I am not one to disagree with Eugene about an area within his area of expertise, but I confess I have a different reaction to his view, expressed in his draft paper, that AI program outputs "would reasonably appear to state or imply assertions of objective fact." Take OpenAI's ChatGPT. Eugene argues in his draft at page 8 that OpenAI's business model is premised on ChatGPT outputs being factually correct:
OpenAI has touted ChatGPT as a reliable source of assertions of fact, not just as a source of entertaining nonsense. . . . The AI companies' current and future business models rests entirely on their programs' credibility for producing reasonable accurate summaries of the facts. When OpenAI helps promote ChatGPT's ability to get high scores on bar exams or the SAT, it's similarly trying to get the public to view ChatGPT's output as reliable. Likewise when its software is incorporated into search engines, or into other applications, presumably precisely because it's seen as pretty reliable. It can't then turn around and, in a libel lawsuit, raise a defense that it's all just Jabberwocky.
Naturally, everyone understands that AI programs aren't perfect. But everyone understands that newspapers aren't perfect, either—yet that can't be enough to give newspapers immunity from defamation liability; likewise for AI programs. And that's especially so when the output is framed in quite definite language, complete with purported quotes from respected publications.
Here's my question: Is the reasonable observer test about business models, or is it about what people familiar with the service would think? Because if the test is about what normal observers would think, it seems to me that no one who tries ChatGPT could think its output is factually accurate.
