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USCO Issues 2nd Report on Artificial Intelligence: Copyrightability

copyrightability

“Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. At the other extreme, if content is entirely generated by AI, it cannot be protected by copyright.” – Copyright and Artificial Intelligence Part 2, Copyrightability, USCO –

Last week, the U.S. Copyright Office released Part 2 of a planned three-part report on copyright and adjacent IP matters concerning the use of artificial intelligence. The new report expresses the Register’s views about the copyrightability of works when they are produced in some way with the use of AI. In summary, the Office reaffirmed the doctrine that human authorship is required for copyright to attach to a work at all; that copyright should not protect expression created by generative AI; and that the use of assistive AI should not disqualify a work for copyright protection.

Before proceeding, it’s important to remember that the question of copyrightability, or “authorship,” with AI tools is separate from the legality of unlicensed use of creative works for the purpose of “training” these models in the first place. As argued in other posts, most machine learning (ML) with unlicensed protected works should be held to be mass copyright infringement and should not be exempted under the fair use doctrine. Nevertheless, on the assumption that AI tools for creative work will continue to exist, the question of copyrightable authorship with these technologies is an important and ever-evolving doctrine.

Generative AI (GAI) and Copyrightability

The most difficult copyright question regarding generative AI (GAI) concerns works made with a combination of human-authored and AI-generated expression. As the Office report emphasizes, the question itself defies bright-line guidance because it is inherently a case-by-case, fact-intensive consideration that can only be weighed in the courts. That said, the report expresses a general view that GAI apps do not presently allow the user sufficient control over the expressive results to claim ownership in the outputs.

While the Office recognizes that selection and arrangement of GAI material can meet the threshold for copyrightability, and it leaves open the possibility of technological advancements to enable greater “control” of GAI tools, the report argues that GAI is presently a “roll of the dice” as a creative process. “No matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains,” the report states. Acceptance is described as “authorship by adoption,” which is roughly the equivalent of claiming copyright in a work one finds rather than creates.

What this means as a practical matter is that creators may claim protection of their expressive contributions to works that include GAI material, but the latter should be considered unprotected and, therefore, disclaimed in a registration application. We shall see whether the courts agree with the Office, most immediately in the case Allen v. Perlmutter where Jason Allen argues that the nature and variety of prompts he used for his visual work were not like rolling dice but were instead deliberate steps toward creating his mental conception of an image.

Regardless of how Allen is decided, it will only be the first major litigation addressing the mixed human/AI question at issue. This highly subjective consideration will remain a case-by-case matter for the foreseeable future, even if certain GAI apps provide greater “control” for users per the Office opinions.

Assistive AI (AAI) Does Not Limit Copyrightability

“The Office agrees that there is an important distinction between using AI as a tool to assist in the creation of works and using AI as a stand-in for human creativity.”

As a creator, I appreciate the Office distinguishing GAI from assistive AI (AAI) and stating that the latter should generally not disqualify works from copyrightability. For instance, if one uses AAI to expedite color correction in a group of photos or to more efficiently check and make grammar recommendations for a manuscript, one need not disclaim the use of AI in these contexts. Likewise, it is important that the Office recognizes that AAI used within a larger work (e.g., to fix a scene or create an effect in a motion picture) is not a basis to limit the protection of the whole work.

While there may be lines inevitably crossed (e.g., an AI suggests, and the writer copies, whole paragraphs in a text), this would arguably be a case when AAI becomes GAI. Nevertheless, resolving protection in this gray area of authorship is likely a matter best left to the courts and not a line easily drawn by the Copyright Office. In practice, even if I did use AAI in my own work, I would not disclaim that use in a registration application, but if I allowed AI to truly write some material, I would disclaim that and not submit a fraudulent application.

Creators should remember that under Unicolors v. H&M, an innocent error on a copyright registration application is not a basis to void the registration. It is important to make a good faith effort to claim the human-made expression and disclaim the AI-generated expression, but the Supreme Court set a precedent that creators should not be penalized for an imperfect understanding of difficult questions of law when submitting an application.

It is understandable, of course, that creators want certainty, but in this report, I think the Office provides sound guidance for the moment while cases like Allen work through the courts. It would not be acceptable to simply default to protecting all GAI material while so much “AI slop” floods the market and, among other things, threatens to undermine the incentive purpose of copyright. For the author using AI in conjunction with her own talents and expressive capacity, we are at the leading edge of this discussion. For context, publishing has existed for a few centuries, but defining “publication” in U.S. copyright law still defies bright-line definition to this day. Hang in there.

Your Narrative About TikTok is Probably Wrong (but so what?)

tiktok

One story that trended (e.g., on BlueSky) about TikTok’s day of shutdown and revival can be summarized thus:  the intent to ban TikTok was a stunt cooked up by Republicans so that Trump could pretend to save it at the last minute. Thus, it was never about national security but was yet another grab of another platform for hard-right ideologues—and an opportunity for Trump and/or his friends to benefit financially.

I get why that seems rational, but it doesn’t quite square with the facts. Before describing those facts, however, let’s acknowledge and set aside a few assumptions based on emotion.

First, it is only natural for TikTok account holders to feel angry at the thought of losing a platform they enjoy or use for business or core communications.  When something we like might be taken away as an act of law—let alone a forum used to express oneself or make a living, it feels like an unwarranted attack on one’s interests and civil rights. This remains the unresolved paradox of all social media platforms:  that holding them accountable is perceived by one group or another as an abridgement of the rights of the platform users.

Second, Trump lying is a universal constant. He lies so often that it would be impossible for him not to contradict himself on a broad range of topics. Hence, the fact that he once said “ban TikTok,” then used TikTok for his own purposes, and then claimed to save TikTok is just his standard operating bullshit. “Biden tried to kill it, but I’m going to save it,” is one of a million sound bites or posts (amplified by asshats like Charlie Kirk) that have little to do with what happened or is likely about to happen.

Third, TikTok’s own messaging thanking Trump etc. cannot be taken at face value. The company is acting in its own interests, as any business would. Of course, it was pure theater when the site popped back on and thanked Trump for the 90-day stay of execution while they work out a “deal.” And naturally, many TikTok users will only be glad the platform is still running and either not care or necessarily believe why lawmakers acted in the first place.

The Real Story (most likely)

No later than early 2024, both Democrats and Republicans in Congress were provided security briefings on TikTok and its relationship to the Chinese Communist Party (CCP), an adversary of the United States. Members of both parties were deeply concerned about what they learned, and thus, in early March, the House passed HR 7521 with a vote of 362 to 55. The bill had 54 co-sponsors—22 Democrats and 32 Republicans. After the bill was signed by President Biden, the law set a roughly ten-month deadline for TikTok to be sold to an entity without ties to the CCP to avoid being banned in the U.S.

So, the first point worth making is that if Trump & Co. orchestrated the TikTok law as a stunt, they did it with the cooperation of a lot of Democrats, including President Biden. Instead, it is more reasonable to assume (though admittedly difficult these days) that the TikTok bill was the result of bipartisan cooperation on a matter of national security. Notwithstanding political rhetoric by individual Members—let alone sniping from the edges by Trump—the law itself was well founded, and it is worth noting that the Republicans who supported the law could not be certain that Trump would be re-elected and, therefore, have the opportunity “rescue” TikTok, as alleged.

While I have no more inside information about those security briefings than any other observer, the most rational conclusion is that Congress had good reason to pass the TikTok law, which the Supreme Court—albeit at the 11th hour—unanimously held was not in fatal conflict with the First Amendment. This outcome, which I advocated in an earlier post, does not support the narrative that the ban was a stunt cooked up by Trump and loyal Republicans so that TikTok could be recruited along with Facebook, X, and Google as another social platform of the oligarchy.

Importantly, that narrative misses the point that just because people only lately discovered that Big Tech’s politics are oligarchical, that doesn’t make it news. The sight of Zuckerberg, Musk, Pichai, and Bezos on stage with a mad monarch like Trump was written into Silicon Valley’s Terms of Service a long time ago. TikTok is no different but for the fact that its other anti-democratic master happens to be the CCP.

What Now?

While I endorsed the rationale for the TikTok law, I am acutely aware that even if it were banned on the basis of adversarial foreign control, this would have been a remedy of closing the barn door long after the cows escaped, drowned in the lake, and the lake froze over. The adversarial effects of all social media on American democracy not only remain unaddressed, but Trump & Co. are direct beneficiaries of the kind of targeted propaganda social sites make possible. In other words, whether adversaries of American interests are foreign or domestic, mission accomplished. Chaos sown. You are here.

Just like the social platforms, Trump also disguises his personal interests as American interests, and whatever “deal” he makes to keep TikTok in the U.S. cannot be trusted. “America First,” is an Orwellian slogan—used to animate mean-spiritedness while advocating policy that directly undermines American interests, including national security. Regarding TikTok, then, there is no reason to believe that Trump & Co. give a rat’s ass whether the CCP remains tied to the platform unless that relationship is damaging to Trump & Co. personally—a group that now includes the lately recognized tech oligarchy.

Within that morass, competing narratives will continue to flow based on ideology and emotion—all feeding the social media beast while pretending to tame it. Whatever becomes of TikTok in the next three months, public perception is unlikely to match reality, which paradoxically proves both the utility and futility of the law that was designed to force its sale.

The Information Age Broke the Republic

information age
I recognize the psychological need to believe the American Republic will survive the coming four years, and I freely admit to being the biggest cynic in almost any room. But if the analogy is a shipwreck, we are already treading water with no ship or shore on the horizon. “Democracy lives in the people,” say the more hopeful pundits. Perhaps. But while it may be true that the spirit of personal liberty lives in the people, that is not the same thing as recognizing that the foundations of American democracy were rejected by the people.
 
Tomorrow, a man who showed violent contempt for the Constitution will repeat the oath to protect and defend the Constitution, and the flags decorating the very Capitol he attacked will lead many to think this is still the United States. It is not. Now begins the story of an ersatz America (an Idiots’ Interregnum) where the nation floats unmoored from the rationales for its own existence. The question, therefore, is not survival but revival. Can the Republic be restored after the electorate decides it no longer matters?
 
The first time Trump was elected, I argued that this represented a vote of no confidence in the Republic, and not only would I double down on that assessment today, I believe that same faithlessness has long been evident on the far left and the far right. MAGA claims to defend the Constitution and lies about its meaning while many young Progressives shrug at the Constitution as an anachronism not worth defending. Driving both sentiments is a dangerous level of constitutional illiteracy amplified by the so-called information age and weaponized by masters of the technology. When Madison et al. studied the fates of republics and democracies to learn what makes them fail, they could not have imagined a technology that would one day confound reality itself at the speed of light.
 
It is difficult in any society to distinguish policy from political theater, but the phenomenon is acutely frustrating in a nation this important, where the population knows more mythology than history. Trump personifies that illiteracy—a consequence of both classic illiteracy (i.e., a failure to teach) and cultural illiteracy (i.e., a loss of faith in core principles). In combination, these traits make a mockery of our sacred words, and when Trump takes the oath he already violated, the promise he apes back to the Chief Justice will be purely performative. If the President’s Oath of Office is just for show, whose oath matters? The implications, rippling out to the clerk of the smallest town in the smallest county, are toxic to a nation that was literally invented with words and kept by generations of Americans vesting those words with meaning.
 
The United States has always been a work of paradoxical genius. More than any nation, its identity is an idea expressed in highly intellectual terms securing the right of every citizen to remain blissfully ignorant about the underlying principles of that idea. The First Amendment, the Progress Clause, and the writings of the key founders all express a foresight that upholding the Constitution would require a broad literacy not easily attained by a whole nation. Today, that original paradox is manifest in the fact that immigrants seeking citizenship get better civics educations than most natural born citizens.
 
For the native citizen, we instill constitutional illiteracy at an early age with flashcard concepts that rarely mature as our students do. For instance, the short answer to the 2nd Amendment flashcard has always been “the right to bear arms,” a textual redaction eliding an important national security debate at the founding period that, if taught, would inform a richer understanding of history and the Bill of Rights. This needlessly controversial example begs the question as to whether Americans could ever have achieved core constitutional literacy without condemning that education as either “liberal indoctrination” or “white colonialist values.”
 
Not every American—indeed almost no American—is inclined to spend hours with The Federalist or comb through Elliott’s Debates or deep-dive into the classical education that informed the framers. But basic civics literacy does not require so much academic rigor. A fourth grader can understand, for example, the difference between the state censoring speech and a private party rejecting speech. But in recent years, law school graduates serving in Congress or working at “digital rights” organizations have willfully alleged speech censorship in contexts that are aberrations of the constitutional right.
 
Of course, we Americans often overstate ourselves with words like “patriot” or “traitor” when what we really mean is political agreement or disagreement. Occasionally, an adult steps up, as Senator McCain famously did during the debate with Senator Obama to correct a woman who called Obama a traitor. But that kind of dignity is now either forgotten or scorned. We have thrown open the Overton Window, defenestrated patriots like McCain, Gore, Pence, Liz Cheney, et al. in favor of seditionists, felons, lunatics, and the patently unqualified. And I will die on the hill arguing that the catalyst of this clusterfuck is the information age—not merely driven by profit, but by a mad, narcissistic ideology sold to the public as “freedom.”
 
The words that define and shape the United States are now about as meaningful as the hashtags and memes that have diluted both denotation and connotation in that “sea of irrelevance” called social media. For more than a decade, often “liberal” tech-utopians insisted that a wall of separation protected real life from the “Wild West” of cyberspace, assuring us that the worst aspects of the latter would not have any tangible effect on the former. To say otherwise was to earn the name “Luddite,” and there will be no apology from Big Tech’s evangelicals at EFF et al. A few Silicon Valley refugees offered their mea culpas the first time they noticed the experiment escaping the lab circa 2017, but those voices, like real Republicans, have been marginalized. 
 
Now, the destruction wrought by the information age is holistic. With Senate confirmations of dangerously unqualified political hacks like Hegseth, Bondi et al., the disease of constitutional illiteracy is now its own mandate. Yes, the former GOP (whatever one calls it) is craven and cultish, but it could only have been led there because the idea of American democracy is indeed not alive in quite enough of the people. And because all death is brain death, the idea of America dies when too many people applaud empty slogans like “warrior culture,” rather than engage in adult conversation about what the military, or any department, actually does. This is where the digital revolution has led a great nation.
 
Real life now mirrors cyberspace, where fools become kings. And so, we are a silly, childish nation playing with dangerous toys. America is running with scissors, and the information age that brought us to this moment offers little more than a video clip of the toddler about to impale himself. If there had truly been an information revolution, then Trump would have been the civics lesson America needed instead of the civics test America failed. It was an easy test — i.e., don’t elect people who tried to overthrow the Constitution. But that’s what happened. And the fact that tens of millions of Americans don’t believe, or perhaps don’t care, that it happened is because the information age broke the Republic.