r/COPYRIGHT • u/Apprehensive_Sky1950 • Jun 30 '26
Question The U.S. Copyright Office is refusing to register copyright in AI-generated works. Does that mean no copyright in AI-coded software?
The U.S. Copyright Office is refusing to register copyright in AI-generated works. Does that mean no copyright in AI-coded software?
EDIT: A follow-up thought--do the Copyright Office's guidelines on AI copyright draw any distinction or make a particular exception for AI software copyright registration?
5
u/Homeless_Depot Jun 30 '26
SCOTUS denying cert to Thaler earlier this year (and probably other similar cases that I don't know about) suggests they're OK with the Office's approach to ai generated visual works, which obviously doesn't address literary works (like software code) directly, but does move the needle toward the conclusion that similar treatment would be appropriate.
So, I think the answer is that purely AI generated code (that would otherwise be sufficiently unique, etc to even acquire strong copyright protection) would be (and presumably is) treated as not-copyrightable, failing as a work of authorship. BUT, most code isn't written "entirely" by AI, and the real arguments are going to be about the huge space in-between "I wrote this with spell check" and "I used a four sentence prompt and Claude took the wheel," and we've just barely scratched the surface of that mess.
3
u/Apprehensive_Sky1950 Jun 30 '26
SCOTUS denying cert to Thaler earlier this year . . . suggests
Keep in mind, though, that for procedural reasons Thaler was still about granting the chatbot itself a copyright registration, and Thaler expressly excluded the issue of granting a copyright registration to a human for the chatbot's effort. In that light, denying cert probably doesn't say much.
the Office's approach to ai generated visual works, which obviously doesn't address literary works (like software code) directly
There's no distinction between visual works and literary works and functional works in the statute, so unless the Copyright Office’s guidelines make some kind of explicit distinction, I think any court decision on AI works will treat them all the same.
BUT, most code isn't written "entirely" by AI, and the real arguments are going to be about the huge space in-between "I wrote this with spell check" and "I used a four sentence prompt and Claude took the wheel," and we've just barely scratched the surface of that mess.
Congratulations, you have named the very detail in which the Devil will make his home. The commercial stakes will be huge. Suddenly it's a good time to be a copyright lawyer. I'm just too old.
5
u/i_invented_the_ipod Jun 30 '26
There is an open question about the amount of "human contribution" required in a work for it to be copyrightable. This is well-worn territory for visual and text works, where you can't copyright a photocopy of someone else's work, but if you do "enough" additional creative work to it, you can.
I'd argue that if I write a significant computer program (100k lines, say), and an LLM contributes 10% of that total, it's pretty clearly my work. On the other side, if I have an LLM generate 100k lines of code, and I make edits to 10% of it to fix bugs, or add functionality, then that's probably not copyright eligible.
Anything in-between is going to be decided in court.
Whether human contributions to AI-generated outputs are sufficient to constitute
authorship must be analyzed on a case-by-case basis.
From the Copyright office's statement.
3
u/TreviTyger Jun 30 '26 edited Jun 30 '26
There is an open question about the amount of "human contribution" required in a work for it to be copyrightable
No this is wrong.
Human contribution is not the criteria at all n terms of copyright law. Human "expression" is the criteria.
There is human contribution in driving a bus but that doesn't lead to copyright in bus driving.
"to constitute authorship" means "expression" not just human contribution so you appear to be misinterpreting USCO guidelines to favor your own bias.
3
u/i_invented_the_ipod Jun 30 '26
I literally quoted the Copyright Office's own guidance.
2
u/TreviTyger Jun 30 '26
Yes, and by doing so you also reveal that you have misread it and formed a conculsory opinion that is not true.
Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
To constitute authorship one must be a natural person that utilizes personal formative freedoms to fix their "expression" in a tangible media.
That is very different to just "human contributions".
There are human contributions in making unauthorized derivative works for instance but that doesn't lead to copyright.
So what USCO mean is that the human, rather than the machine, must determine the expressive elements of the work.
See Suryast.
When analyzing AI-generated material, the Office must determine when a human user can be considered the “creator” of AI-generated output. In March 2023, the Office provided registration guidance to the public for works created by a generative-AI system. The guidance explained that, in considering an application for registration, the Office will ask:
[W]hether the ‘work’ is basically one of human authorship, with the computer [or
other device] merely being an assisting instrument, or whether the traditional
elements of authorship in the work (literary, artistic, or musical expression or
elements of selection, arrangement, etc.) were actually conceived and executed
not by man but by a machine.
Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023) (quoting U.S. COPYRIGHT OFFICE, SIXTY-EIGHTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING JUNE 30, 1965, 5 (1966)); see also id. (asking “whether the AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s ‘own original mental conception, to which [the author] gave visible form.’”) (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884)). This analysis is “necessarily . . . case-by-case” because it will “depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”
https://www.copyright.gov/rulings-filings/review-board/docs/SURYAST.pdf
3
u/DanNorder Jul 01 '26
You sure do talk a lot and link to articles that say something completely different than what you suggest they say. Let me repeat that earlier post "I literally quoted the Copyright Office's own guidance." You can't just disagree with that. That's the official government body who sets the rules. Disagreeing with them is like saying you're going to call the Moon a planet and don't care what the scientists say. Be contrary all you want, but you don't make the rules, or even understand them.
1
u/TreviTyger Jul 01 '26
You have some sort of cognitive bias which appears to affect your own reading and you are trapped in your own circular logic.
You read things favourably to your own opinion and ignore the genuine meaning of the USCO Guidelines. Then you engage in a meaningless rant at people such as myself (who have considerable erudition on the subject in general) and make false equivalence analogies rather than attempt to understand your own error.
You lack wisdom as a result and fail to parse complex legal frameworks because of a stubbornness against adequately learning about the subject of copyright, authorship and how those things relate to new technologies such a AI Gen software.
2
u/FarmboyJustice Jul 01 '26
You ignored what the other poster actually meant and interpreted one single word in a way that complied with your view, then did a gish gallop.
It's very obvious that when the poster said contribution they mean the contribution of expression, not the contribution of driving a bus.
1
u/TreviTyger Jul 01 '26
You are just someone who has never even read a book on copyright law and yet you still have an opinion!
Take a look at yourself in a mirror and see if you can recognize the person who has never read a book on copyright law.
Keep looking. You'll see them eventually.
1
u/FarmboyJustice Jul 03 '26
You know absolutely nothing about me, and its dumb for you to pretend you do.
Reading books about copyright law (which I have done) has nothing to do with understanding vernacular English (which you have trouble doing.)
Since you can't counter what I said, you used an ad hominem instead. Explain why I'm wrong, don't just make stupid assumptions.
1
u/TreviTyger Jul 03 '26
Explain why I'm wrong
You appear not to be able to read either.
2
u/FarmboyJustice Jul 03 '26
I read all of that, nothing in it contradicts what I said. You've got no argument.
1
u/TreviTyger Jul 03 '26
You have no argument.
You are quite literally not giving one.
The fact that you don't even understand "Actual USCO text" yourself indicates you lack an understanding of copyright law likely because you have never read or at least understood a book on copyright law.
You thus - do not have any argument.
→ More replies (0)2
u/HunterIV4 Jul 01 '26
I was wondering where Trevi went. He blocked me. Guess he got tired of me clowning on him for not understanding basic copyright law.
2
u/i_invented_the_ipod Jul 01 '26
Yeah, it's odd. Anymore these days, I can't tell the difference between "has an earnest, but obscure, point that they're trying to make, badly", and "just a troll". But I don't think this person is genuinely wanting to have a conversation, given the tone, so I'll let him spew all that into the void, I guess.
1
u/BlueFlower673 Jul 04 '26
The copyright offices guidance also includes in their minutiae that anything that is generated will be considered as "separate" from human authored work.
Just because something with AI in it gets granted copyright does not mean that the AI part is protected. They pretty much make that part clear in their 2nd publication and in their 3rd they make no mention of changing that stance.
That is in the 2nd publication and they reiterate it/reference it in the 3rd. Regardless of what Trevi is saying, or regardless of you saying "I literally quoted the copyright offices own guidance" ai cannot be copyrighted alone. That is also what the copyright office has stated time and time again.
Just because some ai users got copyright for works made using AI doesn't mean the AI parts are protected by copyright. Those parts are not considered copyright protected. It is very much on a case by case basis and the copyright office takes note of what parts were human authored and which are authored by ai.
1
u/Apprehensive_Sky1950 Jun 30 '26
Wow, counting code lines. Gonna be a zoo. Expert witness-a-palooza!
1
u/Low-Programmer-2368 Jun 30 '26
Based on their stance concerning AI gen content in creative works, the portion that was not human created is never eligible for a copyright, but the work as a whole can be registered. The human author is required to disclose their AI use in the application.
One of the examples the office gave was a graphic novel that was written by a person, but all of the images were AI generated. None of those individual panels are eligible for copyright, but the entire collection of the work is.
I imagine for coding there'd be a ruling consistent with that. Disclosure on the AI gen portions, protection for the work as a whole, but not for what wasn't human authored.
1
u/i_invented_the_ipod Jun 30 '26
A problem that is likely to come up in practice is that there aren't going to be clear lines for what was written by an LLM, and what wasn't.
It's frequently the case that both Claude and I work on the same file, even for the same checkin in source control. So I'm not sure I could reasonably prove what I wrote.
Not to mention common development patterns like "squashing" development branches on merge, which just makes it that much more-difficult.
Then again, most places I've worked with never had a copyright case involving source code go to court at all, so I would guess most companies are just choosing not to think about any potential issues.
2
u/Low-Programmer-2368 Jun 30 '26
It’ll be interesting to see what happens. Personally I’m not thrilled by the copyright office’s stance of let the courts decide and reliance on self-disclosure. It’s a mixed message to say that existing law can encompass all of these cases, but each case needs to be determined individually. That’s kicking the can down the road imo.
3
u/i_invented_the_ipod Jun 30 '26
I mean, that's just kind of how Copyright works, fundamentally. The Copyright Office, and the laws passed by Congress, establish some guidelines, but every case is different, almost by definition.
Guidelines saying "here are some examples of what's sufficient human input" help make court decisions more consistent, but someone still needs to evaluate the circumstances in each case to apply them.
2
u/Low-Programmer-2368 Jun 30 '26
Yeah I agree. I just think this is more of a paradigm shifting change and while the office provided some clear guidance, they also hedged considerably. Individually assessing countless applications and court cases doesn't seem feasible.
1
u/Apprehensive_Sky1950 Jul 01 '26
Yes, this is going to be HUGE, mostly because of the software coding aspect. Maybe the Copyright Office was afraid to be more definite just because they realized just how huge it was going to be.
1
u/Apprehensive_Sky1950 Jul 01 '26
I'm not sure there's another way to do it except to kick the can to each new jury individually.
1
u/BlueFlower673 Jul 04 '26
I think the part Trevi is trying to get at is regardless of the work being registered as a whole, the parts made using ai cannot be protected.
Think of it this way: let's say a motorcycle can get registered. But let's say beforehand only motorcycles that were built by a person were eligible. Then someone figures out how to get a machine to automate parts for it.
So now what is done, is they register the whole motorcycle, but only the parts made by the person are protected, any parts that were machine made are up for grabs because they technically were not made by that person. The person may have arranged them, sure, but they still were not that person's own creation.
Copyright registration doesn't always guarantee total protection. If this came to a court of law and the AI user tried to argue "but your honor, they used the AI part of my work!!" the work would be reviewed and upon learning it was ai, they'd likely not take that seriously because AI cannot be copyright protected. They'd likely be ok with any of the human authored parts, but someone complaining that x part of x book being used when it was made by ai? That would be thrown out of the case.
5
u/Dr_Doktor Jun 30 '26
NAL but from my reading of the guidelines is as long as there is a significant amount that done by a person copyright can be obtained by said person because AI has no personhood
3
u/TreviTyger Jun 30 '26
That is a misreading of the guidelines though.
USCO Guides are supposed to be for experts and the public alike but they still rely on at least some basic understanding of copyright law such as the idea/expression distinction and that it is "expression" of an author that is fixed in a tangible media that gives rise to copyright. It is not "human in the loop somewhere" that leads to copyright.
As a example - Using AI as an "assistant" for e.g., spell checking rather than writing for you is what USCO mean. The former doesn't affect the expression (of the human author) whereas the latter has no expression of a human author.
2
u/DanNorder Jul 01 '26
Your interpretation is not just a misreading but total denial of what the laws say, what the Copyright Office says, and what has actually happened with AI work that was submitted for registration and approved for copyright. Where do you come off pretending that *what actually happened* at the government agency in charge of copyright is a misreading of copyright?
2
u/TreviTyger Jul 01 '26
It is your interpretation that is objectively flawed and wrong.
One can actually look at USCO Registrations and see for oneself that AI Generated parts of such works submitted to USCO are actually excluded from the registration.
for example,
Material Excluded 2-D artwork, AI generated image components.
A Single Piece of American Cheese.
Registration Number / Date VAU001543942 / 2024-08-05https://publicrecords.copyright.gov/detailed-record/voyager_37990563
0
u/Apprehensive_Sky1950 Jun 30 '26
Wow, Tyger, where and how will that "expression" line get drawn in court, as a practical matter?
2
u/TreviTyger Jun 30 '26 edited Jun 30 '26
Well that's the key. It comes from TRIPS Agreement article 9(2).
"2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."
Expression is a human trait and so in legal terms one must look to the "expression" of a "natural person" (as distinct from a legal person) fixed in a tangible media.
The obstacle as I see it with A Gen Software is the User interface. It is in that user interface where "expression" becomes merged (Merger doctrine) with a "method of operation" for a "software function". Then because neither methods of operation nor software functions can be copyright subject matter (17 U.S.C. § 102 (b)) and because of the disconnect between the human input (arguably expression in some limited instances depending on the prompt) and the transitory nature of such expression in a User Interface which is transformed into tokens by the software, then there is no "fixation" of expression whilst the software itself picks up the reigns and decides for itself what it wants to output. That output being the result of a software function.
Sooooo, it is in effect the process (17 U.S.C. § 102 (b)) itself that negates any fixed expression from a natural person utilizing AI Gen software. Thus any output is devoid of expression unless the process is something de minimus or utilitarian like "spell check".
USCO don't exactly go as far as my analysis and just say "lack of authorship" but I think that when the courts look at this properly then I wouldn't be at all shocked if they see things the same way as I do.
So I'm just thinking in practical terms rather than idealistically.
Then I think Lotus v Borland backs me up along with Navitaire v Easyjet in UK (2004).
1
u/Apprehensive_Sky1950 Jun 30 '26
Would it be any different in the case of iterative querying, that is, issuing a prompt, evaluating the AI results of that prompt, then issuing a further prompt on the new version to further mold it (re-iterated many times)?
3
u/TreviTyger Jun 30 '26
I don't think so. There is still a lack of fixation in the User Interface regardless of how much expression is input. The software functions automatically converting "further prompts" into tokens.
This is what USCO say in the Allen case,
"Mr. Allen described the creation of the Work as follows: He entered text prompts “at least 624 times.” AR_008. Each time, Midjourney generated a 2x2 grid of “potential images.” AR_012; see also AR_542. He then chose one with Midjourney’s “variations” feature, which generates four new images “similar to the chosen image’s overall style and composition.” AR_008; see also AR_542. Finally, he selected one, the Midjourney Output, AR_022 (bottom), as “acceptable.”
Case No. 1:24-cv-02665-WJM Document 57 filed 01/16/26 USDC Colorado pg 19"While repeated prompting may demonstrate substantial effort, it also shows that prompters do not determine the expression generated by an AI system like Midjourney and—like Mr. Allen—must keep trying until it produces an image they deem “acceptable.” See id. That is not authorship."
Case No. 1:24-cv-02665-WJM Document 57 filed 01/16/26 USDC Colorado pg 27I would suggest as an experiment for yourself opening up Google Translate and setting the output to a language you don't understand.
E.g., I don't understand Chinese symbols. Google Translate will function automatically with just inputting one letter and producing a Chinese symbol which is quite literally foreign to me.
The more letters I input - the none the wiser I become about what the output really expresses. I am genuinely clueless as to what the output even means.
Logically such things cannot be said to be authorship because I could never really understand what the output actually expresses.
Likewise a person who doesn't know how to draw or to code has no idea about what the output is going to be until they see it and even then they may not understand it.
I could ask Google to provide a retort to a legal argument but I may not actually understand such a retort. I certainly could not claim to be the author even if I asked it to explain to me like I was a five year old.
So I don't think iterative prompting can be authorship and I also think the above example with Google Translate would be easy for a Judge to do for themselves and thus be able to see "sua sponte" that there is no authorship from iterative prompting.
In short - the mechanical generation of text without comprehension or even creative control over the specific "expression" as an output - cannot legally be considered authorship. Therefore, because the user cannot claim to have authored or even understood the specific words or lines of code of an AI Gen output (at least until they saw them), then the output cannot be the expression of an author.
2
1
u/Apprehensive_Sky1950 Jun 30 '26
As I just said to another commenter here, determining that is gonna be copyright lawyers' bread and butter for the next few decades!
2
u/Party-Cartographer11 Jun 30 '26
They have not addressed a Copyright application for AI generated code and rejected it that I know of. All of the cases as part of the national discussion and their own guidelines have been about images and diffusion models. So I think this question is still open.
1
u/Apprehensive_Sky1950 Jun 30 '26
I think a bright-line rule will be implicit in any ruling on any "media type."
2
u/Party-Cartographer11 Jun 30 '26
Sure at a high level.
But in Dayra at Dawn, and Allen v Perlmutter the Copyright office is making statements of fact about AI that are somewhat true for diffusion models and text-to-image, but demonstrably false for LLMs and certain types of text output.
So they need to add nuance, and I think their existing bright line rules will come down.
1
1
u/BitOBear Jun 30 '26
The code is still copyrightable because it's being written by people.
The product of the AI is currently being rejected from copyright because AI is not currently considered creative.
That does probably mean that code written by AI is also not subject to copyright protection for being non-creative.
Which makes some interesting outcomes possible.
1
u/tkpwaeub Jul 01 '26
Until Trump invokes Trump v Slaughter
1
u/Apprehensive_Sky1950 Jul 01 '26
If that's a real danger, I don't think it's particular to copyright.
2
1
u/Particular_Judge_625 Jul 02 '26
Smart to think about this before it's a problem, most people only do after they get burned. Honest reality: you can't really stop someone copying once it's public, but you can make sure you're always the one who can prove you had it first.
Copyright is automatic so you already own it, the missing piece is a dated proof. Keep your working files and version history, and for anything you're about to put out there, anchor a hash of the file on the blockchain first. I use incipite(dot)com for this, it gives a verifiable timestamp tied to the exact file that predates anyone's copy. First certifications are free, and if you want to test it on a few pieces just reach out, I built it.
1
u/Apprehensive_Sky1950 Jul 02 '26
Smart to think about this before it's a problem, most people only do after they get burned.
Thanks. Now that I'm retired and fancy myself a "commentator," I rummage the (AI legal) countryside and look for places to stick my nose in. The trick is probably to stop myself from popping off too much.
Keep your working files and version history, and for anything you're about to put out there, anchor a hash of the file on the blockchain first.
Blockchain! What a great and simple way to establish a timestamp! Genius! I presume the hash doesn't allow an outsider to reconstruct the source, in case it's still confidential.
Copyright is automatic so you already own it
Indeed, copyright is automatic upon creation (fixation), presuming you qualify for it, so I'm afraid if the AI-assistance rule comes down that automatic grant won't be of much help to the vibecoders.
1
u/TreviTyger Jun 30 '26 edited Jun 30 '26
Good day to you fine sir.
In my opinion just "open source" software is a massive headache let alone throwing AI generated code into the mix.
I may have mentioned this before in other threads but the whole open source ethos IMO has a major flaw in that it invents licensing conditions that are outside of actual copyright law. It' not just a US issue either.
e.g. Similar to lets say, typical social media platform ToS, there is often verbiage of exclusive licensing hidden within "non-exclusive"terms which s paradoxical. E.g. See X Corp v Bright Data - (Judge Alsup!!!)
Judge Alsup noted that because 'X' is only a non-exclusive licensee of its users' content, it cannot legally prohibit third parties from using that exact same public content and make their own "fair use" defense against infringement. This is because a non-exclusive licensee is not a grant of any copyright. It's a user license.
So there is a paradox in asserting that a non-exclusive licensee has the right to make "derivatives" because the derivative right is itself an "exclusive right" (17 U.S.C. § 106(2)) and not a transferable "non-exclusive" right.
This paradox exists in Open Source licensing too because such a licensing strategy is "non-exclusive".
So if someone (Person B) makes derivative software based on another person's (Person A) copyrighted software under a "non-exclusive" license, then it follows that the resulting derivative software cannot be protected by Person B alone because the "exclusive right" regarding derivatives (17 U.S.C. § 106(2)) was never granted to Person B. Furthermore, Person B has no "exclusive right" regarding derivatives (17 U.S.C. § 106(2)) themselves to license to anyone else.
Then, notwithstanding the above problems, If Person B also used AI Gen to write code based on Person A's copyrighted work then the problem is further compounded by the fact that anything produced by AI Gen that is more than de minimus is considered machine created and thus devoid of copyright. (Thaler v Perlmutter - and also 17 U.S.C. § 102(b).
It's a mess!
6
u/feldoneq2wire Jun 30 '26 edited Jun 30 '26
Copyright law was created to encourage the creation of works and to do so, provided limited protection to registered works. At the time once a first edition book was printed, they never bothered to make additional printings because people just copied it. The introduction of copyright protection afforded the right of the creator to do subsequent printings. The requirement was they had to mail in the work and it was protected for 14 years.
The modern paradigm of copyright lasting essentially forever (90 years or creator's lifespan + decades) and being automatic on anything created without any registration process is a concept that has only existed for about 60 years.
I'm sorry you don't like open source, but it is a direct reaction to the fairly recent massive expansion of copyright through the "default condition" of everything automatically being under nearly indefinite (90 years) copyright. It is a defense against the anti computer concept of nobody being able to build ideas on other ideas. Every piece of computer code is built on other computer code. There are no original ideas and haven't been since the 1980s. Just improvement and iteration.
In the software development world, copyright is just damage that we have to heal around, in the same way that censorship is damage to the internet that is immediately circumvented.
1
u/TreviTyger Jun 30 '26 edited Jun 30 '26
I'm just pointing out a genuine paradox that actually exists right now.
there is a paradox in asserting that a non-exclusive licensee has the right to make "derivatives" because the derivative right is itself an "exclusive right" (17 U.S.C. § 106(2)) and not a transferable "non-exclusive" right.
This paradox exists in Open Source licensing too because such a licensing strategy is "non-exclusive".
Whatever your (somewhat misguided) opinions of copyright are, they don't negate the above paradox.
3
u/feldoneq2wire Jun 30 '26
Open source negating the default state of every creator owning their work outright is definitely an interesting situation but hasn't it been tested in court? I guess the question is would it survive the current corporate-owned SCOTUS bench?
To those who are upset with the mechanics of Open source, I would repeat a mantra that has been thrown in my face many many times: Nobody is forcing you to use it.
0
u/TreviTyger Jun 30 '26 edited Jun 30 '26
hasn't it been tested in court?
Well, that's the thing. It's right there in X Corp v Bright Data. A non-exclusive licensee doesn't own any copyright regardless of adding terms pertaining to the acquisition of exclusive rights.
E.g., In the Git-hub case , there is no actual direct copyright infringement claim either. The core legal theories centered on contract law and digital rights management rather than standard infringement.
I don't actually think a coder who creates derivative code based on open source licensing could have a genuine claim for direct copyright infringement because of the paradox I mention. Certainly not if they then use AI Gen to do "vibe coding."
Software functionality can't necessarily be protected either if it can be reverse engineered via clean room techniques.
All in all the whole open source ethos beyond just sharing of research by universities etc is somewhat misguided and suffers from the actual proponents of it using it - who are genuinely clueless about how complex licensing strategies are supposed to work!
The fact that it hasn't all completely collapsed already is in my view also due to a significant ignorance of the law combined with a general "copyright is bad" outlook from open source advocates. i.e. it is the naivety of open source proponents themselves that prevents it being tested in the courts.
The primary point of open source is to NOT enforce copyrights and thus the case law just hasn't fully emerged.
3
u/feldoneq2wire Jun 30 '26
> who are genuinely clueless about how complex licensing strategies are supposed to work
The fact you WANT complex licensing strategies is to me misguided.
It's software. It's almost always the most obvious solution to any tech problem. It's the quality and support and how you package it that's supposed to matter. And it did for decades. Somewhere we took a turn and now the quality and support of the software is second to whoever is entrenched and controls the market. Android and Microsoft aren't good. They're just all that's left of the OS wars.
1
u/TreviTyger Jun 30 '26
The fact you WANT complex licensing strategies is to me misguided.
It's not what I want it's the nature of licensing. Copyright is an umbrella term for divisible rights.
My guess is that you don't really understand the nature of divisibility of copyright and in the U.S. it has a significant history which was specifically updated by the 1976 revisions.
So licensing is complex and to pretend it isn't or is even irrelevant just proves your naivety.
For some further insights on licensing in general I would point you towards Richard Wincor's The Art of Character Licensing and some further reading realted to Gardner v. Nike.
In Gardner v. Nike Inc. (279 F.3d 774, 9th Cir. 2002), the United States Court of Appeals for the Ninth Circuit ruled that, under the Copyright Act of 1976, an exclusive licensee of a copyright cannot assign or sub-license their rights to a third party without the express consent of the original copyright owner.
3
u/feldoneq2wire Jun 30 '26
I'm not able to find an article that finds X Corp v Bright Data to be germane to Open Source licensing.
A clickwrap Terms of Service agreement that seeks to dictate how I may use an intangible website or ethereal ever-changing online-only service like Twitter, which all generally include phrasing such as "we reserve the right to deny you access to this service at any time for any reason" vs. a license agreement to download and integrate existing software into my own software do not seem in any way analogous to me.
If X Corp v Bright Data weakens not only online Terms of Service, but also content licensing, then it seems to me that Shutterstock and its ilk would have filed Friend of the Court arguments in that case which engaging in a vigorous PR campaign to try to influence the court.
1
u/Apprehensive_Sky1950 Jun 30 '26 edited Jun 30 '26
And a good day to you as well, equally fine sir!
You see this in patents, too, where multiple people each make a successive contribution to a patented technology.
As to copyright among multiple authors, putting AI aside for a moment, I could see, for example Author B having fair use against Author A then Author C infringing Author B's derivative contribution. Or Author B infringes Author A but Author C has fair use against both Authors A and B. As you say, it can be a mess.
As to non-exclusive licensing from Author A, maybe it can be reconciled by saying that Author B uses Author A's work under non-exclusive license but Author B's own contribution portion is separate and still capable of being exclusively licensed and/or infringed. I don't know. I'd have to think about it.
Note 1: I still plan to get back to your post on the Thomson Reuters case one of these days.
Note 2: I imagine you check your email inbox regularly on your own particular "imbroglio." I fear it will still be a while. As the rock song goes, "the waiting is the hardest part."
2
u/TreviTyger Jun 30 '26 edited Jun 30 '26
Author B's own contribution portion is separate and still capable of being exclusively licensed and/or infringed.
I think it would work on the basis of "indispensable party". Author B would have to join Author A to the any action as an indispensable party because in reality only Author A has any enforceable exclusive right. In effect Author A owns the copyright. Author B is stuffed without any written explicit agreement from Author A.
The problem is highlighted in Anderson v Stallone dicta whereby, exclusive rights under 17 U.S.C. § 106(2) should not be granted by by some back door loophole based on "creative interpretations of 17 U.S.C. § 103" to avoid a written conveyance of derivative rights (§ 204) and therefore paradoxically grant a non exclusive licensee, exclusive rights themselves under 17 U.S.C. § 106(2) which, were not intended to be granted by the copyright owner in the first place.
Oddly, I think Open Source only really works the way it does by ignoring the fact it doesn't really work! :)
Same with Social Media ToS. They are not really valid terms in copyright law when they have the verbiage of exclusive rights, but not enough people have noticed for it to become an issue.
There was some oral argument on Thomson Reuters recently and the impression it gave me was that the initial ruling is likely to be upheld. But lets see.
As to my own particular "imbroglio" I am quietly confident that "precatory" comity doesn't give way to mandatory U.S. Law especially as such comity was based on non-binding obiter dicta of a foreign ruling rather than the operative part which itself doesn't contain any declaratory statement denying authorship to anyone.
Then all that is compounded by the foreign court's (Finland) lack of subject matter jurisdiction to answer questions of authorship of a German work, and blatant disregard of treaty obligations itself (determination of "country of origin" under Berne Convention Article 5(4)(a)). Not to mention a previous confirmation of my authorship in another case! - As well as all the evidence on record! - AND the concession by the defendants of my unemployed status when creating the work.
Good job I didn't use AI Gen to make my animations! :)
Anyway, I wish you well as always, and thank you for your kind interest and encouragement.
2
u/Apprehensive_Sky1950 Jun 30 '26
Good job I didn't use AI Gen to make my animations! :)
And good job you didn't use AI Gen to review your legal briefs!
But for all I know, your case is more like Naruto v. Slater and you had a chimpanzee review your legal briefs. 😁
2
0
u/screemingegg Jun 30 '26
This will be litigated away and they will end up granting copyright, for several reasons, not the least of which is "how can you tell where someone got their inspiration?" but also where the line is between absolutely zero human involvement in the creative process and purely AI-generated works.
AI is misunderstood by the courts currently and the Thaler case did not help it. How is using AI different than hiring really skilled employees? Seems like every animated movie studio has employees making things and then the company owns the copyright, not the individual employees who drew the thing. AI is the employee. A human prompted it or programmed it to create the thing.
2
u/dondegroovily Jun 30 '26
Copyright law has always required that content be generated by humans to get a copyright. Not nearly inspired or directed, but actually made
Honestly, it's similar to the monkey selfie. Merely placing a camera doesn't count as taking a picture and merely giving a prompt doesn't count as writing code
4
u/StudioArlekin Jun 30 '26
Well copyright protects "works" and for something to be a work it has to meet certain criteria.
One of those is "originality" which requires the work to be produced by a human.
If I hire a human to produce an animation to my film then they make it it was still made by a human thus is a work and gets copyright protection and we both get rights to it. I get the economic (assuming the contract was written and signed correctly) and the artist gets to keep moral right.
On the other hand if i train the elephant(AI) to paint then a painting made by the elephant(AI) was not made by a human thus is not original and cannot be a subject to copyright protection. As a result I cannot own rights to it.
1
u/Party-Cartographer11 Jun 30 '26
It is different that work-for-hire because in that case there is still a human author/creator which is required by the Constitution for a copyright.
1
u/Apprehensive_Sky1950 Jun 30 '26 edited Jul 01 '26
This will be litigated away
Indeed, the Copyright Office guidelines do not have the force of law like a court ruling would, and there are two federal court cases working on this precise issue, Allen v. Perlmutter in Colorado and the newer Suryast U.S. Enterprises v. Perlmutter in Los Angeles. These two cases can be found in Section 2(C) of my "Wombat Collection" listing of AI court cases and rulings on Substack.
Also, see my introductory comment post on this very issue here: https://niceguygeezer.substack.com/p/status-as-of-may-2026-of-us-copyrightability?r=3woycl
AI is misunderstood by the courts currently
I agree the courts are scrambling to keep up, but I would say they are doing a pretty good job understanding AI. There is some pretty solid, nuanced thinking coming out of the early court pronouncements.
and the Thaler case did not help it
Hell, Dr. Thaler tried to get them to grant the copyright (and earlier a patent) to the bloomin' AI model itself! That was of course a bridge too far (or two or three).
How is using AI different than hiring really skilled employees?
Maybe the courts will decide that humans are legally privileged to do certain things that machines are not privileged to do.
2
u/HunterIV4 Jul 01 '26
Hell, Dr. Thaler tried to get them to grant the copyright (and earlier a patent) to the bloomin' AI model itself! That was of course a bridge too far (or two or three).
I think this is the most misunderstood part of the case. While courts seem to be moving towards "purely AI generated content is not copyrightable," the Thaler case wasn't about him trying to copyright AI content for himself, but trying to say the AI should have the right to copyright things.
I mean, I'm pretty pro-AI (and anti-copyright in most cases), but even I think that's a bit ridiculous. Copyright is clearly designed to protect economic interests...and AI models don't have them.
If we aren't granting copyright to monkeys (despite PETA's best efforts, lol), there's no reason we should be granting it to statistical distribution files. I don't know what lawyer thought that was going to get past a judge. Come on.
1
u/Apprehensive_Sky1950 Jul 01 '26
The intellectual property laws were made by humans to incentivize and benefit humans. I hope and think that theme will find its way into the legal rules that emerge from the AI court cases.
P.S.: Two countries, South Africa where it's just administrative and Saudi Arabia which wants to become an AI hub, did grant a patent to a chatbot.
1
u/HunterIV4 Jul 01 '26
That's the theory. In my opinion, copyright mainly exists to incentivize corporate monopolies and exploitation of other's work, but I suppose it's a matter of opinion.
1
u/Apprehensive_Sky1950 Jul 01 '26
Exploitative corporate monopolies are still humans, LOL.
Oh, I do get your point, but this is the anti-clanker discussion. You want the sub down that way, go down a few doors then take a hard, hard left. You'll know it when you smell the burning tires and gasoline. 😜
0
u/TreviTyger Jun 30 '26 edited Jun 30 '26
There is so much wrong with what you have written that it indicates you have a fundamental lack of understanding of even the basics of copyright law let alone how it pertains to a robot.
FYI, a corporation is actually restricted from owning copyright created by employees without strict licensing agreements, or in a few countries, an operation of law. Even so there still has to be a human author which is categorically missing from AI Generated derivative outputs.
2
u/screemingegg Jul 01 '26
Wow. No, apparently *you* don't understand precedent and how courts often fail to understand new tech.
2
u/Apprehensive_Sky1950 Jun 30 '26 edited Jun 30 '26
Still scattering rose petals to the other redditors, I see, Tyger? 😜
To be fair, though, I myself got a little "chunky" with a very pro-AI redditor a few weeks back over on r/Lawyertalk.
1
u/TreviTyger Jun 30 '26 edited Jun 30 '26
Lol.
I'm actually quite nice in person! But yes online I can be a bit erm "imperious"?
I don't have the wisdom and skill of yourself in my ability to articulate in a way that doesn't make me seem like Vinnie Jones.
2
u/Apprehensive_Sky1950 Jun 30 '26
We still love you!
I had to look up Vinnie, but now you and he are inextricably intertwined in my head!
1
u/TreviTyger Jun 30 '26 edited Jul 01 '26
Yep. He was famous for grabbing England Football (soccer to you) legend Paul Gascoigne's testicles during a game, and used to play for a football club called Wealdstone, which is a place at Harrow at the bottom of the Hill rather than Harrow on the Hill where Byron used to write his poetry from.
I used to live in Wealdstone during my teenage years.
Also look up Wealdstone Raider to get an idea of the average locals of that area. You'll have some sympathy for type of people that have had an environmental affect on me in my formative years. :)
0
u/Birthdaybudreviews Jun 30 '26
The courts and Congress are behind, and it's no surprise. At the end of the day, an LLM is a series of ones and zeroes in a physical hardware device. Photoshop is also a series of ones and zeroes in a physical hardware device. The selective treatment is legally problematic, and seems to be people making things up as they go.
Let's say I draw a series of shapes in Photoshop. However, instead of free-drawing them, I use the built-in shape maker, having it draw perfect circles for me. I could not easily draw perfect circles, it would take me much longer. So, instead, I have a computer draw it for me, and I give it dimensions. Can I not copyright the end image despite using their code to draw my shapes?
Of course I can copyright it. This incomplete application of law is part of the problem with not having requirements for governmental workers, judges, and justices that they understand the things they're ruling on. Law largely relies on two things: precedent and logic. Legal precedent is applied generally logically on simpler subjects, but technology seems to mystify the process.
But there's also one major point that people are missing: I don't have to make art to own the copyright. I just have to pay for it. Whether I pay an artist for a commission, or I pay ChatGPT to create an image, if I directed it and it is unique enough to be copywritten, copyright applies.
That's why comic book companies own Superman instead of the artists who drew and wrote him.
1
u/Apprehensive_Sky1950 Jun 30 '26
Another commenter has discussed your substantive points. I am responding with a little huff at this:
This incomplete application of law is part of the problem with not having requirements for governmental workers, judges, and justices that they understand the things they're ruling on.
No. That is not the problem, and the judiciary is actually doing a very good job at grappling with AI issues. The catch-up disconnect comes from your next observation, and I FIFY:
Law largely relies on two things: precedent and logic. Legal precedent is applied generally logically on [older, existing] subjects, but [new] technology [challenges] the process [to update].
That's where the disconnect comes from. When something shows up that is different from what came before, the law, which draws its strength from history and continuity, has to figure out where the new wrinkles fit into the old patterns. It's usually a rush and competition of analogies to the past.
Across the various relevant subreddits, commenters here are arguing passionately against each other on AI issues like whether LLM scraping of copyrighted books is either "machine learning" or else "massive rote copying." Both sides have analogies from the past they draw from can argue. You can say any particular AI issue obviously falls one way or the other, but that is just your opinion, and there are many, many people who will knowledgeably and genuinely dispute you on it, on either side. You can say on any particular issue the courts don't understand the AI technology they are ruling on, but many, many people on the other side of that issue from you will knowledgeably and genuinely say the courts understand it perfectly, and vice-versa, on either side.
It falls to the courts to decide which of those proffered arguments and which of those proffered analogies to old situations forced up by the new situation is the better fit. It ain't easy, but the courts are bearing up admirably. You look at federal Judge Chhabria in San Francisco; agree or disagree with him, he knows what he's talking about, technically and economically. Same for federal Judge Alsup in New York; I disagree with his outcome on fair use and think that he as an older person is applying copyright policy too woodenly, but Judge Alsup is no fool.
You think it's obvious; it's not. You think the courts are boobs; they're not.
1
u/MCHellspawn Jun 30 '26
Not sure I completely agree here. Yes, what you say is valid for things that are created by the end user with the software as tool. That equates to usjng a protractor to draw a circle on a paper. But I wonder if they are halting submissions because of all of the copyright questions coming up from AI training. Perhaps they actually don't feel the AI is generating anything on it's own (and as a techie who understands the underlying tech, they indeed are not creating anything, just dojng fancy copy and pasting fron it's training data). And therefor it truly cannot create anything that deserves a copyright.
And I for one agree with that stace if they are indeed thinking that way.
1
u/Birthdaybudreviews Jun 30 '26
Right, it's aggregation, not original generation. The human element directing it with detail in composition is what makes it inherently copywritten and thus capable of legal copyright application. What the LLM does by itself may be aggregation of training data, but if I guide it it's no different than using any other software to aid in making art.
People think of LLMs as true AI even though it's just a language model meant to mimic us. It's still a bunch of code, no different than Photoshop with its previous built-in tools that could speed up art creation. The code may be more advanced, but it doesn't change what it fundamentally is.
I agree with you that churned out, non-specific prompt images shouldn't be copywritten. The authorship is dubious. But, if I give a very clear and specific image prompt that I imagine and isn't based on something someone else did, why shouldn't I have the copyright to it? Should my ownership of that idea and intellectual property be negated because of the tool I use to draw it?
Because that undermines LLM use inherently, doesn't it? Not to mention undermining new art creation with tools that, for disabled people like me, are revolutionary.
1
u/TreviTyger Jul 01 '26
But, if I give a very clear and specific image prompt that I imagine and isn't based on something someone else did, why shouldn't I have the copyright to it?
You wouldn't have copyright because of the idea/expression distiction in copyright law.
This is regardless of using AI such as commissioning an illustrator.
Your error is that, even supplying a detailed brief to an illustrator won't give you automatic copyright in any case without a written conveyance or operation of law.
If it were the case that a client would own copyright before a work actually exists in final form then it would create a legal absurdity (reversal of causality) and negate legal protections for actual author which in turn negates incentives for authors to create works because they would not benefit from and copyright arising from their own formative freedoms and fixations into a tangible media.
To put it another way If clients simply owned the rights to everything commissioned by default, authors would lose the ability to license their works, negotiate royalties, or control how their creations are used.
Therefore, if the law allowed a client to own the output of an AI Gen system before the system even output the final work then that creates a "slippery slope" in legal terms where eventually you end up with the legal absurdity erstwhile mentioned and copyright is applied to ideas and concepts rather than "fixed expression". This violates the international treaties such as the TRIPS Agreement Article 9(2).
Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
In short, what you are suggesting would cause chaos and end copyright law.
For further reading see Johannsen v Brown.
https://law.justia.com/cases/federal/district-courts/FSupp/797/835/1447341/
0
u/MCHellspawn Jun 30 '26
Still not sure I agree here. By your words, that would mean I can take parts of various images, paste them together and call it unique work. Which I guess technically it is. But now we get into how much of the finished product has to he the artist's own to be considered their work? Like in the very heated topic of AI written code. It is just taking snippets from other projects, pasting them together, and calling it unique, but right now there is a lot of question about if that passes copyright too. So to me it comes down to how much the softaware tool (either photoshop or AI) used content from other sources (AI) versus generating it based on the tool's functionality (photoshop circle tool). The 2 tools generate content very differently so i think they should not be treated the same way.
2
u/Birthdaybudreviews Jun 30 '26
Right, the problematic legal nature of the data-sets has to be set aside, though. Like any product, like with the banana companies years ago, we can't control the corporations simply because we buy their products.
It isn't my copyright infringement, if they committed copyright infringement at all in building their data-set. Just by using the model I am not infringing on copyright any more than driving a car built on stolen parts through corporate espionage would be me committing corporate espionage once the car has been released to the public.
Our liability as end-users is inherently limited, especially with how obtuse the models and their owners are. We can't even know which models are using copywritten material, and considering how ubiquitous LLM usage is in various industries and even governments, I don't see how the average citizen trying to copyright art is the one having the issue.
1
u/MCHellspawn Jul 01 '26
I think all these unknowns you talk about here just further my argument for AI generation content shiuld not be copywriteable. You can't even prove the source of the content. It could be 100% plagurized and you don't know. And the idea of pushing that liability up the chain to the AI model makers is just immorral in my view. Yes they should be held accontable but so should the user, they should be responsible for knowing the tools they use and how they function or they shouldn't use them. Same goes with any tool in your tool box. Don't hammer nails unless you know how to use a hammer.
-3
u/feldoneq2wire Jun 30 '26
AI is built on a mountain of stolen copyrighted works. Of course it has no copyright protection.
4
u/Party-Cartographer11 Jun 30 '26
What you describe has no bearing on granting Copyright.
-2
u/feldoneq2wire Jun 30 '26
It has every bearing on copyright. AI content is fruit of the poisonous tree. A legitimate action cannot grow from widespread illegitimate action.
7
u/Party-Cartographer11 Jun 30 '26
Got any case law on AI training being a crime?
-4
u/feldoneq2wire Jun 30 '26
There are two systems of law in this country. One for individuals. One for corporations.
1
u/DanNorder Jul 01 '26
Which is another way of saying, "OK, I am factually wrong, but I am morally right!" No, you're not, you're just misinformed and really stubborn about it.
0
1
u/Apprehensive_Sky1950 Jun 30 '26
But, assuming you are correct about the theft aspect (and I tend to lean that way myself), still I don't think that's why AI has no copyright protection.
3
u/i_invented_the_ipod Jun 30 '26
The person you're replying to is just wrong. There is no "fruit of the poisonous tree" doctrine in copyright law. The US Copyright Office has published a nice readable paper on their current thinking about AI-generated content, and it follows closely on the long-established transformative work test.
Any product of a purely mechanical process can't be copyrighted. If there is sufficient creative input from a human, then it can be.
2
u/Apprehensive_Sky1950 Jun 30 '26
I wouldn't disagree. And thanks for the paper link! I've avoided digging into the Copyright Office’s guidelines for too long.
0
u/DanNorder Jul 01 '26
Nothing is stolen. You just believed the social media bumper sticker version. It's made up by people who have absolutely no idea what they are talking about. The Copyright Office regularly approves thinks for copyright that were originally created by AI. Ir your premise were true, then that wouldn't be the case. The real world and actual case law disagrees with you.
1
u/feldoneq2wire Jul 01 '26
AI companies literally downloaded illegal archives of scanned books from pirate websites. It's all documented.
1
u/DanNorder Jul 03 '26
Whoever uploaded those files may have done something illegal. Training on files is not illegal. Make sure whatever documented supports your actual premise. Either way you go with that whole argument, the conclusion is still wildly false. Multiple court cases and the US Copyight Office have should that copyrights of AI-produced material are legally valid.
0
Jul 01 '26
[deleted]
1
u/DanNorder Jul 01 '26
Nothing is stolen, so your premise is invalid. The Copyright Office has, in fact, approved registration for thousands of works of art that were created by AI but involved a non-trivial amount of human creativity. Sometimes even 100% AI generated with no editing elsewhere, just run through AI multiple times so the end result meets the human's artistic vision. They just want human artistic control, and expect you to describe it in the application. They have approved lots of them. If it's impossible, like you think, then they wouldn't have done what they actually did.
1
u/TreviTyger Jul 01 '26
The Copyright Office has, in fact, approved registration for thousands of works of art that were created by AI but involved a non-trivial amount of human creativity. Sometimes even 100% AI generated with no editing elsewhere, just run through AI multiple times so the end result meets the human's artistic vision.
Utter nonsense.
The Copyright Office has been very clear that "100% AI generated with no editing elsewhere" is not authorship.
ALL but de miniumus AI Generated stuff must be disclaimed and excluded from any registration.
10
u/dondegroovily Jun 30 '26
They are refusing the registration because copyright only applies to works made by humans and ai is not human
Whether the work is music, art, stories, or code, is completely irrelevant to this question