You Ask, I Answer: Avoiding Generative AI, Part 1: Legal

In today’s episode, you’ll learn how to navigate the legal landscape to protect yourself and your content from being used to train AI models. You’ll discover the importance of carefully reviewing terms of service, specifically focusing on derivative works clauses. I’ll also guide you on the significance of retaining legal counsel, establishing clear contracts, and implementing stringent data privacy measures to safeguard your intellectual property. Tune in to gain valuable insights on how to navigate the evolving world of AI and protect your creative work.

You Ask, I Answer: Avoiding Generative AI, Part 1: Legal

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Christopher Penn: This week, we’re going to do a five-part series that answers a very interesting question by my friend and colleague Mar, who asks, “How do I avoid generative AI?” It’s a really interesting question. We’re going to look at things like legal stuff, infrastructure, software and tools, marketing—all without the use of AI—and a whole bunch of practices and things you can do. It’s five parts, come back to each part as you need, feel free to share them around.

Understand that as the technology continues to advance, it’s going to get harder to avoid. But it is still possible. You will need some level of technical sophistication to do so.

Part one is today. Let’s talk about legal stuff.

Number one—well, actually, we should start before anything else—I am not a lawyer. I cannot give legal advice. Please seek an attorney that is qualified and in your jurisdiction for legal advice specific to your situation.

So, when it comes to avoiding generative AI, there’s four things you need to do to make sure that generative AI is not impacting you substantially. Number one, for any service that you use as an individual, as a business, whatever, you need to check the terms of service with a fine-tooth comb.

Normally, I would say, “Use generative AI.” But in this case, we’re trying to avoid that. So, inspect the terms of service for one specific clause: derivative works. What is a service allowed to do with your data if they are allowed to use it for derivative works? The derivative works clause means that they can take your work and turn it into another work, like using your data to train an AI model.

Only use companies that either don’t have a derivative works clause, or they have a separate clause that specifically carves out AI and says, “We want—as long as this terms of service is in effect—we will not use your data to train AI models or share with vendors who train AI models.” That part’s important because a lot of companies do have subprocessors. Even if that company is not using AI on your data, a subprocessor or a subcontractor may be.

So, that’s number one: inspect those terms of service.

Number two, you should 100% retain legal counsel that can issue things like cease and desist orders or pursue infringement of intellectual property, especially if you clearly put on all your documents, on anything you publish, that you explicitly forbid the use of your data to train AI. Put that on every single thing you produce. Then, your legal counselor can issue a cease and desist; no one can claim, “I didn’t know I was supposed to.” It literally says in big letters on the bottom, “Explicitly forbidden from using with AI,” or whatever your lawyer or your attorney recommends as the appropriate language.

Number three, you absolutely, positively need to have a great attorney reviewing all of your contracts, upstream and downstream—so, suppliers and customers—and saying, “No AI usage. None.” You would require from a vendor, “No AI usage.” You would require from a partner or agency, “No AI usage.” You would require—you would tell a client, “Hey, we’re not using AI, and you may not use our work product for AI purposes.” You’ll have to negotiate with your clients as to whether or not that’s okay with them, but you would need to put that in the contracts themselves.

And number four is having very, very strict data privacy clauses in your contracts and in any legal paperwork. That’s an additional layer of protection. If you have strong data privacy, by default, you also have strong intellectual property enforcement. You’re saying, “Hey, this is what—our data can’t go to these places. We’re enacting privacy restrictions; the data can’t go to these places.”

Now, you do have to enforce all this stuff, and, again, you’re going to need a great lawyer to do that. But that’s the legal part of how you would reduce your exposure to generative AI.

In the next part, we’re going to look at infrastructure and security.

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You Ask, I Answer: Avoiding Generative AI, Part 1: Legal

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