Category: Digital Culture

Can an AI Own a Copyright?

(Image source by kentoh)

Remember Clippy?  He was the animated paper-clip assistant, who lived several years ago amid the code of Microsoft Office. He would pop up rather suddenly on your desktop and interrupt your work to offer unsolicited advice as to how the work might be improved.  He was so annoying that Bill Gates reportedly sent an email memo to his staff titled Clippy Must Die.  And although Clippy does indeed lie in a virtual, unmarked grave somewhere in Redmond, perhaps we are not too far from seeing consumer and business software with integrated AIs that are subtle and helpful enough to be appreciated by the market. If so, what if anything, does this mean for copyright?

Early this month, Kalev Leetaru, writing for Forbes, published an article asking the hypothetical question as whether or not an AI algorithm may someday own a copyright.  The blunt answer to this question should be No.  Intellectual property law is entirely based on understanding and valuing human intellect and creative capacity. No bots need apply.

Of course, the larger question Leetrau asks, and to which he alludes in his article, is whether or not we might soon have to endure theories about civil rights in general for AI algorithms.  It is a dismaying irony, to say the least, that Moore’s Law implies that an AI may attain a consciousness we call “existence” long before we come anywhere close to achieving civil rights for all humans. But then, isn’t this exact narrative often the theme of science fiction in which the AI’s take over because we don’t know how to behave?  More to the point, science fiction has frequently answered the thesis question at hand by predicting that if the AIs actually wake up and become self-aware, the matter of their rights will no longer be our choice.  In that scenario, the AIs become the dominant species, and our so-called rights will be a subject of their mercy—or sense of our usefulness.

But between now and the technological singularity that may never occur, the question of intellectual property for AIs probably will become the focus of some litigation in the relatively near future. If we think of an AI not as autonomous being but as a human-owned and programmed machine that may produce a creative work the human owners did not truly imagine would be made, then we can expect the company that owns the AI to register the resulting works, just as they would register works made for hire by an employee.  But should they be allowed to do so?

Even if the AI-produced work met the conditions necessary for a company to register a work made for hire (and this seems unlikely because an AI is not an employee), the broader issue of the work’s copyrightability dates back to the early days of photography, which was the first time the courts had to answer the question as to how much human influence is involved in producing a machine-made work. That case law begins in the U.S. in 1884; so although the progress of AIs may be a highly-contemporary subject, the copyright question Leetrau raises is not necessarily so novel as it may appear.

As a rule, some modicum of human creativity—and therefore, some purposeful imagination of what the resulting work will be—has to be present for copyright to exist. The more clearly the human choices are observable in a work, the stronger the copyright claim will be.  So, if a human invents a “creative” AI but has no clear expectation of what the AI is going to produce, this is roughly parallel to installing a security camera which then autonomously captures random images that are not properly copyrightable.

Still, I think we can safely expect that a corporate owner of an AI that produces a creative work will want to register a copyright in that work. If so, the issue of protection should turn on the extent to which the human(s) had any creative influence to produce the work. But proving or disproving this factor may be quite difficult and not honestly represented by the AI’s owner.  And who knows if we can count on the testimony of the AI itself.

Perhaps the more likely, near-term scenario is one in which a work is collaborative between an author and a consumer-product AI owned by a large company like Adobe.  Because the new iterations of “assistants” won’t be pesky animations telling you that you’ve misspelled addendum; they will be seamlessly integrated partners that can subtly contribute revisions reflecting an intuitive “understanding” of your intent.  At the very least, it’s easy to imagine business communicators relying on such advanced AIs to transform gobbledygook emails or texts etc. into coherent missives.

We’re already seeing products that use adaptive AI for photography; every few months, it seems there’s another announcement that some new and terrible musical work has been produced by an AI; and people have been experimenting with AI and screenplay production for years. Even if the AIs don’t take over, they are likely to become more involved, and the more a creator allows a machine to make choices, the more her claim of copyright may be weakened in an actual litigation.

So, what if a creative human truly collaborates with an AI to the extent that the AI makes a substantial and measurable contribution to the finished work?  Let’s face it, if a robot can feel enough existential angst to commit suicide by drowning itself in a fountain, a robot artist will soon be among us.  Then, what happens if, for instance, a composer collaborates with an AI through a portal that is networked and monitored by the AI’s corporate owner?  Is this a road that leads to the corporate entity claiming joint ownership of the work?

Under current copyright law related to “jointly made” works, it would be quite difficult for the AI owner to demonstrate a) that the AI is “human enough” to claim an IP right at all; or b) that the human inventor/owners of the AI contributed through their invention to the finished work.  Plus, there must be an initial intent to create a jointly made work in order for all collaborators to claim ownership.  But, if the makers of AIs sought to claim some ownership in the works produced, they could lobby to change how the law defines “jointly made” works, at which point it will be interesting to see if the EFF fights for AI rights.

One way or another, copyright expert Sandra Aistars, Clinical Professor of Law at George Mason University, suggests that as AIs advance in this way, “User agreements would become even more important because that is where companies creating AIs would deal with the requirement that there be an intent to create a joint work.  Authors using new, adaptive tools would need to be more vigilant about paying attention to terms of service and end-user agreements.”

It’s tough to predict where this is leading.  What I do anticipate is that if the AIs themselves start asserting copyright ownership of their works and their AI attorneys engage in cyber-litigation over AI-to-AI infringement claims, the whole network will probably crash, and the last creator standing will be Clippy.

We Are Far From Skokie:  Free Speech in Cyberspace

“I hate Illinois Nazis.”  – Jake Blues, The Blues Brothers (1980)

I think my first introduction to the complexities of living in a nation with a constitutional right like the First Amendment was in the 7th Grade. Our teacher had the class watch and discuss the film Skokie (1981), a dramatization of the circumstances surrounding the 1977 legal case National Socialist Party of America v. Village of Skokie.  At that time, a group of about 30-50 National Socialist Party members wanted to march, dressed in Nazi-style uniforms, through an Illinois village that was home not only to a large Jewish population, but to quite a number of Holocaust survivors.  Concern was reasonably high among state officials that the community’s promise to rally 12,000 to 15,000 counter-demonstrators would lead to violence.

After the Illinois district, appellate, and supreme courts upheld injunctions barring the Nazi group from marching, the U.S. Supreme Court ultimately held that the state courts had not afforded the petitioners proper appellate review when restricting protected First Amendment rights. Thus, the Nazis would be allowed to march.  As I remember it, the main civics lessons we discussed were that, of course, protecting the rights of free speech and peaceable assembly requires protecting the rights of even the most offensive speakers; but also, that a municipality’s concern that violence may result from an otherwise lawful protest is not grounds for prior restraint of First Amendment exercise. The ACLU defended the rights of the National Socialists in Skokie, just as it represented white-nationalists’ right to protest in Charlottesville a week ago.

Although granted a permit, the Nazi group in 1977 chose not to march in Skokie and instead held a rally in downtown Chicago. Ever since then, and until quite recently, gatherings of these and other hate groups have generally been marginalized. Their speech has been protected, ignored, and mocked. Groups like the KKK would set up their flags, don their ridiculous sheets, spew garbage into megaphones that nobody would bother listening to; and then they’d pack up their impotent little circuses and go home. The “Illinois Nazis” were satirized in the 1980 comedy The Blues Brothers; and that was about as worked-up as we needed to get for the better part of the last four decades. But now, it seems we are far from Skokie.

In response to events in Charlottesville—though clearly Boston was a very different affair—it is possible that state and municipal lawmakers may try to re-legislate the meaning of “inciting violence” when it comes to issuing permits for groups claiming their intention to peaceably assemble. For instance, common sense might suggest that a large crowd showing up with firearms, or weapons of any kind, means that the proposed assembly is not “peaceable.” Thus, city officials should be allowed, with respect to the Constitution, to make reasonable decisions as to what risks they consider tolerable for their police officers to manage.

But that’s physical space. And there is probably a fair body of precedent law upon which city and state legislators can build, if they feel the need to strike a new balance between public safety and the First Amendment relative to a new and more dangerous climate.  But what about cyberspace?

If we set aside the hot-button topic of the president’s tacit endorsements of these groups, the most significant catalyst in amplifying previously-marginalized and fragmented hate-groups into large, gun-wielding mobs has got to be the internet. The internet connects people, right? Except the utopians and dreamers usually talk as though it only connects decent people—or even more naively, that the connection itself is the path toward newfound empathy for one another, which should moderate hatred and division. This can be true, but the opposite results are also plainly manifest.

It turns out the internet is a fertile breeding ground for hatred and division. Anyone can create a platform that connects people whose primary common interest may be hatred of other groups. And it’s not always as blatant as white nationalists hating Jews, people of color, homosexuals, etc. It may even be subdivisions among Jews, people of color, homosexuals, etc. hating on one another, which may be why our political process seems overly bogged down by tribal infighting along lines of identity rather than policies of inclusion—or at least tolerance. The internet seethes with conflicts of egocentrism; and I think it’s fair to say that the web is the ideal intersection for a bunch of misguided, chino-wearing, Tiki-torch-carrying college boys to find common cause with actual flag-waving Nazis trying to provoke a race war.

As was widely reported, events in Charlottesville led GoDaddy to finally boot the Nazi-themed site The Daily Stormer off its hosting servers. The site was then denied hosting by Google, kicked out of Cloudflare’s anonymizing service, refused hosting by other OSPs, and has now allegedly migrated to the dark web. No doubt, many people who were outraged by last weekend’s tragic events applauded these decisions to remove The Daily Stormer from the mainstream; but they were also followed up by notes of concern over the protection of free speech online. As the presumptive ACLU of the internet, the Electronic Frontier Foundation unsurprisingly took the position that speech must never be censored by these private platforms.  In a blog post, the EFF states…

“We at EFF defend the right of anyone to choose what speech they provide online; platforms have a First Amendment right to decide what speech does and does not appear on their platforms. That’s what laws like CDA 230 in the United States enable and protect. 

But we strongly believe that what GoDaddy, Google, and Cloudflare did here was dangerous. That’s because, even when the facts are the most vile, we must remain vigilant when platforms exercise these rights. Because Internet intermediaries, especially those with few competitors, control so much online speech, the consequences of their decisions have far-reaching impacts on speech around the world.”

Yes, the language itself is contradictory and equivocal (i.e. sites should have these rights but not exercise them), but there is no denying that the EFF is highlighting the unprecedented challenge we face with regard to the web and speech. On the one hand, private entities do not have the same constitutional obligations as the state; but this legal technicality does not reconcile the fact that a company the size of Google plays an outsized role in facilitating the means of all speech—from the vile to the profound—in the manner that speech is now conducted. Just like the ACLU defended the Nazis in Skokie—because the principle must be upheld if we are to protect other voices like civil rights leaders—the EFF argues the same rule applies in cyberspace. Allowing OSPs and edge providers to censor speech based on business decisions—and this could include government pressure—is potentially hazardous.

Conversely, these concerns contain a lot of overwrought hypocrisy in which the apparent speech defense masks—and even exacerbates—the larger problem. Because it is the combination of free-speech maximalism and “safe harbor” absolutism, with regard to internet policy, that has produced an oligopoly that now owns the primary conduits of speech itself.  That’s the real danger.  Or as my colleague, Mike Katell puts it …

“We have left the barn door open and allowed Silicon Valley to move the popular venues of expression from the community stage and the city street to their proprietary platforms, where they are guided not by constitutional or democratic principles but by terms-of-service strategically designed to maximize profits and offset risk.”

The internet industry, with the help of organizations like the EFF, has consistently swept a million sins (i.e. criminal conduct) under the rug of free speech—not as a matter of principle, but as a matter of revenue growth and competition for market-share. The major platforms manipulate speech all the time in the service of their business interests; and last week, it suddenly became bad for business to host The Daily Stormer. So what does this mean for speech?  Not much I think.

In a world in which private speech on public platforms has ballooned to trillions of interactions per day, the logic of slippery slopes toward censorship must be considered in context to this scale. If The Daily Stormer dies, speech lives. If sites or pages hosting terrorist propaganda are denied service, speech lives. If sites hosting copyright infringing content, selling counterfeit goods, facilitating trafficking, or any other criminal activity are shut down, speech lives. Just like in physical space.

This is to say nothing of the fact that the great, cosmic explosion of speech hasn’t really done democratic principles any favors. As a conveyance of knowledge (that magic ingredient meant to make people more compassionate), the internet also has the capacity to transform reality itself—even documented history—into a choose-your-own-adventure game. Then, because the internet connects people, some ten-thousand flat-earth, tinfoil-hat, conspiracy-theory whack-jobs are no longer dispersed innocuously around the country but will instead coalesce into a tribe that meets daily on TooStupidToBreathe.com. And the next thing we know, they’re a movement requesting a permit to rally in a city park.

As I’ve indicated many times, when the internet activists rush to defend speech in high-profile instances like The Daily Stormer, they consistently overlook a truth that we need to accept:  that laissez-faire internet policies on controlling content has produced—and will always produce—a society where bullies trample speech in ugly and even physically dangerous ways. This cognitive dissonance is reflected in Cloudflare’s wringing its hands over terminating The Daily Stormer account.  In a blog post on the matter, CEO Matthew Prince writes…

“Someone on our team asked after I announced we were going to terminate the Daily Stormer: “Is this the day the Internet dies?” He was half joking, but only half. He’s no fan of the Daily Stormer or sites like it. But he does realize the risks of a company like Cloudflare getting into content policing.”

Maybe they’re trying to answer the wrong question—an immature question. Because I think the answer is no, it’s not the day the “internet dies,” but maybe it’s the day our bullshit, utopian idea of the internet dies. And that’s not a bad thing. Because utopianism is the product of an immature assumption that bad people don’t exist, only bad systems do.  That’s why utopias are always one step away from dystopias. In this regard, not only do OSPs have a right to not facilitate hate, violence, or crime; but it is probably time for the internet industry to accept that taking such action is actually a responsibility for which they need not apologize.

In a broader context, I do not wholly reject the concerns raised by the EFF in this case; but as a matter of policy, I also believe we cannot effectively have this particular debate as though it were a Skokie-era issue. That is simply not the world we inhabit anymore. The internet’s unique capacity to catalyze anti-democratic views, even violent and hate-filled ones that would destroy the First Amendment itself, should factor into the equation when discussing the service providers’ role in protecting speech.

Enough With the Legal Theories About Piracy

When it comes to enterprise-scale piracy, it would be great if those who advocate its existence would just make simple declarations like, “I want free media and don’t care how I get it.”  Sure, that would be a childish thing to say, but still less offensive than all the pretense to rationale that accompanies piracy—the absurd legal arguments, the mystical economic analyses, and above all, the lionization of pirate site operators as though they are social revolutionaries in a grand culture war.  (Never mind that some pirate sites are verticals for larger criminal enterprises engaged in some pretty horrible activities.)  

Of course, an entrenched attitude is not easily pried from the mind once it takes hold; instead, it usually becomes fossilized under layers of facile talking points posing as ideas.  Petty aphorisms like sharing isn’t stealing, for instance, help paper over an otherwise complex issue and excuse ignorance of the broader implications of a phenomenon like media piracy. In this regard, the public is constantly fed variations on the theme that operating a website, which is purposely designed to exchange infringing material and, by virtue of that exchange, earns its owners millions of dollars is somehow not criminal.

And that brings us to the complaint by the United States against alleged Kickass Torrents (KAT) site founder Artem Vaulin and his unnamed co-conspirators.  The complaint was filed in an Illinois District Court on July 8, 2016 and Vaulin, a Ukranian, was arrested while traveling through Poland that same month.  Insisting upon his innocence, Vaulin chose to remain in Poland’s Bialoleka prison—it sounds pretty awful from this account on The Verge—for nearly a year, rather than prove his innocence at trial in the United States. (I’d personally try to avoid the Polish prison even if I were guilty, but to each his own.)  Vaulin is now out on $108,000 bail, fighting extradition, and is represented by Silicon Valley attorney Ira Rothken, who also represents Kim Dotcom.

As reported last Friday, Vaulin filed a motion to dismiss along with a litany of arguments contending that the copyright infringement counts against him are not properly criminal indictments. All of these arguments were rejected by the Illinois court.  The motion to dismiss was denied under the fugitive disentitlement doctrine, which basically says that if an individual refuses to appear in a U.S. court (i.e. makes himself a fugitive), then he may not avail himself of court protections like motions to dismiss.

Vaulin is charged with four criminal counts comprising three counts of criminal copyright infringement (§506 of Title 17) and one count of money laundering.  The 50-page complaint, filed by the investigating Special Agent for the Department of Homeland Security, cites compelling evidence alleging that Vaulin was the founder of the KAT network; that he and his associates purposely designed KAT with the goal of hosting torrents containing infringing material; that they knew their conduct was illegal; that they provided incentive for users to engage in infringement; that illegal activity took place within the United States; that the KAT network generated about $17 million/year in revenue from traffic to infringing content; and that the owners sought to hide funds through dummy corporations in bank accounts set up in Latvia and Estonia.  Here’s just one highlight from the complaint that makes several points rather simply:

“March 29, 2011, when an individual reached out to Vaulin…with the subject line “new movies.” The individual asked about the movies Kung Fu Panda and The Hangover, remarking that people were asking for those movies. Vaulin replied that same day, noting that Kung Fu Panda was added six hours ago and that The Hangover was just added.”

As I say, I get the self-interested reasons why people rationalize what these site operators are doing; but when the indictment is handed down, let’s not pretend we’re straying into some ambiguous area of criminal law.  Piracy advocates and copyright antagonists are very fond of the refrain that the owners of a site cannot be held criminally liable for the activities of its users.  But there are several examples like the quote above indicating that the KAT site operators knew exactly what they were doing, and it’s frankly stupid to pretend otherwise.

Nevertheless, copyright antagonists like Mike Masnick at Techdirt place a lot of emphasis in this case on the supposed ambiguity of of secondary liability, which is a common law principle applied in civil copyright cases but for which there is no federal statute proscribing the conduct. The theory being applied is that if Vaulin and his colleagues merely own a platform on which infringement takes place, they themselves cannot be criminally liable.

Indeed this secondary liability issue is one of the arguments presented by Vaulin’s attorney; and it is true that there is no statute in Tile 17 (the Copyright Law), which explicitly states that aiding and abetting copyright infringement is a crime. In fact, Rothken asserts that because the 1909 Copyright Act explicitly criminalized secondary liability but the 1976 Act does not, this implies that Congress does not consider secondary liability to be criminal. Yeah…no.

In the 1909 Copyright Act, each criminal statute included its own aiding and abetting provision; but by the time the 1976 Act was written, the federal criminal code had been completely overhauled and included a general provision for aiding an abetting of all criminal violations against the United States.  Thus, the court rejected Rothken’s reasoning, stating that a separate aiding and abetting provision in the 1976 Copyright Law would have been redundant.  Title 18 §2 states:  (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. 

Thus, the Illinois court has held that if one is alleged to have helped people commit criminal copyright infringement, induced them to do so, rewarded them for doing so, and/or profited from their doing so, then one is properly charged with criminal copyright infringement.  And if that sounds like common sense, it’s because it is common sense.  And I will add that if this story were about trafficking in some less popular form of illegal activity—like snuff porn, or harmful counterfeit goods—I highly doubt that many average defenders of pirate sites would hope to see the law applied any differently.

I will not enumerate each of Vaulin’s defenses the court rejected, lest this post become unreasonably long and of interest to about ten law nerds.  But suffice to say that the defenses sound to this law nerd like a lot of grasping at straws. My personal favorite, though, is the assertion that torrents are not protected by the copyright law, and it is therefore not possible to infringe torrents.  That’s kind of like getting caught with a truckload of bootlegs and declaring that “audio tape isn’t illegal.”  As the court patiently explained, the torrents are the means to infringement, so it was a no-go on the twisted logic being applied there.

In his somewhat hand-wringing rebuttal to the opinions of the court, Masnick writes, “No one denies that there were people in the US who used the platform for infringement. But just because people are using the platform for infringement, doesn’t make it criminal infringement. For something to be criminal copyright infringement it has to reach a much higher bar than just ‘people downloaded stuff.’”

He’s absolutely right.  And a plain, common-sense reading of the details in the complaint should make clear to any reasonable person that the government has met the burden to bring a criminal indictment in this case. The 2016 DOJ guidelines regarding consideration of criminal charges in IP cases recommend weighing several factors that define best practices independent of the the type of IP involved.  The recommendations consider factors such as deterrence, potential economic harm, public safety, recidivism of the actors, and the efficacy of civil proceedings in lieu of criminal charges.  Suffice to say, an enterprise operating at the scale of Kickass Torrents easily checks off several boxes under the guidelines.

I mention this broader view of IP enforcement because, as indicated above, it is a dangerous precedent—no matter how popular pirating movies and music may be—to wish that the law worked differently than it does, especially in the digital age.  We live in a networked world in which transnational IP infringement can mean tainted food or drugs or other unreliable products getting into the supply chain. Cyberspace is still a relatively new frontier for crime; and some pretty nasty characters have sought to argue the same kind of defenses being used in this case in order to distance themselves from the harm they cause simply because their presence is virtual.  So, to any parents who, as cited in the complaint, were asking for Kung Fu Panda on KAT, I’d say be very careful what you wish for.