Valve, the U.S.-based video game developer, publisher and
distributor, has reportedly adopted a policy to reject games that
use AI-generated content over infringement concerns. A developer
posted on the “aigamedev” subreddit that in response to
submitting a game with some assets that were obviously
AI-generated, he received a rejection notice from Valve
stating:
While we strive to ship most titles submitted to us, we cannot
ship games for which the developer does not have all of the
necessary rights. After reviewing, we have identified intellectual
property in [Game] which appears to belong to one or more third
parties. In particular, [Game] contains art assets generated by
artificial intelligence that appears to be relying on copyrighted
material owned by third parties. As the legal ownership of such
AI-generated art is unclear, we cannot ship your game while it
contains these AI-generated assets, unless you can affirmatively
confirm that you own the rights to all of the IP used in the data
set that trained the AI to create the assets in your game. We are
failing your build and will give you one (1) opportunity to remove
all content that you do not have the rights to from your build. If
you fail to remove all such content, we will not be able to ship
your game on Steam, and this app will be banned.
According to the developer, despite later editing those assets,
“so there were no longer any obvious signs of AI,” his
app was still rejected.
In a statement, a Valve spokesperson clarified that the company
does not wish to discourage the use of AI in game development, and
indeed sees great potential in it.1 However, it has
concerns about the legal status of AI-generated art assets –
considering the AI that made them may have been trained on data,
including copyrighted art works that do not belong to the creator
of the game. “Stated plainly, our review process is a
reflection of current copyright law and policies, not an added
layer of our opinion,” Valve said. “As these laws and
policies evolve over time, so will our process.”
When Does Using AI Constitute Infringement?
Whether using copyrighted content to train AI models
constitutes infringement is a question pending in several
lawsuits. This is just one of several unanswered legal questions
with AI. As a result, many companies are developing AI-related
policies to address the array of legal issues that can arise with
generative AI. I addressed some of the legal issues in How
Generative AI Generates Legal Issues in the Games
Industry.2 Among other things, these policies address
training AI models, using AI tools to and/or using AI code
generators.
For companies training AI models, it is important to develop
policies and procedures to ensure responsible use of AI and to
mitigate any liabilities. This includes, among others, policies and
procedures on the collection and use of data to train the AI
models, the assessment of risk and safety issues before releasing a
new model or product based thereon, prevention of personal
information from improperly being used in the training data or the
output of personal information or false or disparaging information
about a person. The FTC investigation of OpenAI and its 17-page
list of questions regarding its policies and procedures for
training AI models, among other things, is a road map for companies
that want to develop such policies and procedures. For more
information on this, see The Need For Generative AI Development
Policies and the FTC’s Investigative Demand to
OpenAI.3 One of the important issues to consider when
training AI is whether you may actually use the data you want to
use. One aspect of this that surprises some companies is that even
if you “own” certain data, you may not have the right to
use it to train AI models.4
Companies using third AI party tools also need to develop
policies on employee use of such tools. In the game industry, and
others where generating and protecting creative content is
important, companies need to assess whether they want to permit
employees to use generative AI to create such content. Two factors
to consider are whether there are infringement issues and that the
AI-generated content is likely not protectable by copyright. If you
use third-party contractors to develop the game, whether to write
code or generate art, your policies need to cover their use as
well.5
If your developers are using AI code generators to assist in
coding the game, there are several additional issues to consider,
primarily due to the use of opensource code that is used in
training such models.6
The power of generative AI is alluring and many companies are
experimenting with its use. Given the array of legal issues, it is
imperative for companies to develop policies to set guardrails for
such use. The best way to get started with such policies is to have
a qualified attorney prepare a presentation on the relevant legal
issues and then develop policies for the identified use cases based
on company-specific
criteria. Feel free to reach out with any questions.
Footnotes
1. See “Valve Doesn’t Have a Problem with
AI-generated Games But the Law Might,” Welsh, Oli, at https://www.polygon.com/ai-artificial-intelligence/23783520/steam-valve-ai-content-policy
2. See https://www.lawoftheledger.com/wp-content/uploads/sites/15/2023/03/AI-and-GamesArticle-0223.pdf
4. See “Training AI Models – Just Because
It’s ‘Your’ Data Doesn’t Mean You Can Use It,”
https://www.jdsupra.com/legalnews/training-ai-models-just-because-it-s-1907628/
5. For more information on employee and contractor use
policies, see “AI Technology – Governance and Risk Management:
Why Your Employee Policies and Third-Party Contracts Should be
Updated,” at https://www.natlawreview.com/article/ai-technology-governance-and-risk-management-why-youremployee-policies-and-third
6. For more information on legal issues with AI code
generators, see “Solving Open Source Problems with AI Code
Generators,” at https://www.lawoftheledger.com/2023/05/articles/artificial-intelligence/solving-opensource-problems-with-ai-code-generatorslegal-issues-and-solutions-2/
Originally Published by The Licensing Journal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
