Category: Intellectual Property

The Human Condition is Inherent to Copyright Law

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Last week, oral arguments were presented before the D.C. Circuit Court of Appeals on the question of whether copyright protection is conditioned on human authorship. Dr. Stephen Thaler, developer of a Gen AI he calls “Creativity Machine,” submitted a visual work made entirely by that machine to the U.S. Copyright Office for registration in 2022. He disclosed the fact that the image was solely produced by GAI, and the Copyright Office rejected his claim on the basis that copyright only protects works created by humans.

Thaler contested the USCO rejection, and when the Office stuck to its guns, he filed suit (see Thaler v. Perlmutter) claiming that the “human authorship” doctrine is an invented regulation because it is not stated anywhere in the Copyright Act. He further argues that the work made for hire (WMFH) doctrine, which is part of copyright law, should be read to find that the owner of a GAI may claim copyright in the outputs of that system. Failing that, he presents theories analogizing copyright rights to laws governing the ownership, transfer, or sale of other forms of property. Thaler lost in the district court and then appealed to the D.C. Circuit.

Never read too much into oral arguments, but the panel did not sound very impressed with the theories presented by Dr. Thaler’s counsel. But setting aside those tea leaves and the still-evolving doctrine regarding works produced by a combination of human creativity and GAI, it is essential that the human authorship doctrine itself should not be disturbed by any court or Congress. Doing so would render copyright (and possibly other laws) meaningless.

The Purpose of Copyright

A critical flaw in Thaler’s reasoning implies that copyright exists for the purpose of causing “creative” works to be manufactured by any means. This is wrong. Even if we only begin with the IP clause of the Constitution, the most basic and widely accepted purpose of copyright is incentive. “Authors” of “writings” are given exclusive rights (with certain limits) to control their works so as to incentivize the production and distribution of those works. In fact, copyright skepticism leans hard on the “devil’s bargain” view that rights should be more limited than they are. And while I have called that view cynical, I would hope those same skeptics agree that their entire critique evaporates without the human authorship doctrine.

Machines are not incentivized to create, and copyright does not encompass an incentive to the human to invent a machine that makes artificial “writings.” If anything, that would be the purpose of patent law. Moreover, Thaler’s reasoning moots the copyright rights he seeks to claim through registration. At scale, a mere handful of corporate-owned AIs autonomously generating millions of works implies a market in which few, if any, of those works has any monetary or cultural value. But as a legal matter, the rights attached to each work would likely be unenforceable because several judicial doctrines and tests are warped by the hypothetical case in which one AI has allegedly infringed the rights of another AI.

The “Human Condition” is Not in the Copyright Act

The autonomous AI cannot produce “writings” as a matter of law because the AI is not an “author” as a matter of law. Far from an invented rule by the Copyright Office, “authors” are humans by all historical, statutory, judicial, and common-sense reasoning. As stated in my last post about this case, while it is true that the Copyright Act does not explicitly define “authors” as humans, this is also true of other statutes (e.g., labor laws) because it would be redundant to the point of absurd to imagine such laws applying to parties other than humans. When laws say “voters,” “employees,” “victims,” “perpetrators,” etc., the consistent absence of the clarification “human” is not an indication that these terms might apply to “cats,” “monkeys,” or “machines.”

The Copyright Office may be unique among agencies in explicitly stating that its specialty in law is about protecting “human authorship,” but this guidance exists because the Office recognized, long before GAI, that a registration applicant might present a work that appears “creative” but which he did not create. An example listed in the USCO Compendium is a “piece of driftwood shaped by the sea” into what might look like an aesthetic sculptural work. Hence, it is a short logical leap to analogize pleasant looking objects shaped by nature to works output solely by a GAI like “Creativity Machine.”

Thaler’s Work Made for Hire Theory

The work made for hire (WMFH) principle is a means by which copyright rights are transferred from the author to a business entity. Because copyright rights are vested automatically in the author the moment a work is fixed in a tangible medium of expression, the author must convey in writing a transfer of those rights—even to a business she herself owns in its entirety. That transfer may be executed prior to works being created, as indeed it would be with an employment contract, but this does not alter the fact that what is transferred in advance are rights which can only vest in the human employee who posses the agency to both create works and execute a transfer of her rights.

More broadly, although it is true that non-human entities called “corporations” are “persons” for the purpose of administering various laws, and it’s true that entities can own copyrights, the corporate fiction does not alter the fact that humans remain at the center of activity regarding various rights and liabilities. For instance, if the human managers of a company use machines to engage in criminal copyright infringement, it is the humans, not the machines, who will be sent to jail.

As a threshold matter, nothing output by the autonomous AI is a work of authorship because no rights were, or could ever be, automatically vested in the machine upon fixation of those works. There simply are no copyright rights to be transferred. The fact that a corporate entity invents and/or owns the GAI is irrelevant and is little more than a distraction as an analogy. Human employees or contractors are not owned by their employers, which brings us to another inapt comparison some have made.

Let’s Leave Slavery Out of This

During oral arguments, one of the judges asked whether the creative works of slaves were ever protected by copyrights owned by masters. It’s an analogy I’ve heard raised before, and although I do not presume to read anything into the judge’s question, the comparison is as ugly as it is unfounded. A slave is a human being robbed of all agency, and even if one could find evidence, under that ancient and barbaric practice in American law, that a slave’s “writing” was claimed by a master for copyright protection, this would say nothing about the “human authorship” question presented in Thaler. If nothing else, the hypothetical theft of creative expression from the slave by a master did not inform the WMFH doctrine in modern copyright law. Meanwhile, a GAI neither possesses agency to rob nor rights of any kind to infringe. The AI is neither slave nor employee any more than Dr. Thaler’s coffee maker.

Analogies to Other Property

Dr. Thaler argues that ownership of the GAI may be analogized to the farmer who is, of course, the first owner of the fruits of his apple orchard. Here, a court should make short work of the fact that copyright law distinguishes physical property (chattel) from copyright rights. For instance, the buyer of a painting does not necessarily purchase the copyright rights in the expression fixed in that painting. The market value of certain original works of modern art is unrelated to the fact that some of those works may not qualify for copyright protection at all. The value of a first edition book as a rare object is unrelated to the fact that the expressive work in that book may be long in the public domain. Examples abound.

Under these same principles, Dr. Thaler is absolutely permitted to print a copy of the AI-generated image called “An Entrance Into Paradise” and to sell that print as a physical object in any market he chooses. That print and any subsequent prints he makes comprise his physical property just like the farmer owns his apples before sale. But just as none of those apples embodies any copyrightable expression, the same is true of “A Recent Entrance to Paradise,” even if the observer sees in that image something we call “art.”

Put another way, if the skin of one mutant apple inexplicably manifests an image of the orchard where it was grown, the farmer is free to sell this marvel to the highest bidder, but he has no claim of copyright in the image itself. He can print tee shirts and mugs and change his orchard’s name to capitalize on the miracle apple. He can obtain a trademark on the image used in commerce and even start a Cult of the Miraculous Apple, if he is so inclined. But just like the sea-sculpted piece of driftwood, the phenomenon of the image on the apple is not a work of “authorship” under copyright law.

Big Tech’s Big Lie

To those tech companies who might advocate Dr. Thaler’s position, it is hard not to admire their gall. Not only has the tech industry spent about 20 years trying to eradicate the copyright rights while claiming to support creators, but it has done so behind a wall of separation between the “conduct” of its machines and potential liabilities stemming from that “conduct”—even for dangerous design flaws. By Silicon Valley’s logic, if a social media algorithm motivates a teen suicide, the tech company should be shielded as a neutral party, but if the same company’s AI generates some music, the company should own copyrights in that work as if the AI made “creative choices” at the direction of the company’s owners. These and other hypocrisies are on full display as we confront artificial intelligence.

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Site Blocking Is Effective Worldwide Says New Report by IP House and DCA

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Overseas and Out of Reach:  International Video Piracy and U.S. Options to Combat It, released today by IP House and Digital Citizens Alliance (DCA) is one more reason the U.S. Congress should adopt site-blocking legislation to protect American creators and consumers.

Thirteen years ago this coming January, Congress shelved bipartisan legislation that was designed to restrict foreign-based criminal enterprises from access to American consumers. Generally referred to as “site-blocking,” the focus was (and remains) combatting media piracy operators who illegally distribute or perform motion pictures, music, publications, etc.—most of which are produced in the United States. In 2011/12, Silicon Valley funded a multi-lateral disinformation campaign that frightened people into believing that site-blocking would chill speech, sidestep due process, and “break the internet.”

None of those allegations were true then, and if Congress revisits site-blocking, which it should, lawmakers can rely on the new IP House report showing that more than 50 countries have implemented some form of this piracy mitigation strategy without any of the negative consequences foretold by Big Tech and its network of hacktivists. Unsurprisingly, the report reveals that speech rights, due process, and functioning internet services persist in nations that have had site-blocking in force for about a decade or more.

Contrary to those who predicted that more access to more media would reduce piracy, Americans have more access today than they have time to consume, and yet piracy grew by 36 percent between 2021 and 2022, during which time, 13.5 billion visits to film and TV piracy sites originated in the U.S. Meanwhile, to those who claimed that site-blocking was too risky because piracy cannot be restrained, the report demonstrates that site-blocking measures have resulted in increased traffic to legal platforms for media entertainment.

Three separate studies—focused on the United Kingdom, Portugal, and Australia—found that when sites were blocked, traffic decreased to those sites. The decrease was substantial; traffic decreased by 89 percent in the United Kingdom, 70 percent in Portugal, and 69 percent in Australia.

Even if skeptics choose to doubt that, say, Russia is a reliable speech-right and due-process country, fair enough; but Australia, Canada, the UK, France, Germany, and Sweden are among the nations with site-blocking measures in force while reporting no harm to protected speech, the functioning of the internet, or the kind of indiscriminate over-blocking that Big Tech and its “digital rights” allies insisted would be inevitable. Of course, much of that hyperbole has ebbed amid a more sober understanding that the internet is not the boon to democracy Google et al. proclaimed. So now, perhaps, we can have a sober discussion about the rationale for site-blocking and how it is implemented.

How Site-Blocking Works

As the new report describes in detail, most sophisticated pirate platforms operate between the shadows of online anonymity, in physical jurisdictions beyond the reach of U.S. law enforcement, and “in concert with other criminal entities.” As a $2bn+ industry, these enterprises have the resources to build nimble, complex systems, and so, shutting down one of the major operations and/or convicting the owners is nearly impossible—even with cooperation among friendly nations. For instance, the infamous Megaupload founder Kim Schmitz (Kim Dotcom) was arrested in New Zealand in 2012, but it was only this past August when that government agreed to extradite him to the U.S. to stand trial.

In response to the challenge of stopping “out of reach” criminals, site-blocking prevents, or at least limits, foreign illegal platforms’ capacity to reach consumers in the target nation. To implement a block, a complainant party (e.g., a major owner of IP being infringed) bears a high burden of proof to show (in the U.S. it would be a federal court) that a particular site is dedicated, or substantially dedicated, to mass piracy. If the court orders a block, the major ISPs in that nation are then instructed to restrict access through various means like DNS blocking, blacklisting URLs, etc., depending on the nature and structure of the pirate operator.

Piracy is About Harm to Creators and Consumers

Nearly 80 percent of piracy sites delivered malware-ridden ads to their users….More than half of the $121 million generated ($68.3 million) from malvertising came from U.S. visits to these sites.[1]

Even if site-blocking were solely about mass theft of creative works, it is absurd that the U.S., as the world’s largest and most diverse producer of such works, lags so far behind other nations in adopting this commonsense strategy to mitigate harm to American businesses. But in addition to the new report’s evidence that site-blocking has been effective without significant negative consequences, Congress must also recognize that both media piracy and cybercrime in general have become more sophisticated in the last decade.

For instance, two of the more popular modes of media piracy are the video on demand (VOD) and internet protocol TV (IPTV) models whereby operators sell subscriptions to platforms that look like Netflix or Hulu, but which stream and/or enable downloads of media files that are obtained and stored illegally. Many consumers are aware that these sites are piracy-based, but because the platforms look and feel like legit platforms, many consumers may not be aware that they are paying criminal enterprises, making themselves vulnerable to cyber-attacks and/or supporting a broad range of unsavory activity, including extortion, narcotics, human trafficking, and terrorism.

Al-Manar is a Lebanese television outlet operated by the extremist political party Hezbollah and is banned from operating in the United States after the U.S. government labeled it a “Specially Designated Global Terrorist entity. Nevertheless, Al-Manar was offered on at least half of the piracy IPTV services…

Several DCA reports have presented substantial evidence of a nexus linking mass media piracy to organized crime, and as this new report states, “The more profitable piracy is, the more likely organized criminals are or will become involved in it.” Past reports have shown that platforms are major vectors for malware, including ransomware and remote access trojans (RATs) used to slave computers, or that visitors to pirate sites are “disproportionately vulnerable to credit card fraud.”

Meanwhile, it is hard to miss the fact that buying ordinary products online today, even on major ecommerce platforms, requires heightened vigilance to avoid counterfeits that may be faulty or dangerous.  Add to this chaos the potential of AI to amplify a broad range of assaults on American institutions, businesses and consumers, and it is clearly a moment for Congress to fan away the dust of the “Stop SOPA” campaign of 2012 and reaffirm that site-blocking is a practical tool in defense of the public interest. “The lack of evidence of abuse suggests that site-blocking orders are fair, rigorous, and issued only in legitimate cases of large-scale piracy,” the report states. That was predictable more than a decade ago. Time to catch up.

[1] IP House report citing this article.

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Chamber of Progress: Old Rationales for a Brave New World

old rationales

The Chamber of Progress launched an initiative called the “Generate and Create” campaign to “defend fair use” and “promote AI creativity.” I don’t know whether they bought this campaign used from the basement of Fight for The Future or Electronic Frontier Foundation, but the following statement is worn-out rhetoric that sounds even weaker defending AI as a mode of production than it was defending online platforms as a mode of distribution:

To combat the growing legal and policy copyright threats against generative artificial intelligence, Chamber of Progress announced a new campaign, Generate & Create, highlighting the creative benefits of generative artificial intelligence and supporting established fair use protections for AI training and output.

The pro-creator message is a remix of a remix of Lessig’s “remix culture” argument against online copyright enforcement—a narrative which begat the “we’re all creators” argument against copyright rights. Instead of YouTube enables creators to break free of “gatekeepers,” now it’s AI enabling the same emancipation, though as discussed in this post, it’s hard to fathom who the “gatekeepers” are this time.

Meanwhile, the promise to “defend fair use” is code for “we’re funded by Big Tech to tilt at windmills while we lose legal arguments.” One does not “defend fair use” the way one defends a right to read banned books or a right to reproductive healthcare in the same states that like to ban books. There is no legislative agenda to abolish or amend Section 107 of the Copyright Act. Fair use is a balancing test courts apply in certain copyright infringement cases, and on the headline question as to whether machine learning (ML) with copyrighted works is exempted by fair use, there is nothing “established” about that answer despite CoP’s implication to the contrary.

Although fair use cannot be applied generally (i.e., it is a case-by-case consideration), it is true that all the copyright infringement claims against the various AI developers arise from the same general conduct and, therefore, invite similar or identical fair use defenses. Cutting to the final chapter, if Open AI loses to New York Times and Udio loses to UMG et al. in the Second Circuit, those outcomes are likely to be controlling on the fair use question of ML. Even if any of these cases goes to the Supreme Court, the likelihood of a reversal of an opinion out of the Second Circuit—so prolific on fair use case law—is a bet I wouldn’t make.

Nevertheless, the argument will be presented, and it goes something like this:  Gen AI breeds new creative works, in part by breaking down “barriers” for would-be creators, and because this productivity is consistent with the purpose of copyright, ML serves a transformative purpose and is, therefore, fair use. Notwithstanding the fact that a defendant can win on the transformative question and still lose on fair use overall, I suspect the AI developers may find their very expensive machines described by the courts’ precedent language as “slightly transformative.”

But AI is revolutionary! you might say. How can it be only “slightly transformative?” Answer:  for the same reason the Internet Archive’s Open Library is “slightly transformative”—because its purpose was a substitute for licensed ebooks. What is different about GAI, of course, is that it is generally a substitute as a mode of production more than as a mode of distribution, and to complicate matters, some professional creators are using AI tools and deriving benefits from those uses. So, if that sounds like the answer is “it depends,” welcome to the fact-intensive nature of the fair use defense, which cannot be broadly “defended” in the sense the CoP proclaims.

CoP et al. will promote the argument that because GAI fosters the production of more “creative works,” this predicted increase in output fulfills the purpose of copyright law. But the reason I put “creative works” in quotes is that for every 100 sound recordings to come out of an AI product like Udio, somewhere between an unknown and zero percent of those sounds will be “creative works” as a matter of law. Copyright only protects human authorship of creative expression, and that doctrine will not—and should not—change. Meanwhile, the question as to what the human creator must do in collaboration with GAI for the human to claim copyright in the resulting work is an evolving doctrine—one that is several years, and several lawsuits, away from becoming guidance.

With a product like Udio or Suno, where the business model depends on consumers generating music with a few simple prompts, it is fair to assume that the vast majority of the music produced will not be “creative expression” as a matter of law. And because “creative works” that are not protected by copyright (i.e., are not human authorship) cannot reasonably be held to serve the purpose of copyright, fair use should be foreclosed as a defense of the generative machine.

In response, we will see CoP and defendants argue that because the product is already being used by professional creators, products like Udio or Suno serve both copyright and non-copyright purposes. While plausible, this defense is where I believe the courts may find the GAI’s purpose to be only “slightly transformative.” This is because the dominant purpose—indeed the only ROI available to the developers—is one that primarily does not fulfill the purpose of copyright and which, in fact, serves as a substitute for works that do serve the purpose of copyright.

Further, the consideration of GAI as a tool for creators in furtherance of copyright’s purpose runs headlong into the nascent doctrine as to how and how much use of GAI results in a protectable work. That question is a case-by-case consideration at a granular level. One musician’s use of Udio may produce a copyrightable composition and/or sound recording, while another’s use of the same product in a slightly different manner may have the opposite result. Considering the uncertainty of these hypotheticals to come, it is hard to imagine how the courts could find today that the product at issue favors a finding of transformativeness strong enough to carry the whole fair use analysis.

Chamber of Progress et al. will flood social media with anecdotal arguments, like disabled persons empowered to create thanks to GAI, or the whimsical notion that “machines learn the way people do.” These and other rationales for GAI’s value deserve specific responses, some of which I shall write. But in general, I predict these stories, like Lessig’s “children of YouTube,” will play well with some segment of the blogosphere but then, as legal arguments, will join the pile of similar fair use defenses lying on the floors of the federal courts.

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