Private Law Design for New Technology: Retrofitting Unjust Enrichment for GenAI Liability

For centuries, private law has proved incredibly resilient, adapting to
societal change and innovation. It has evolved to accommodate, among other
fruits of progress, mass production, global commerce, and the digital paradigm
of the internet. But generative artificial intelligence (GenAI) technologies are
testing the limits of private law’s resilience and its commitments to fairness and
responsibility by rapidly introducing a new kind of actor into the ecosystem.
GenAI expresses human-like content creation abilities, largely by “stand[ing]
on the shoulders of past generations of human creators.”1 Still, while human
creativity may be an indispensable driver of GenAI, copyright law’s protection
of human creative expression is proving inadequate to answer a fundamental
question: how can private law fairly compensate human creators without killing
beneficial GenAI innovation?