Private Ordering and Generative AI

Drawing on the extensive history of study of the terms and conditions (T&Cs) and privacy policies of social media companies, this paper reports the results of pilot empirical work conducted in January-March 2023, in which T&Cs were mapped across a representative sample of generative AI providers as well as some downstream deployers. Our study looked at providers of multiple modes of output (text, image, etc.), small and large sizes, and varying countries of origin. Our early findings indicate the emergence of a “platformisation paradigm”, in which providers of generative AI attempt to position themselves as neutral intermediaries similarly to search and social media platforms, but without the governance increasingly imposed on these actors, and in contradiction to their function as content generators rather than mere hosts for third party content.