving as “Good Samaritans,” those that perform editorial functions on their websites to keep them free of obscene material. Consistent with an admonishment by Congress, the federal courts have interpreted Section 230 broadly and have granted immunity in a variety of cases.
Law reviews responded critically and provided potential reform recommendations. Law professors to law firms have critiqued Section 230 for extending broad immunity beyond its drafters’ intentions. Indeed, Section 230 affords protection to website owners far greater than what the First Amendment guarantees. The criticisms are warranted, considering that those harmed by content posted on websites are left without recourse. For example, Section 230 has granted immunity in situations where a website allows content that sexually harasses and humiliates people. Although Congress has put forth legislation that would curb this immunity, it has not passed any. Thus, under Congress’s direction, courts have interpreted Section 230 broadly and granted immunity in ill-advised circumstances. This Article deals with an emerging Section 230 frontier commonly discussed in legal commentary that courts have not yet addressed: generative artificial intelligence (AI). Currently, the closest analog that courts have addressed are algorithms, like the one used by Facebook, that push content to a user’s feed based on that user’s input. Generative AI, when trained using third-party content on the internet, can produce text, images, and other media in response to a user’s input, similar to and yet different from these algorithms. The emergence of generative artificial intelligence presents an unanswered question: does Section 230 protect the content that generative AI produces? In four sections, this Article answers in the affirmative: First, it provides a background that traces Section 230’s legislative history. Second, it highlights White House and congressional activity surrounding generative AI. Third, it applies Section 230’s three elements to determine whether generative AI has Section 230 immunity. Fourth, it demonstrates that Section 230 immunity is too broad and proposes solutions based on analogous laws that would allow generative AI technology to develop and allow those harmed by generative AI to petition courts for redress.