Unreal and Unjust: An Enrichment-Based Approach to the Deepfake Dilemma

Abstract Generative AI technology is taking the world by storm. The development of technology enabling creation and manipulation of content has give facilitated a substantial rise in the proliferation of deepfakes. Whereas in the past content creation and manipulation required a certain level of expertise, today deepfake technology is easily accessible and enables the quick and seamless creation of highly believable content. This technology has many positive applications: for example, in healthcare, education, cultural preservation and the entertainment industry. But deepfake technology is also used to deceive and cause harm. Deepfake technology is used to create sexual deepfakes that humiliate and harm primarily women and girls, to engage in fraudulent activities, and to generate disinformation undermining trust in democratic processes and institutions. This Article suggests analyzing the deepfake dilemma through the lens of the doctrine of unjust enrichment. Under this doctrine a party which has become enriched at the expense of another must make restitution of benefits it received. An enrichment-based approach may offer several advantages, particularly when compared to harm-based remedies. First, it may be easier to identify the defendant in an unjust enrichment case, as the defendant is the company developing the underlying technology and there is no need to identify the individual who created the deepfake. Second, a lawsuit under unjust enrichment may be filed by various plaintiffs, thus, obivating the need to identify the individual harmed by a deepfake. Finally, it may be easier to identify and quantify the profits which are monetary, current and concentrated within a small number of companies. We argue that under certain circumstances viewing the deepfake challenge through the lens of unjust enrichment can allow for a realignment of the financial incentives of the companies developing deepfakes technology with broader social goals and values, encouraging them to develop technology that is less harmful and more responsible.