Copyright and patent law rest on a bargain: Because creation is difficult and expensive, the law grants creators a temporary monopoly to spur them to produce. In a new essay in the Virginia Law Review, Berkeley Center for Law & Technology Life Sciences Law & Policy Center Director Vincent Joralemon ’24 uses OnlyFans to explore how generative AI is turning that bargain on its head.
When source content is essentially free to create, he argues, the value of authenticated material featuring a real human being is rising. OnlyFans protects its creators’ verified identifies through what Joralemon calls a “triple-lock” structure: Verified identity requirements draw in customers; proprietary infrastructure, including encryption and anti-scraping measures, closes off the content; and aggressive copyright enforcement destroys pirated copies that would otherwise undermind the value of that verification.
This is, Joralemon writes, the architecture of the post-incentive economy.
“The emerging regime favors those who already possess recognized brands, access to legal departments, and the capital to build proprietary infrastructure,” he writes. “It promises to entrench the dominance of large platforms and legacy media organizations while offering little to individual creators who lack pre-existing fame.”
Rather than allow such a skewed system to thrive, Joralemon proposes government intervention to allow greater access. Creating a public verification layer — using the Library of Congress as a “public notary” — wouldn’t replace private efforts but would allow creators with fewer resources to play in the same league with rich companies.
“The old regime asked: ‘Did you create this?’ The new regime asks: ‘Can you prove you are who you say you are?’ — and, just as importantly, can you afford the infrastructure to make that proof stick?” he writes. “The question is not whether anyone benefits, but who benefits systematically, and at whose expense.”