GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Forthcoming

Abstract

Artificial intelligence runs on data. But the two legal regimes that govern data—information privacy law and copyright law—are under pressure. Formally, each regime demands different things. Functionally, the boundaries between them are blurring, and their distinct rules and logics are becoming illegible.

This Article identifies this phenomenon, which I call “inter-regime doctrinal collapse,” and exposes the individual and institutional consequences. Left unchecked, the data acquisition status quo favors established corporate players and impedes law’s ability to constrain the arbitrary exercise of private power. Through analysis of pending litigation, discovery disputes, and licensing agreements, this Article exposes two dominant exploitation tactics enabled by collapse: Companies “buy” data through business-to-business deals that sidestep individual privacy interests, or “ask” users for broad consent through privacy policies and terms of service that leverage notice-and-choice frameworks. Both tactics systematically reward a cadre of well-resourced actors.

Doctrinal collapse also poses a fundamental challenge to the rule of law. When a leading AI developer can simultaneously argue that data is public enough to scrape—diffusing privacy and copyright controversies—and private enough to keep secret—avoiding disclosure or oversight of its training data—something has gone seriously awry with how law constrains power. To manage these costs and preserve space for salutary innovation, we need a law of collapse. This Article offers institutional responses, drawn from conflict of laws and legal pluralism, to create one.

GW Paper Series

2025-46

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