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Videogame lawyer says it's become 'just boilerplate' this year to include no-AI clauses in contracts: 'It's not worth the legal liability'
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There's a problem with new technologies, in that cutting-edge technology develops quickly—in the span of years. Meanwhile, us human beings with our wet flesh bodies and our complicated bureaucracies and legal systems are glacially slow. You can see this playing out with generative AI.
For a few years now, we've heard a lot of overexcitement from the videogame industry that AI is going to let smaller companies make bigger games, that soon you'll be able to generate your own concept art, your own music, your own videogame dialogue—and, of course, the deeply tedious phrase "democratising art".
In actuality, generative AI is more of a plagiarism machine, often spitting out carbon copies and, even when it's not doing that, still requires countless copyrighted works (which sometimes have to literally be burned) to actually function. That legal heat has spooked videogame companies, so says lawyer Haley MacLean in an interview with our friends over at GamesRadar+.
MacLean, both a corporate IP lawyer and a videogame specialist at Voyer Law, tells the site that no-AI clauses are on the rise, particularly in the last year: "It's turned around, especially in the past year. I would say about two to three-ish years ago, you'd see a little bit of it … Even the smaller, more simple publishing studios are like, 'Let's include this just to cover our butts.'
"So now it's just boilerplate, to the point that if I did encounter one that didn't have a gen AI clause, if the publisher was creating assets too, I would say we need to push for that to make sure the publisher is not using gen AI in the marketing, porting, QA of your game."
It's not all too surprising, even from a ruthless capitalist perspective. There's a tension between videogame platforms, who are incentivised to rid themselves of the tides of AI slop lapping at their shores, and developers themselves. The former is encouraged to add large, obvious disclaimers so their users can filter out the garbage, while the latter is utterly screwed when they do.
Back in June, for instance, a data analyst found out that AI disclosures could reduce the number of reviews a game got by 53%, making the reviews more negative overall, which MacLean says causes a pervasive attitude of "I don't want to use gen AI because my community would hate it."
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But the legal quagmire is also becoming increasingly insurmountable as legislation catches up—one particular quirk? If you use generative AI to make something, it might be impossible to prove that you copied the thousands of artists who were fed into your algorithm, sure. But it also means that, legally speaking, you can't really argue YOU made it, either.