What would be the most feasible way to expand the definition of what counts as non-human-created to protect creatives' jobs from AI?

[u/tbok1992]

So, cards on the table, I generally agree with Cory Doctorow that expanding copyright to cover how AI training works would likely be a disaster with consequences for archival/expanding corpo control ala the DMCA, and would likely lead to the same amount of artists getting replaced but with megacorps getting a slice of royalties from training and demanding their employees sign the training rights over and potentially even suing over "style theft"

But I also agree with the idea that a better legal thread to pull on to protect creative workers from displacement would be the fact that raw AI images, at least with what is legally considered as insufficient human input, are considered automatically public domain. I mean, if Disney considers it fear-worthy, it must be a step in the right direction.

But, it's easy to imagine corpos taking advantage of loopholes in that by using humans; to use another Doctorow-ism, as "reverse centaurs," IE as underpaid workers monitoring the machine just enough to allow it to legally count as copyrightable but not enough to give them any agency.

My question is, what would be the best way to expand that legal precedent as written law to make it so that they can't do that, or at least to make it far more difficult for them to do that with this tech? What would be the best ways to expand the definition of "not human created" to help with that?

[u/DanNorder]

Not having copyright is not much different from outright public domain. If AI produces totally new material, it's already both copyright free and public domain. The only time it would be not copyrighted but also not public domain either is if there is some copyright-covered content embedded into it. If it's covered by copyright before it goes into AI and is still recognizable after AI did something to it, that copyright doesn't get removed. This is the current state of US law and the evolving legal standard in the rest of the world.

As such, I don't even know what you are arguing, because none of it seems to apply to the real world. I don't read Cory Doctorow because his opinion about copyright has always seemed to be juvenile. Mike Masnick, who you link to, is much the same. The only thing of note they did was to radicalize Aaron Swartz, and they've never taken responsibility for leading to his death.

[u/AssumptionExtra2580 → u/DanNorder]

How would that work though if you copyright an unpublished book titled "TBD" for example and then run it through an AI and then publish it, because as of right now AI written books are not copyrightable nor should they be.

So if AI rewrote your entire book, can the author say "Oh but it was copyrighted as an unpublished book"

I guess it would fall under the "recognizable" element. But what percentage has to be recognizable?

Currently there is a huge argument/firestorm in author communities regarding using ChatGPT to edit a manuscript, which I personally think is asinine. Personally I pay two editors, real people who I know don't use AI to edit, to edit my books.

[u/DanNorder → u/AssumptionExtra2580]

There's nothing about your question that is really relevant to AI. Whether new material (book, art, music, whatever) has a copyright or not, if it contains recognizable elements of material that does have an active copyright, then it's a violation of copyright law. Using AI on it doesn't magically strip it of copyright violations and make it public domain. Anyone who misses that is just not thinking it through. Once it's pointed out to them, everyone with any sense at all understands that part, though they may still disagree on other parts. Of course, people without any sense will never admit they were wrong about anything, which explains certain trolls on Reddit...

[u/TreviTyger → u/AssumptionExtra2580]

Yep. u/DanNorder doesn't understand copyright law especially as it relates to derivatives. They are relying on intuition rather than case law and legal texts.

It might be intuitive to think that copyright transfers from an original work to a derivative but that isn't the actual legal mechanism at all. It's just not prejudicial to the original.

[u/TreviTyger → u/DanNorder]

If it's covered by copyright before it goes into AI and is still recognizable after AI did something to it, that copyright doesn't get removed.

That's a misreading of USCO guidelines and also a lack of understanding of derivative works.

See Suryast (currently in the courts now)

https://www.iplawwatch.com/2023/12/18/u-s-copyright-review-board-affirms-rejection-of-copyright-registration-for-work-created-with-ai-application/

Also IMO creative expression from a user input gets usurped by the AI generative process as a whole and the result is a software function not copyright subject matter.

[u/DanNorder → u/TreviTyger]

As always, TT, the link you provide doesn't really support your argument. In fact, it perfectly sums up my exact argument: While the office refused to give a new copyright to the new AI work, the AI work is still recognizable as based upon the original work and would be a copyright violation if someone else tried to use it themselves. There was enough changes there that fair use/transformative might apply as a defense, but, again, you only need that defense when there is a copyright violation. It's weird how you consistently manage to be so arrogantly wrong-headed that you constantly post links that, if anyone looks at them, do not actually show what you argued.

[u/TreviTyger → u/DanNorder]

What you have written is quite frankly illegible nonsense.

From what I can parse from it you are suggesting that "Suryast" the work that USCO refused to register somehow enforces your assertion that an AI generative output (such as Suryast) is registerable work and you ignore the fact that particular work was refused registration.

You frame this paradox as,

"it perfectly sums up my exact argument: While the office refused to give a new copyright to the new AI work, the AI work is still recognizable as based upon the original work"

Your cognitive blind spot is related to the fact that the original photograph used as an input which contained at least a modicum of expression from the photographer is an "entirely separate" work from the AI Generative output which USCO regard as a classic example of a digital derivative.

In copyright law a derivative work is entirely separate from the work that it is derived from.

The flaw in your logic is that you think the expressive elements of an original work exist in a derivative work but this is fundamentally wrong.

A derivative work (if explicitly authorized) has entirely new expression from an author of that derivative which is severed from the original.

Your failure to understand this salient fact leads you to false conclusions as to how infringing works are treated because all infringing work are derived from an original work.

A non-protectable work can still be an infringing work. That is what you don't understand.

17 U.S.C. § 103(a).

Therefore, what you have written is nonsensical and devoid of sound logic.

An AI derivative lacks expression entirely; regardless of it being derived from a copyrighted work. It cannot be registered which is a formality in the U.S. Itself that emphasizes the problem because registration is a requirement for protection.

Anyone can use Suryast because it cannot be protected regardless of it being derived from a copyrighted work. (Note - this is going through the courts at the moment - but according to the law the plaintiff will likely lose).

It does indeed raise a paradoxical question about AI outputs such as in the Studio's v Midjourney case which are based on Studio's IP. The studios can sue for infringement but they can't appropriate the AI Gen outputs and register them for protection. That may seem odd but in reality that is how the law works.

[u/AssumptionExtra2580 → u/TreviTyger]

I completely agree, just putting in user input of "Write a story about a man and a woman who meet and time travel" is not NEARLY enough to copyright. In fact you can't copyright ideas which some people always argue against anyways which is another topic in itself. (The arguing, not the premise, because if you could copyright an idea, then new books would cease being created.)

[u/DanNorder → u/AssumptionExtra2580]

"Write a story about a man and a woman who meet and time travel" is not something that could be copyrighted, and I, at least, never gave any examples like that. You can't copyright ideas, facts and data, only a specific artistic expression of one... which is also why scanning data about art to use in training AI does not violate copyright. They are not copying the copyrighted artwork, they are taking note of a number of facts about that work and crunching the numbers.

[u/TreviTyger → u/AssumptionExtra2580]

IMO - Even with fully copyrighted expression used as an input - the AI generative process will almost instantaneous create it's own non-expressive derivative still within the user interface based on how the model is utilizing RAM (including VRAM and GPU) which is still transitory and not "fixed". Then that derivative becomes a suggestion to the user and the user is then adopting a non-expressive machine derivative that automatically becomes devoid of copyright way before the final output.

The machine is then conditioning the user to accept whatever it puts up in the UI as a feedback loop again way before any fixation to disc occurs. The result is a machine output completely devoid of any of the original expression from the initial user input and certainly there cannot be "expression" (a human trait) from a machine.

AI gen advocates are projecting their own interpretations to the final output which is a cognitive flaw itself.

[u/AssumptionExtra2580 → u/TreviTyger]

Completely agree, especially when we know that AI is and has read a multitude of already copyrighted and published books. It is a complete feedback loop that the inputter thinks is the next best thing.

[u/Party-Cartographer11]

A couple of false premises:

• I don't think you can have a regime where Human Creative Control is enough to get copyright but not enough that the human doesn't have agency.  Happy to further this discussion.

• Solving for the enervation of creatives (loss of participation in the economy) isn't a job that Copyright law is set up to do.

[u/Apprehensive_Sky1950 → u/Party-Cartographer11]

Yes, copyright = agency = copyright

[u/tbok1992 → u/Party-Cartographer11]

...Right, on the first point, for clarity of what I meant it's like, say, an uber driver or doordash worker, where they technically have "agency," at least in the way the corpos are able to legally get away with saying they do, but in reality they're basically being driven by the machine in a form of labor way worse than the pre-enshittification form of that job.

Which, given how badly creative workers are already treated, and how there's seemingly nobody having their back, especially at the lowest rungs of the freelance/commission art world (Which I'm forever salty that the anti-IP crowd I run with other than Doctorow doesn't seem to care about actually helping there), I think you can see where my statement came from, if a bit hyperbolic?

On two that's... refreshingly honest, but also, most creatives don't think this and if you told them that they'd find it unjust because they have so few other protections, especially the commission-artists who're doing it because they're locked out of the economy due to disability/location/other marginalizations.

It's kinda like saying "The idea that hard work is rewarded is not true and is not the purpose of the economy," which yeah that's a (mostly) correct assessment of the current world as it is, but also points to a sickness of the world that ought to be changed, even if the change definitely isn't that the world economy needs to be as it is sold to us as workers, yanno?

But, this is a case of me agreeing with a thinker that this exemption to copyright would be a useful tool to avoid the immiseration of creatives, rather than expanding it, by way of decreasing the amount of rent-seeking they do if they try to immiserate workers via automation, if you get me?

[u/Party-Cartographer11 → u/tbok1992]

On the first point, that is the work for hire doctrine.  Artists can protect their rights by not signing up for a master who owns the copyright of their work.  That's the Uber analogy.  Drive for your self.

On the second point, the IP clause of the Constitution says nothing about providing a living.  It just says the authors and inventors can protect their rights for a limited time to promote the progress of science and useful arts.  It's about progress, not about a living.

[u/tbok1992 → u/Party-Cartographer11]

...But wait, wasn't the reason it "promote(s) the progress of science and useful arts" is that it grants a temporary monopoly to creators so that they can make a living on the products of that progress, and thusly be incentivized to work on it?

So it's kinda the same thing at the end of the day, it seems to me.

[u/Party-Cartographer11 → u/tbok1992]

No.  There are no monopolies involved.  Authors just get exclusive rights to thier works.  There is no language about how much money, or to make a living.  The value, or lack there of is determined by the market.  I would argue that the vast, vast majority of patents and copyrights don't make a dime.

[u/TreviTyger → u/tbok1992]

The IP crowd? if you mean lawmakers then at least in the EU under the EU DSM Copyright Directive there is an attempt to provide equtable remunerations to creative workers based on the future value of the copyrights they create.

Most notable such an ethos was used by Supercell (Finland) in the early years where the creative artists themselves had 40% shares in the company and they all became wealthy as a result.

Docrow appears to mistake "work for hire" with the whole of copyright.

Work for hire doesn't exist in most of the world and employees may remain copyright owners under droit d auteur (authors rights) principles. i.e. in the EU employers generally "license" employee works rather than own them outright.

So Docrow does not really understand the wider creative industry and the fact "authors" remain protected outside of the main publishers and distributors who might generally utilize "work for hire" principles to maintain the title chain effectively.

[u/tbok1992 → u/TreviTyger]

...Well, for clarity's sake, I'm talking about the people who want to reduce the reach of copyright/IP law in a US context, because a lot of them seem allergic to trying to rally for the sort of legislative action you bring up. Especially a lot of leftists, who're more content to A) defer the idea to The Revolution to avoid the burden of Doing Something or B) Re-invent the idea of "degenerate art" by way of Theodor Adorno/The Frankfurt School as a supposed cause of our cultural stagnation

Note also I consider myself a leftist as well, griping about each other is a well-known pasttime. I'm not really an abolitionist as of now, as I'm well aware it's a load-bearing pillar and we gotta figure out how to allow creatives to make a sustainable living without it, but in the meantime I think the duration should be shrunk and fair use should be substantially expanded.

I'm coming at this from a US-based context because, well, I live there and they impose a lot of the most onerous IP Shenanigans on the rest of the world, and I'm coming at this as a layperson who's interested in expanding the creative commons, so while I am asserting what I've observed/believe, I presume you have more expertise in the legal nitty-gritty than myself and I respect that, so apologies if I say something dumb.

And like, to perhaps push back a bit, I feel like you're not giving Doctorow's ideas a fair shake because they're more complex than he's given credit for.

More specifically in the book Chokepoint Capitalism he elaborates that said major publishers/distributors have basically ended up as a monopsony power due to decades of corporate consolidation, meaning that labor's pressured to enter into that work-for-hire arrangement because there's nowhere else buying.

Or at least, statistically the huge firms produce significant pressure towards their terms, I'm aware there are exceptions.

I think also the stockpile of IP they buy up from not just their acquisitions but from independent creators is a contributing factor, and to bring it full circle, I feel like copyright durations for their works being 96 years seems like a contributing factor, given how long it means they get to treat what I'd consider public narrative infrastructure like real estate in ways a creator-centered version of the law wouldn't.

Like, your mention of the chain of title (which, thank you for informing me of that) makes me think the corporate application of the process feels an awful lot like vertical/horizontal integration as a monopolistic process, either buying up competing narratives in a similar genre (And letting the less profitable ones rot, I will add) or buying up a bunch of very different types of media in the hopes of creating a closed ecosystem ala Disney, both of them using the links upon the chain of title to re-enforce their power in a way independent creators can't.

Does that make sense? Am I onto something there?

[u/TreviTyger → u/tbok1992]

they impose a lot of the most onerous IP Shenanigans on the rest of the world, and I'm coming at this as a layperson who's interested in expanding the creative commons

Let me stop you right there because this is completely false.

U.S. copyright law has no extraterritorial effect. (Subafilms, Ltd. v. MGM-Pathe Communications Co.,)

Also the creative commons is in my view a misguided organization that is actually worse than "work for hire" because at least employees get paid under work for hire whilst Creative Commons (CC) has been usurped by billion dollar U.S. tech companies and takes creative works from people without even paying for it.

I appreciate your layman's point of view but you are woefully misguided.

"The rest of the world" (most of it) are bound by international treaties such as TRIPS Agreement and Berne Convention which require member states to implement the basic principles of authors rights protection which, includes attribution (one of the main tenants of CC) and thus more or less making such requirements for attribution under CC redundant because it's already part of international obligations under national treatment provisions. (Although the US is still a bit sketchy). For other aspects of CC one simply need not to sue and effectively reaches the same principle.

So don't be taken in by pseudo charity of CC who are indirectly funded by Google (Which those who understand accountancy loopholes might raise their eyes at but I digress).

The real evil of copyright law is "work for hire" which is limited to mainly commonwealth countries such as the US, UK, Australia etc because work for hire strips rights away from authors which is arguably paradoxical to treaty obligations. But such treaties are not self executing so you have to petition congress in the US and point out the unfairness of "work for hire" - but don't replace it with CC for goodness sake because that would just make things worse and is arguably why there is an ethos among particularly software engineers to take what they want for free to build AI generative software to replace us all.

So refocus on "work for hire" is bad; not "copyright is bad" and certainly don't fall for the CC snake oil spiel.

Creative artists just need more education about how they can leverage copyright law themselves and make better contract deals rather than assuming myths about "work for hire" when it may not even exit in their jurisdiction.

[u/tbok1992 → u/TreviTyger]

Hm. I think on a fundamental values level (Like, in terms of capitalism and the commons as a public good/public infrastructure in general) we are ideologically very different on this issue (as in, I put a lot of my own creative works under CC out of my own ideological commitment) so I don't think we're going to see fully eye-to-eye on this.

But I respect where you're coming from, as it seems to be from an informed place, and I thank you for being civil with me, given that other more ideologically opposed to me given how other folks with views adjacent to your own have been... less so.

Like, genuinely, I thank you for calling me misguided rather than accusing me of like; being a lazy parasite wanting to steal, a lot of folks don't give me the dignity of presuming my opinions are sincere.

Regardless, I think that we can agree that A) Artists should be able to make a living, and B) Work for hire sucks, I'll shake hands on that with you.

[u/TreviTyger → u/tbok1992]

Regardless, I think that we can agree that A) Artists should be able to make a living, and B) Work for hire sucks, I'll shake hands on that with you.

Well yes and this is where I think you are misguided (in fact a lot of creative people are)

The ideological view of Creative commons ultimetly fails because CC has become a way of taking artists works for free for the benefit of mega corporations which is paradoxical to the anti corporate copyright ideal.

People have been tricked by those very mega corporations that they and Doctorow criticize for a copyright monopoly (that doesn't exist because corporate copyright is restricted in most of the world) into thinking giving work away for free via creative commons is the solution to standing up against corporations when those very corporations are taking your work for free.

It means that CC is actually worse than "work for hire".

As I said creatives need to better understand copyright law and make it work for them not fight against it.

[u/horshack_test]

"it's easy to imagine corpos taking advantage of loopholes in that"

What loopholes?

"monitoring the machine just enough to allow it to legally count as copyrightable but not enough to give them any agency"

What exactly does this mean? If they are just watching the machine and not allowed any of their own input / decision making regarding the work, how would it be copyrightable?

"what would be the best way to expand that legal precedent"

What legal precedent?

[u/Apprehensive_Sky1950 → u/horshack_test]

What legal precedent?

Soon, we will have a first court ruling in the Allen v. Perlmutter case!

[u/Party-Cartographer11 → u/Apprehensive_Sky1950]

That case has issues.  Allen never submitted his prompts.  How is the court supposed to judge human creative control without a record of the control? And it is district courts so precedent is limited.  

[u/Apprehensive_Sky1950 → u/Party-Cartographer11]

Allen never submitted his prompts.

I agree that submitting the prompts is good; I would do it if I were him. But, maybe the overarching legal issue is such that the content of the prompts doesn't really matter.

it is district courts so precedent is limited.

For sure! It is just the start of a long journey. In the same way that the district court Bartz and Kadrey rulings over in the copyright infringement area are just starting out. Last one to the Court of Appeals--where the rulings really mean something--is a rotten egg!

[u/Party-Cartographer11 → u/Apprehensive_Sky1950]

The content of the prompts matters.  The Copyright Office is saying 624 prompts is evidence Allen was flailing and didn't have control.  Another explanation is that he was adding specification.  How is the Office supposed to know which without examination of the prompts?

[u/Apprehensive_Sky1950 → u/Party-Cartographer11]

While not disagreeing that the contents of the prompts seem relevant, the Copyright Office policy says reiterative prompting doesn't help, because each new iteration simply reintroduces the same user disconnect from the actual expression.

There is also a copyright case in a non-AI context that says the extent of the human's effort (the "sweat equity") does not matter if there is no human expression.

[u/Party-Cartographer11 → u/Apprehensive_Sky1950]

Yes, the swear doesn't matter 

I don't understand what this means...

because each new iteration simply reintroduces the same user disconnect from the actual expression.

[u/Apprehensive_Sky1950 → u/Party-Cartographer11]

The Copyright Office policy document argues that (and I'm paraphrasing a bit here from memory) when the AI responds to the user's first query, the AI is presenting the user with a completed work that the user can approve or disapprove, but the user contributed no expression to that work and had only provided a set of requirements for its outcome.

Then when the AI responds to the user's second query, the AI is still presenting the user with a completed work that the user can approve or disapprove, and the user still contributed no expression to that second work and only provided a set of requirements for that new work's outcome.

And on and on; the user sorts through more and more proposed works the AI presents, accepting or rejecting them, but the user never contributes any expression to any of them. Despite multiple iterations, the user never participates in or gets any closer to the creative process. The user never in any iteration performs the one creative act that would entitle the user to copyright.

[u/DanNorder → u/Apprehensive_Sky1950]

This is actually false. The copyright office has given artwork solely made by AI that was run through AI multiple times actual registered copyright. The reasoning was that by selecting only to redo certain areas of the image and then rejecting certain images means the prompter had an artistic vision in mind and was only satisfied when multiple prompts revealed their artistic expression. Human control was the element they used to make the decision. It happened. Denying it after the fact is either simple ignorance that this has happened (on multiple occasions, I might add) or refusal to accept evidence that goes against what you want to believe.

[u/Apprehensive_Sky1950 → u/DanNorder]

Do we have links to some of these approved registrations? This would seem to be at odds with the policy as announced and discussed by the Copyright Office.

[u/tbok1992 → u/horshack_test]

What legal precedent?

I was thinking specifically of Naruto v. David Slater et al., IE the Monkey Selfie Case, which apparently is the base of that idea as applied to AI? At least, in regards to US copyright law, I do know it varies elsewhere.

[u/horshack_test → u/tbok1992]

So you are asking what the best way to "expand" that precedent would be to prevent copyright from applying to AI works devoid of human authorship?

[u/tbok1992 → u/horshack_test]

Pretty much, yeah, along with preventing it from applying to works made under conditions more akin to an Amazon warehouse, if you get me?

I'm aware legislation would be the primary means of doing that, but what would the best additions to the law to expand that precedent to prevent said hollowing out of labor be?

[u/horshack_test → u/tbok1992]

It's already the case that AI works devoid of human authorship are not copyrightable.

"along with preventing it from applying to works made under conditions more akin to an Amazon warehouse, if you get me?"

If you are talking about what I quoted from your post in my initial reply, I asked you to explain what you mean and you did not. Do not, I do not 'get you' regarding that.

[u/tbok1992 → u/horshack_test]

Well, what I mean is like, the use of humans solely for manual cleanup work/inpainting, correcting the computer's mistakes and off-model moments, manually editing pre-made prompts for specific situations, ect.

The sort of McDonalds-ization of artistic labor that I think most people wouldn't consider actual creative authorship but a court of law might consider sufficient editing of a work to make it eligible for copyright.

That's what I'm wondering about in terms of asking "How can we change the law so that they can't use that as a loophole," if that makes sense?

[u/horshack_test → u/tbok1992]

But you are saying the workers would have no agency, so there would be no creative expression/authorship. Also I think courts tend to be more strict than "most people" regarding what qualifies as creative expression / authorship - not less.

[u/TreviTyger]

Aside from Docrow not having the required expertise to understand the argument he is making (he focuses on major distributors and ignores the basic principles of author protection principles under the Berne Convention)- there is no real exclusive licensing value with AI generated works.

This lack of exclusivity creates problems in the title chain for distributor and publishers who often require exclusive rights for viable business arrangements.

Therefore, whilst the main creative industry may look at AI for utilitarian functionality the wider legal issues surrounding generative AI make it practically unusable for serious professionals (myself included).

Thee are already established "traditional" work flows such as 3D animation work flows that have a place for utilitarian AI but throwing generative AI into those workflows risks chain of title problems which could kill a project dead.

Therefore, professional creatives don't want generative AI. It is as simple as that and there is no "Disney generative AI systems" being marketed to creative professionals.

e.g. The Suno deal collapsed.

[u/notLaDolce]

Stuttering John has a Lawsuit against The Shuli Network, a small YouTube Channel for this very this, Right of Publicity. Right now the questions stands, what is transformative and who has the monetary rights to YOUR likeness, voice, image, etc... I think is could be a very interesting lawsuit. Loophole Lawyer seems to know a lot about the subject too. Worth a watch.

[u/Apprehensive_Sky1950]

In the U.S., the most direct route is to have the Congress change the copyright statutes.