Tell Congress: Just Say No to NO FAKES

The NO FAKES Act is designed to protect against companies or individuals that use an unauthorized digital likeness of someone by wrapping up those digital replicas in a federal intellectual property right and giving that individual—or their heirs—the right to sue. In doing so, the NO FAKES Act mimics some of the most broken parts of our copyright system and makes them worse.

For example, the bill includes a safe harbor scheme modeled on the DMCA notice and takedown process. But the DMCA process has been abused for decades to target lawful speech, and there’s every reason to suppose NO FAKES will lead to the same result. In order to stay within safe harbors, when a platform receives a takedown notice for an alleged digital replica, it must remove “all instances” of that unlawful content. That requirement will inevitably lead to content “filters” that will censor lawful speech.

A property right also means years of legal uncertainty for every website and app that hosts user-uploaded material, as courts figure out when to hold those sites responsible for “digital replicas.” Today’s giant online platforms can absorb that risk and cost easily, but alternatives will struggle to comply, further entrenching today’s big tech monopolists.

NO FAKES goes even further than copyright in encouraging abuse. While copyright already lasts absurdly long—up to 70 years after the author’s death—the new right created by NO FAKES can potentially last forever, creating liability risks and legal costs for documentarians and historians.
NO FAKES is also a major government overreach. A person’s name and likeness are facts, and the Constitution forbids Congress from granting a property right in those facts.

Deceptive, AI-generated replicas can cause real harm, and performers have a right to fair compensation for the use of their likenesses, should they choose to allow that use. But the costs of this bill far outweigh the benefits.