Tag: copyright

Thaler Asks the Court to Make Copyright Policy

Thaler

On October 30, counsel for Dr. Stephen Thaler requested that the U.S. Supreme Court hold its Petition for Certiorari in Thaler v. Perlmutter until after the Court rules on the matter of the dismissal of Copyright Office Director Shira Perlmutter by the White House in May. As the letter states, “The Blanche and Slaughter cases consider whether Director Perlmutter, a named party in the matter for which Dr. Thaler filed a Petition, shall continue in her position at the Copyright Office. As such, it has significant relevance for the outcome of the instant matter, particularly because her termination appears to be related to her stance on copyright for works created by artificial intelligence, which is the focus of Dr. Thaler’s case.”

Notwithstanding the Court’s obligation to decide whether the President has the authority to remove the head of the Copyright Office, there is little more than rumor and assumption that Director Perlmutter was dismissed because of her “stance” on artificial intelligence. And even if she was dismissed on that basis, it should have no bearing on whether the Court will weigh Dr. Thaler’s legal arguments, which are not in conflict with Perlmutter, but rather with the history of copyright law.

Most importantly, the human authorship doctrine, which Thaler seeks to erase, is not a philosophy unique to the views of Director Perlmutter, and the question is entirely separate from those raised in the jurisdictional matters relevant to the Blanche and Slaughter cases. The Court has ample guidance to find that the human authorship doctrine is well-founded in both the statutory and history and tradition of copyright law, and it should decide whether to grant cert on that basis.

Instead, with his request to hold cert, Dr. Thaler implies that the Court should wait to see whether a new appointee, friendly to the interests of AI developers, might replace Director Perlmutter. But even if that will be the result of the Blanche and Slaughter decisions, the Court is aware that 1) the Copyright Office, in its advisory capacity, does not make copyright law; and 2) Thaler’s argument for omitting the human authorship doctrine would have significant statutory, case law, and constitutional implications irrespective of who leads the Office.

Especially after the Court’s decision in Loper Bright Enterprises, overturning Chevron deference, it seems inconsistent to argue that the leadership of an agency, which has never been accorded Chevron, is in any way determinative of the foundational question presented by Dr. Thaler. In my view, the Court should deny cert on the grounds that the D.C. Circuit ruled correctly, but if it agrees to hear the case, it should not be distracted by the notion that copyright’s core principles are mere matters of one party’s opinion.

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.

Copyright and AI in a World of Whiplash Public Policy

copyright

I have not added a copyright post here since March 19, when the DC Circuit Court of Appeals affirmed in Thaler v. Perlmutter that works produced autonomously by generative AI (GAI) are not protected under U.S. copyright law. Although it is good to see the human authorship doctrine in copyright left undisturbed, it is a fleeting moment of sanity within a warped national reality.

As reported earlier, Open AI appealed to the administration’s focus on China as a basis to argue that “beating China” requires ignoring the copyright claims of authors whose works are used to train AI models. Not only is that claim wrong on it’s face, but the conduct of the current administration vis-à-vis civil rights forces millions of Americans to ask whether China is an adversary or a role model.

One mirror in the funhouse reveals a compelling bipartisan hearing held by the Senate Judiciary Committee, Subcommittee on Crime and Counterterrorism, where Chairman Hawley and colleagues from both parties offered strong endorsements for the courageous testimony of Facebook whistleblower Sarah Wynn-Williams. Focused primarily on Meta’s engagements with the Chinese Communist Party (CCP)—and Zuckerberg’s lying to Congress about that very issue—the committee cited other abuses described in Wynn-Williams’s book, like the company intentionally targeting vulnerable teens. (More about the book Careless People in another post.)

Ordinarily, I compartmentalize copyright matters from other criticisms of Big Tech, but here, the stories overlap, even if Meta is the only target of the committee’s investigation at this time. First, throughout her testimony, Wynn-Williams repeats the theme that Meta used the “but China will win” argument to oppose Congress taking any meaningful regulatory action. This alone should cast doubt upon Open AI et al. making the same argument as a rationale for mass copyright infringement for model training. As Senator Klobuchar noted, there was no basis for prior claims that enforcing various consumer safeguards (e.g., Kids Online Safety Act) would be counter-productive to national security, and in that light, Congress should decline to believe the same story in regard to copyright infringement.

Meta may be unique—or uniquely situated—as a clandestine partner to the CCP, but it is also notable that the committee mentioned the role of Meta’s Llama AI and heard Wynn-Williams’s testimony that the product was used by the CCP for “AI weapons” and for the development of the Chinese LLM DeepSeek. Further, Wynn-Wiliams offers a theory about the open source versus closed model AI competition in the marketplace. “There’s a lot of money on the line,” she says. “In some ways you could say, if you want open source to prevail, it helps to have a strong threat from a Chinese model so you can say that it’s really important that America wins, and we’re the American open-source option. And I think you can see the way that strategically plays out.”

“But China will win” is pretty much what Open AI told the Office of Science and Technology Policy in its letter arguing that machine training with copyrighted works is per se fair use. But looking at Meta (which is currently being sued in the Kadrey case), consider the perspective:  in developing Llama, not only did Meta scrape the literary works of millions of authors and journalists, and not only did it source pirate libraries for that purpose, but it also deployed that same AI power in the interests of a nation that brutally kills freedom of expression. Yes, of course, I’m thinking the same thing because it’s unavoidable. The current U.S. administration has engaged in multiple First Amendment and other constitutional violations, including assaults on the free press, and thus, the policy whiplash.

Couple these optics with the volume of evidence that the real power behind the destruction of the administrative state is a small group of tech billionaires pushing an anti-democracy ideology called the neo-reactionary movement (NRx), and the idea of advocating creators’ rights seems all but futile. After all, is it remotely sane to think that an administration of semi-literate, 1A-infringing, book banners will care about the rights of authors—let alone reject the tech-bros who wrote the destruction manual for the United States?

Setting aside the copyright questions raised by GAI training, Big Tech’s wanton harvest of artistic and intellectual works as lifeless raw material is perhaps the ultimate expression of the cyberlibertarian’s disdain for human beings as mere repositories of data to be exploited and manipulated. The rhetoric of Big Tech ideology—from 4Chan to the halls of academia—is the authoritarian principle that individuals must be sacrificed for the sake of the collective. All rights are a nuisance to the tech oligarch, and authors are the last people any authoritarian wants to empower.

Open AI’s claim that mass copyright infringement is necessary to “beat China” is paradoxical—either willfully or naively blind to the fact that when we treat works of authorship as mere fodder for the machine, we don’t beat the CCP; we emulate it. Further, not only is the claim overstated that GAI development is a matter of national security, but again, what does “national security” even mean at present? Concepts like American interests, values, innovation, global security, etc. are all diminished, if not wholly swallowed, by the reckless destruction of the principles and institutions that distinguish America as a leader among democratic nations. And copyright rights are in those same crosshairs.

In response to copyright’s critics, especially those in academia with Big Tech funding their work, I have argued that the diversity and scope of America’s creative output has been essential to its strength as a democracy. Whether one looks at the economic value of the core copyright industries, the cultural value of diverse creative expression, or both, the rationale for intellectual property is to incentivize useful innovation and legitimate greatness.

American authors—from historians to rockstars—are the legacy of an aspiration expressed by Noah Webster, the father of American English and of American copyright. In 1783, advocating the first state copyright law in Connecticut, Webster argued that “America must be as independent in literature as she is in politics—as famous for arts as for arms.” By contrast the “greatness” proclaimed by Trump is tautological and brittle just like Big Tech’s claims to “innovation” are often vague and misleading.

As proposed in my book, the inclusion of copyright in Article I was one of the more egalitarian and democratic choices made by the founders, even if they did not wholly grasp its potential. At the most basic level, copyright incentivizes creative expression by any citizen anywhere, and the American model largely fulfilled that traditional Republican principle that the market, not the government, decides what is successful.

The copyright questions presented in roughly 40 cases are difficult and novel. Moreover, the facts presented vary, and thus, the outcomes will vary, especially on questions of fair use. In the meantime, it is clear that at least some of the major AI developers are engaged in a campaign to appeal to the current administration to treat copyright rights much as it is treating other constitutional rights—as principles to trample in a march toward something very un-American.