Category: Culture

Scholar Takes on Empiricist View of IP

Photo by porpeller

Empirical evidence tells us that all human existence is a sand castle. At best, if no other cataclysm comes first (and one probably will), the inexorable expansion of our sun will wash away the Earth and any evidence that we were ever here. One possible exception may be the two records affixed to the Voyager spacecraft, still traveling years beyond their life expectancy as Voyager 1 is now about 13 billion miles from Earth. Of course, the odds of those records being discovered by intelligent beings—let alone beings that find us interesting—are less than minuscule.

Empiricism can tell us which notes, instruments, chords, time signature, and lyrics describe Chuck Berry’s recording of “Johnny B. Goode” are on board Voyagers 1 and 2; but these data can hardly explain what it is about Berry’s playing that moves us more than others—or for that matter, why anyone would invent a guitar or learn to play it in a certain way, or why humans would bother building a pair of spacecraft to explore the solar system and then choose Chuck Berry as one of a very few representatives to say, This is who we were.

“In the Bible’s second creation account, God breathes the ‘breath of life’ into the first human, charges him with the responsibility of tending the garden, and provides him with a companion with whom he will fill the Earth with descendants. In other words, God gives humanity the opportunity to create culture.”  

This excerpt comes from a new paper by David W. Opderbeck, professor at Seton Hall University School of Law.  It is a fresh response to Mark A. Lemley’s 2015 paper, which asserted that all non-empirical arguments for the purpose of intellectual property law are “faith based” in the sense that they represent the kind of magical thinking that rejects science, data, and logic.

In May, inspired by Professor Robert P. Merges’s response to Lemley, I wrote a post discussing the utilitarian vs. natural rights views of intellectual property.  But Opderbeck, an IP scholar and theologian, offers a rebuttal that is ostensibly a response to Lemley, but which more broadly balances empiricism itself with the notion of “faith,” if we can use the term to generally describe the intangible principles that motivate humans to make choices, with or without religion.

As a secularist myself, I find the subject engaging because, contrary to many assumptions about us non-believers, atheism neither demands nihilism nor moral ambiguity nor a reduction of all human activity to the cold analysis of empirical study.  In short, one need not believe in God or practice any particular religion in order to act on “faith” that first principles exist upon which we can build a humane system of law. This is particularly important in nations where laws are meant to be secular.

Intellectual property law is particularly vulnerable to attack by academic (and not so academic) theorists because it is conceptual in nature and its utility is applied by a relatively small segment of the population.  Although society as a whole benefits from IP, the legal mechanisms are generally arcane; and so, it is relatively easy to propose and evangelize wide-ranging skepticism regarding IP’s original purpose.  Moreover, because one commonly-accepted goal of IP law is “incentive,” and because we Americans tend to view everything in the context of business—and because American creators are among those who can attain considerable wealth—it is not very surprising that many opinions tilt away from a natural-rights view of IP toward a utilitarian view.  Opderbeck, however, quarrels with the premise that we should approach any body of law—not just IP—from this perspective. “Without some first principles that justify why some form of consequentialist calculus produces normatively ‘good’ results,” he writes, “the utilitarian approach hangs in mid-air.”

Here the word good refers directly to the Bible’s creation myth, as in “God saw that it was good,” which is a theologian’s way of saying that purpose cannot be defined exclusively, if ever, by measuring specific outcomes. In fact, the values we cherish most—empathy, charity, love, creativity, civil liberty, etc.—do not derive their inherent “goodness” by virtue of measurable results.  “The legal positivism and related utilitarianism Lemley espouses … can speak in terms of maximization, but it cannot answer on its own terms why maximizing social welfare is ‘good’,” Opderbeck writes.

Where I imagine confusion is likely to occur with Lemley’s description of “faith based intellectual property” is the inherent tension that often exists between secular views, which are assumed to be rational; and religious views, which are assumed to be irrational.  As a secularist, I would agree that certain religiously-based views are either dysfunctional or mere rationalizations for cruelty toward the heterodox; but the same can be said of a strictly empiricist view as well.  And this is one of the more compelling points Opderbeck makes:  that Lemley’s view “reflects a monochromatic picture of human culture. Indeed, it reduces the human to the technological, and thereby encodes the very sort of authoritarianism it purports to eschew.”

Here, Opderbeck cites the story of the Tower of Babel as an allegory for technocracy.  “The utilitarian technocrats of our age are like Babel’s tower-builders,” he writes. The effort to encompass all human values within the rubric of what is quantifiable produces a convincing simulacrum of the ziggurat: precise, logical, geometric, orderly. It reaches to heaven, but never comprehends the transcendence that awaits it there, complacent in the belief – the faith – that it occupies the center of the universe, that there is no God or other power beyond its foundations in the Earth.”

If I may presume to place this in context to the current, public debate about intellectual property and the internet, the industry’s chronic assertion that an individual, human right like copyright “stands in the way of innovation” is analogous to the Tower builders’ blind insistence that their industry represents some grand, collective endeavor without regard for direction. Meanwhile, the curse of Babel—that we will no longer understand one another—is manifest daily in our contemporary politics.  “Utilitarian theories of culture do not produce precision and order. In the end, they produce oppression and violence, which leads to the babble of Babel,” writes Opderbeck.  Sounds like Twitter to me.

On the other hand, there is something to be said for building ziggurats, and no tower has ever reached higher or come closer to “touching the hand of God” than the Voyager mission with its gold record sampler plates of human history.  And while it is true that many religious (and even not so religious) people would not describe Chuck Berry himself as “good,” and some will have even described his music as “wicked,” I think most of us (even if we’re not from Boston) would agree that his music is “wicked good.”  This wordplay of course is echoed in the song’s polysemic title “Johnny B. Goode,” implying effort toward some goal (and morality?) not yet achieved.  So, the idea that this particular recording is among the evidence we sent into the unknown distance of eons, most likely to be received by nobody, suggests that we humans need not be blindly religious in order to consider that we do some very great things as a matter of faith. 

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.