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California doesn’t own AI policy – Orange County Register

California doesn’t own AI policy – Orange County Register
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People reflected in a window of a hotel at the Davos Promenade with a slogan about AI alongside the World Economic Forum in Davos, Switzerland, Monday, Jan. 15, 2024. (AP Photo/Markus Schreiber)

In recent years, Californians have seen government intrusion on overdrive. From water rationing to cracking down on the “gig economy,” Sacramento has been telling us how to live our lives and run our businesses. Now, the state government has its eyes set on one of our most fundamental rights: the freedom of contract.

Contracting is the opposite of governmental regulation. It allows people to make mutually beneficial agreements without the coercive powers of the state dictating the terms. People make contracts every day without government interference.

When it comes to contracts for the use of one’s digital likeness, Sacramento now wants to limit this freedom, driven by a technopanic over generative artificial intelligence.

Assembly Bill 459 targets so-called “digital replicas,” which are virtual representations of real people. Creators have been employing replicas for decades, using teams of skilled animators and computer-generated imagery (CGI). AI streamlines and reduces barriers to this technology, making it easier for smaller producers without large movie studio budgets to incorporate digital replicas into their art.

Of course, when technology becomes available to the masses, it’s more difficult to control.

The bill would insert government into the creative process, unnecessarily dictating special provisions about the use of digital replicas if the business seeks to create a digital replica of an agreeable employee. What’s worse is the legislation would be retroactive and invalidate existing contracts if the employee was not represented by a lawyer or union representative during the negotiation period.

Californians can adopt a child, get married, sell a house, create a last will and testament, and organize a corporation in the Golden State without paying a lawyer or union dues. But sign an agreement about digital replicas? That’s a bridge too far, say the sponsors of AB 459.

While one can appreciate the wisdom of individuals retaining counsel in many contexts, it’s not the government’s job to require that for digital replicas or any other reason. Such a requirement is likely unconstitutional and, as a policy matter, is a dangerous overreach that compromises the individual liberty of performers and ordinary Californians.

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What’s more, AB 459 does nothing to address actual harms, and potential harms, associated with digital replicas created using AI. This technology has been used for exploitation. The phony pornographic AI-generated images of Taylor Swift released on social media last month is a shocking example. Likewise, an AI-generated voice clone used to convince parents their child was kidnapped, or an unauthorized dental ad featuring an AI-generated Tom Hanks, were not created by good-faith businesses, but rather malicious actors seeking illicit financial gain.

AB 459 does nothing to curtail or punish such behavior but imposes a variety of new costs on individuals and businesses that seek legitimate uses of the technology.

The proposal is simply impractical. The law’s terms like “digital replica” and “generative artificial intelligence” are ill-defined and so vague that it’s unclear how such a retroactive requirement would even apply.





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