Last week and this, I've been serializing my Large Libel Models? Liability for AI Output draft. For some earlier posts on this (including § 230, disclaimers, publication, and more), see here; one particular significant point is at Communications Can Be Defamatory Even If Readers Realize There's a Considerable Risk of Error. Today, I turn to two arguments against liability.
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[A.] Aggregate Costs of Liability
To be sure, once one allows any sorts of legal claims against AI companies based on their programs' output, this will lead to many more claims, sound or not. Even if the first victories happen where the claims seem strongest—for instance, as to fabricated quotes, or continued communication of fake quotes after the company has been alerted to them—later claims may be much more contestable and complicated. Yet each one will have to be defended, at great expense, even if the AI company prevails. Lay juries may err in deciding that some alternative design would be feasible, thus leading to some erroneous liability verdicts. And common-law courts may likewise extend plausible precedents for liability into much more radical and unjustified liability rules.[1]
As a result, AI companies that produce such software may find it impossible to get liability insurance. And while the richest companies may be able to self-insure, upstart competitors might not be able to. This might end up sharply chilling innovation, in an area where innovation may be especially important,...
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