Word Choice Matters in AI Contracts: How One Phrase Derails WGA Deal

Many in the media celebrated the highly anticipated Writers Guild of America (WGA) agreement with the Alliance of Motion Picture and Television Producers (AMPTP) as a major win for AI protections. This skewed depiction of robust AI safeguards is a sobering reminder of why you shouldn’t always trust headlines. At first glance, the deal seems to address all the key AI issues, but a discerning review of the deal's wording unveils several challenges. One poorly worded stipulation, in particular, renders the work of WGA writers extremely vulnerable to exploitation via AI training. Let’s dissect this seemingly benign provision and how it’s frailty derails one crucial AI protection.

For the purpose of this analysis, we’ll utilize the widely quoted summary which the WGA provided its members:

“Guild reserves the right to assert that exploitation of writers’ material to train AI is prohibited by MBA or other law.”

1) The inclusion of the phrase “reserves the right to assert” implies that the right has not yet been exercised within the actual agreement and that the WGA may or may not assert this right at some point in the future. It doesn’t guarantee that they will. "To assert" means that the WGA may make a claim, but it doesn't mean the claim is valid. At the very moment this agreement is ratified, there is technically zero protection for the writing of WGA members from being used to train AI models.

2) The phrase “reserves the right to assert” without further clarification or parameters is considered legally vague and ambiguous. It obfuscates under what circumstances and time frame the right can be asserted. There are no stated triggers for the assertion of the reserved right. The WGA fails to outline specific conditions under which the union might choose to assert said right. This leads to unpredictability and legal uncertainty for both parties.

3) An agreement like this relies too much on an unstated mutual understanding of the interpretation by both parties. Using an ambiguous phrase like “reserves the right to assert” without any other parameters, details, or clarification may lead to differences in interpretation. The effectiveness of this provision relies too much on the good faith of the AMPTP. If the studios act in bad faith, the provision's purpose and protection may be undermined, leaving the WGA with limited recourse.

4) The inherent weakness of the provision will lead to legal uncertainty and enforceability issues. It leaves too much up to the courts to decide, and they may not rule in favor of the WGA.

Here’s a purposefully simplistic hypothetical situation that effectively displays how this may be problematic:

• WGA: “We are now exercising the right we asserted in our past agreement. We prohibit the AMPTP from using the scripts of WGA members for AI training.”

• AMPTP: “Wait a second…. That is not how we interpreted that provision.”

WGA brings the AMPTP to court.

• COURT: “WGA, why was this AI training prohibition not specifically exercised within your agreement?”

• WGA: “????? ….. but we now recognize it is unethical to train AI models with the work of WGA screenwriters without their permission and or without fair compensation.”

• AMPTP: “Within the agreement that the WGA signed off on, they have explicitly permitted WGA members to work alongside AI to assist in generating screenplays. This AI technology only exists because it has been trained on thousands of screenplays, books, news articles, etc.… Additionally, in the agreement, they identify OpenAI’s ChatGPT as a tool implied for use by WGA members. WGA member Sarah Silverman is currently involved in litigation for copyright violations against this very tool. So the WGA can’t claim ignorance of the fact that the very AI tool they have authorized within this agreement has already been trained on the work of WGA members.”

You can see how enforcing this provision will prove difficult due to legal grey areas and could lead to major disputes and extensive litigation.

5) Compounding this legal uncertainty is the WGA’s omission of an enforcement mechanism. They never detailed how the prohibition would be enforced, including potential penalties, remedies, and dispute resolution mechanisms. A practical enforcement mechanism would minimize the risk of future disputes and legal challenges.

6) There is a lack of legal precedent, so the WGA’s inclusion of the phrase “prohibited by MBA or other law” in the provision leads to more vagueness and uncertainty. What other laws? This broadness makes the clause less definitive. As AI evolves, new legal challenges and ambiguities arise, and there is not an existing legal precedent for courts to rely on. If the WGA’s plan was to punt the ball in hopes that a new law will save them one day, they may be waiting for quite some time. The current lawsuits by authors seeking copyright protection and AI training rights are highly complicated, and are all new legal proceedings that will likely be decided in the Supreme Court many years from now. This lack of precedent increases the unpredictability of legal outcomes.

While the provision attempts to protect writers’ material from exploitation in AI training, its effectiveness is hobbled by its vagueness, lack of commitment, and enforcement challenges.

In order to strengthen this provision, the WGA needed to do the following:

• Define the terms clearly.

• Outline the specific circumstances under which the reserved right can be asserted, the process for doing so, and the consequences of such assertion.

• Define clear parameters and triggers for the assertion of the reserved right, reducing ambiguity and providing a more solid basis for enforcement.

• Ensure that both parties have a mutual understanding and agreement on the interpretation and implications of the provision to minimize future disputes.

There can be no grey area as far as AI is concerned. The ambiguity and lack of commitment in this provision make it extremely weak in many contexts. Parties should always approach such AI contract language cautiously and seek to clarify the provision to better reflect their specific intentions and to protect their interests effectively.