Dr. Thaler Asks SCOTUS to Decide the GAI Authorship Question

Thaler

On October 9th, Dr. Stephen Thaler, a computer scientist and owner of the generative AI “Creativity Machine,” filed a petition for cert with the U.S. Supreme Court, seeking to overturn the DC Circuit opinion in Thaler v. Perlmutter. As discussed in several posts, Dr. Thaler’s machine independently and autonomously produced an image he titled “A Recent Entrance to Paradise” which he then submitted for registration with the U.S. Copyright Office. The Office rejected the application on the basis that protected works must entail human authorship—a rule Dr. Thaler alleges has been invented by the Office and which he claims is unsupported either by statute or the foundational purpose of copyright law. In March, the circuit court ruled in favor of the Copyright Office.

If the Supreme Court agrees to review the case, I hope it will not be distracted by the selection and arrangement of precedent employed in the sleight of hand at work in Thaler’s arguments—all true out of context, all fatal in context. As argued in an earlier post, the Courts should view GAI for the novelty that it is and not be unduly guided by case law addressing technologies that are in no way analogous. In particular, the Court should be wary of petitioners conflating distribution technology (e.g., the VCR) with production technology (e.g., Photoshop) in context to GAI, which, for purposes of the “authorship” question, is solely productive.

In that light, Thaler avers in the petition, “The last watershed moment when technology changed the world of copyright was in 1884, when this Court expanded the definition of ‘writing’ to include photography.” True, but the Burrow-Giles Court affirmed that photography is a mode of expression based on its inference of the human photographer’s creative choices evident in the photograph “Oscar Wilde No. 18.” (See post here.)

By no means did the Court forecast that a robot camera roaming the streets of New York, autonomously capturing photographs, would be the “author” of those images, or that the robot’s owner would necessarily be the “author,” absent evidence of his creative effort in the resulting images. On the contrary, even the 1884 decision, when the Court opined that “ordinary” photographs might not be protected, it prefaced what is today a court’s duty to separate the protectable elements from the unprotectable elements—i.e., identify the human authorship in the machine-made photograph.

Naturally, Dr. Thaler does not claim that “Creativity Machine” is the “author,” but rather that he is the “author” by virtue of his owning the machine and instructing it to make something. This argument relies on an erroneous claim, echoed by others, that copyright law developed as a framework for causing “creative stuff” to exist by any means. This is wrong, and to say otherwise would be to embrace the doctrine of “copyright by adoption” (i.e., literally finding a work and claiming authorship), or it would erode copyright boundaries like the idea/expression dichotomy or “things found in nature.”

For instance, a machine autonomously making a visual work is analogous to nature making beautiful things, none of which may be claimed as works of authorship on their own. Instead, a human must make a work of expression out of things found in nature, and as a rule, the “work of nature” will be excluded from protection. This is settled doctrine, which was also raised in Burrow-Giles, where the defense argued erroneously that for photographer Sarony to claim copyright in the photo at issue, this would be tantamount to granting him a copyright in the person of Oscar Wilde.

Creative Works Are Not Apples

As he did the lower court, Dr. Thaler seeks to force intangible property to conform to the rules of tangible property, as if the purpose of copyright were to grow and harvest works out of computers like fruit from an orchard. The petition states, “There is a longstanding principle in property law, sometimes referred to as accession or the fruit of the tree doctrine, under which a property owner owns property made by their property.” True. And copyright law doesn’t work that way. As discussed in an earlier response to this argument, even if a tree produces a mutant fruit that is uniquely aesthetic as a “sculptural work,” the landowner is not the “author” of that “work” as a matter of law. (He is, however, free to enter it in a county fair contest.)

All people are persons, but not all persons are people.

The petition states, “This Court need look no further than the fact that nonhuman authors such as corporations and other nonhuman ‘persons’ have been authors without controversy for over a century.” Actually, the Court need look no further than the fact that no copyright rights have ever been first vested in non-human “persons.”

Thaler continues to overemphasize the fact that the statute does not explicitly state that “authors” are human beings. The Court should not find this argument persuasive unless the aim is to unravel countless statutes in which natural “persons” are clearly implied without being explicitly distinguished from non-natural “persons.” For instance, if we follow Thaler’s logic arguing that because non-natural “persons” like corporations can be “authors” under copyright’s work made for hire (WMFH) doctrine, does this mean that a CEO who causes a corporation to fail is guilty of homicide?

Clearly, the law is replete with distinctions between natural “persons” and non-natural “persons,” though perhaps contending with AI recommends revising Title I to affirm that “persons” does not include machines. In the meantime, if the Court even hears Thaler, it should reject the semantic game posing as a rule of statutory construction. Of course, the history of copyright law does not address machines independently making “works.” It’s never happened before. And again, the WMFH doctrine affirms the human authorship principle because it requires transfer of rights vested in a human to another party, which may be a non-natural “person.”

Case Law Chaos

If the Court were to adopt Thaler’s overbroad theory of “authorship,” it would erode critical boundaries central to the analysis of a claim of infringement. For instance, with “A Recent Entry to Paradise,” on what basis would a court begin the substantial similarity analysis when some other GAI owner’s machine independently produces an allegedly infringing copy of the work? What testimony will be admissible to describe the original “author’s” expression and to compare and contrast that with testimony describing the “follow-on author’s” expression—to say nothing of a fair use defense for a machine!

As stated in the past, I think such scenarios make chaos out of the principles of “access” and “independent creation” in the analysis. Does GAI B have knowledge of, and access to, GAI A’s “works?” Or do the owners of either GAIs, as putative “authors,” have such knowledge and access based on the datasets inside their respective machines? When facing potential liability, a defendant won’t want to have knowledge of anything, but the absence of a nexus linking man’s creative intent to machine’s production is precisely why the former is not an “author” of the outputs of the latter. The potential (I think inevitable) chaos of litigating such a case would appear to moot the purpose of registering a claim of copyright in the first place.

The Court should recognize that Thaler’s overly expansive view of “authors” would be destructive to copyright law (and perhaps other law), while the Copyright Office has already articulated a more nuanced approach to GAI that recognizes its potential utility as a tool of expression. Even where the Office’s guidance and decisions (e.g., with Kris Kashtanova and Jason Allen) may be awkward in its early encounters with GAI, its affirmation of the human authorship doctrine is not an administrative invention, let alone one “overstepping its authority” into “policymaking,” as Thaler alleges.

Thaler relies substantially on a general principle that is true but, in this case, misleading. Copyright law has always adapted to new technology, but where technology has caused its contours to expand or contract, Congress and the courts have sought to retain core principles—sometimes encompassing new modes of expression, sometimes drawing new limits on the protection of creative expressions. In this regard, the Copyright Office already articulates both an early rationale and administrative process for works made in “collaboration” with GAI, and just as with photography, courts will eventually adjudicate the scope of protection in any of those works that may be infringed.

Instead, Dr. Thaler’s petition, at times written as if all use of GAI is automatically ineligible for protection, begs the Court to overreact and unravel centuries of copyright tradition by finding that no human creator is needed. This is an error as affirmed in the lower court. But for the fact that artificial intelligence is such a hot topic, I would predict the Supreme Court would decline to review this claim.

Image shown: “A Recent Entry to Pardise”

Rescuing Democracy from Democratization

democratization

Over the weekend, I had the privilege of participating in the 11th annual Mosaic Conference, organized by the Institute for Intellectual Property and Social Justice (IIPSJ) and hosted by Suffolk University Law School IP Center. Founded by Professor Lateef Mtima at Howard University, IPSJ’s mission is to “…examine intellectual property law and policy—as well as the IP regime in total—to see where full participation of disadvantaged, excluded, and marginalized groups may need redressing.”

A number of subjects were raised that will inspire some future blogs, but in the meantime, the following contains my remarks about the folly of “democratization,” slightly edited for this format:

To quote Professor David Golumbia from his posthumously published book, Cyberlibertarianism:  The Right-Wing Politics of Digital Technology, he writes, “As a rule, ‘democratization’ appears to mean tearing apart institutions, regardless of their nominal functions, including institutions whose purpose is to promote or even embody democracy.”

This is a very difficult moment to talk about knitting people and nations together when the exigent forces are so obviously centrifugal. The historian Joseph Ellis uses that word centrifugal in his book The Quartet to describe the sentiments of the newly independent American states and their reluctance to form the union, and it is hard to believe that that era, when roughly 4 million farmers barely knew the world more than 30 miles beyond their homes, might be compared to our digitally and globally interconnected present. But in my view, Big Tech’s claim to want to “democratize” everything, beginning with cultural works protected by copyright, was and remains catalytic to the struggle we now face to rescue the common cause of democracy.

In the United States, as the republican foundations that even allow room for discussions about social justice are under attack, we confront an authoritarianism that we recognize from history paired with a threat of technological feudalism that is unprecedented. At the same time that civil rights hills attained decades ago must now be reclaimed, rapid technological advancements in artificial intelligence also present new potential modes of injustice, and that challenge has many IP implications.

A simple example I have used recently begins with a friend in medical law who predicts that an AI will soon be better at reading a diagnostic scan than a human radiologist. He’s probably right, and of course, such promises, like improved healthcare, animate the political rhetoric used to promote yet another era of laissez-faire tech policy in the name of undefined “innovation.” As Jaron Lanier wrote in 2010, “People will accept ideas presented in technological form that would be abhorrent in any other form.”  I think this captures why the word innovation is allowed to sweep a million sins under a million rugs.

My friend’s medical example begs critical questions about who will own that technology in a winner-take-all market that often stifles competition, and, therefore, whether the tech will improve healthcare for more people or fewer and on what terms. Alternatively, while AI diagnostic tools might improve the quality of care for the few, will AI actuarial tools be used to deny access to the many? Of course, patent law, about which I know very little, will play a substantial role in the many questions implied by the medical example.

But in a copyright context, Silicon Valley, with the help of far too many IP academics, promoted the “democratization” of access to, and use of, cultural works via the allegedly free platforms. This egalitarian rhetoric was so appealing that even many professional creators echoed the sentiment and bought into the promise of working around traditional gatekeepers and forging more “organic” connections with fans. Today, fewer professional creators fare as well as their “pre-democratized” forerunners.

In that PR campaign funded by Silicon Valley, the making available rights and derivative works right in particular were portrayed as anachronistic principles exclusively serving Big Media “landlords” controlling all culture and information. And while I might join certain criticisms of Big Media, especially consolidation of the industry, the “landlord” metaphor was and still is applied even to the independent artist who might presume to enforce her copyright rights.

More broadly, the underlying hypocrisy of this rhetoric is that “landlord,” of all words, is a far more apt description for the owners of virtual real estate, where information does not flow freely but is manipulated by algorithms designed to maximize and monetize even the most toxic forms of engagement. And of course, this includes both rampant copyright infringement and legal uploads of works that have now been harvested for the purpose of training artificial intelligence.

With generative AI, Big Tech—again with the help of many in IP academia—now promotes the alleged value of “democratizing” the production of works, finally revealing democratization as the anti-humanist and, therefore, anti-democratic term that it truly is. We have several current examples in amicus briefs, academic papers, and even one court’s opinion in the Bartz case, in which parties argue that mass production of material by machines somehow fulfills the original purpose of copyright law. For those following Thaler v. Perlmutter, Dr. Thaler’s recent petition for cert at the U.S. Supreme Court argues that the Copyright Office’s affirmation of the human authorship requirement “defies the constitutional goals from which Congress was empowered to create copyright, namely, the creation and dissemination of creative works.”

This is wrongly stated, but the attempt to undermine the human authorship doctrine is, of course, consistent with Big Tech’s ideological view that individual human agency is an outdated nuisance—a bug to program around in pursuit of a grand, tech-utopian dream. Or to put it another way, the scorn for human authorship is in harmony with Mark Zuckerberg recently proclaiming that the future of companionship is one in which we have more robot friends than human ones.

Long after the dust settles on the legality of AI model training with protected works, fundamental questions of social justice in a world with generative AI will need to be addressed. In addition to many examples in which these products are already causing social harm—most acutely adverse psychological effects among children and teens—generative AI can potentially swallow, or perhaps smother, economic opportunities for diversity of expression, perhaps even accelerating the current trend of government censorship.

In that regard, I find it astounding that the copyright skeptics in academia, generally aligned with the political left, promoted democratization by portraying copyright as a tool of censorship rather than as a mode of empowerment for authors. While the free market is not a perfect answer to all challenges, the spike in sales of Art Spiegelman’s Maus after it was banned in 2022, or even the market’s response forcing the restoration of Jimmy Kimmel are, in my view, examples of why the speech right and copyright more often act in concert as a force for democratic principles.

Notably, the IP skeptics have inveighed against strong copyright rights by arguing social justice principles, as if, for instance, the right of access without copyright’s boundaries is the moral equivalent of the right to read campaign now confronting real censorship. Moreover, social justice for the artist is often omitted by that school’s overstating a purely utilitarian foundation for copyright. Not only is that perspective belied by history, but it seems to me that for an IP regime to encompass social justice values, some natural rights principles must apply.

In fact, in this light, I think it is noteworthy that rather than pursue a federal publicity right in response to AI’S potential to replicate anyone’s likeness, the NO FAKES Act currently before the U.S. Congress borrows principles from trademark, copyright, and right of publicity to create a novel IP right in one’s voice and likeness. Perhaps this moves the U.S. one step closer to some of the moral rights principles that animate copyright law in other countries.

It is no surprise that the tech industry so aggressively attacked intellectual property rights by selling the chimera of “democratization.” IP rights, at their best, foster an expansive and diverse world of competing ideas, whereas Big Tech’s interests—and the interests of authoritarians—are best served by organizing people into bunkers of competing realities. This epistemic crisis, I firmly believe, explains the wanton destruction of so many democratic institutions. And with generative AI, of course, it is easy to see how mass automation of synthetic material, posing as creative and informative works, is likely to exacerbate this problem.

Democratization is a beguiling term that no longer describes movement toward democratic forms. It exploits the language of democracy to mask an ideological contempt for democratic institutions and individual agency. It is a centrifugal force driving people, communities, and nations apart—a path to social, economic, and political anarchy, where bullies win and justice does not exist. Consequently, I would ask those in IP academia to be vigilant about the distinction between democratization and democracy and to push back on the rhetoric of the former in the hope that we can still rescue the latter.

On AI Removing Creative Constraints

constraints

A paper by Eleonara Rosati titled The future of the movie industry in the wake of generative AI: A perspective under EU and UK copyright law states the following:

…some have stressed the opportunities presented by the implementation of AI, including by advancing claims, like those made by AI video studio The Dor Brothers that at AI tools ‘are actually a purer form of expression, offering the most direct link between the artist’s brain and the end result, without the compromises required in large productions or the constraints that come with complex shoots’

The quote by The Dor Brothers raises a question I imagine many creators ask all the time—why use generative artificial intelligence (GAI) to produce anything? The answers will vary depending on the medium of expression—from the sculptor who says “never” to the audio-visual producer who says “all the time”—because beyond the legal issues triggered by GAI, the technology reframes the question of what it means to create works of expression in the first place. And this includes the question as to whether removing “constraints” is either conducive or harmful to the creative process.

Although motion picture production entails more non-creative constraints (e.g., large investments and complex logistics) than all other media, I would caution that even in filmmaking, constraints are generative of creativity. In the same way that working around copyright constraints tends to produce new creative expression, this is also true of the limitations inherent to each medium. Moreover, the idea that an artist does not want to confront the constraints of her chosen medium is misguided, and the passion to confront those challenges is not a matter of mere nostalgia.

I get what the Dor Brothers are saying, of course. The AV producer can go from script to screen without any of the costly and cumbersome production work that will frustrate, if not substantially alter, the original vision. Screenplay material becomes prompts, and the GAI outputs the AV material without the need for cameras, actors, sets, etc. Still, the extent to which the outputs more “purely” represent the mental conception in the “artist’s brain” is both a question of copyrightability and artistic integrity. How much control the AV prompter has over the resulting material will determine the extent to which he owns the rights in that material, but even with extensive control, the “purity” of the expression is not necessarily preserved by the removal of constraints.

Notwithstanding many useful applications of AI, including for various aspects of artistic work, all the talk about “democratizing” creative expression (i.e., without developing skills in various crafts) reprises that question Why? for many artists. If you don’t enjoy dealing with the constraints of clay, paint, words, light, sounds, etc., then you probably don’t really like the process of creative expression. Again, that’s not just luddite’s nostalgia. Creative expression (art) results when the unique, imperfect human confronts, learns from, and eventually masters the constraints of a chosen medium. As my friend Sandra Aistars, copyright professor and, recently, a fine art student, writes about the distinction between AI “training” and human learning:

… instead of predicting “what comes next,” artists studying masterworks are taught to unlock “how” the original artist has conveyed what is foundational to an image’s storytelling. This requires patience, humility and empathy on the part of the artist asking to learn. But it ends in developing one’s own aesthetic judgment and voice.

Aistars describes engaging with the constraints of visual artmaking by retracing the steps of masters in order to discover her own aesthetic. The process is physical, intellectual, and emotional at the same time, and most artists would ask why a creator would want to avoid engaging with the medium in this way. It is the act of confrontation and the artist’s unique mode of problem solving where the meaningful act of creating occurs for the individual.

Using GAI as a cheap or free assistant to write a boilerplate email or report makes sense, but the hyped-up marketing of these products, challenging users to push AI to “write poems or novels” is asking people to fool themselves. You might have a brilliant idea for a premise, but if you don’t want to grapple with the constraints of writing, you’re not a novelist any more than you’re the “boyfriend” of an AI companion.

Turning back to the Dor Bros.’ comment, because motion picture production entails thousands of constraints that are not necessarily generative of creativity, their point has some merit in certain applications of the medium. Specifically, a lot of their work appears to be commercial advertising at this time, and the utilitarian nature of marketing material, combined with the attraction of low-cost, fast-turnaround production cannot be ignored. Nevertheless, I would caution against the idea of a “pure” link between an artist’s “mental conception” and the end result by means of removing constraints.

Motion picture production still entails many constraints that are generative of creative expression. Just as Aistars chooses to wrestle with the possibilities and limitations of a particular pencil in her hand, the filmmaker has a complex set of “tools” that include the constraints of physical space, light, camera and lens characteristics, performers, writing, time, which must be confronted to find the film’s unique voice. And as any film student can tell you, working around constraints has often resulted in moments considered to be works of cinematic genius.

Naturally, GAI is already used to reduce or eliminate certain drudgeries in creative production, and although this also implies reducing or eliminating various jobs, that is a separate matter from the philosophical premise to which this post responds. In general, I am skeptical that a seamless, constraint-free transition from mental conception to creative expression is desirable, even if it is achievable. Constraints define the various artistic media, and it seems more likely that expression through GAI will evolve as its own medium with its own constraints. Otherwise, if GAI’s only purpose is to synthetically displace the creative process in all media, the results will likely be as bloodless as the computers that made them.

Photo by: Ponsulak