Tell the Senate: Throw Out the NO FAKES Act and Start Over

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.

And NO FAKES offers even fewer safeguards against abuse than the DMCA. For example, the DMCA includes a relatively simple counter-notice process that a speaker can use to get their work restored. NO FAKES does not. Instead, the burden is on the speaker to run to court within 14 days to defend their rights. While the powerful have lawyers on retainer who can do that, most creators, activists, and citizen journalists do not. The other various exceptions in the bill won’t mean much if you have to pay a lawyer to figure out if they apply to you, and then try to persuade a rightsholder to agree.

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.