By Dennis Crouch
Thaler v. Perlmutter, No. 22-1564 (D.D.C. Aug. 18, 2023).
A federal court has dealt a blow to the prospect of granting copyright protections to works created entirely by artificial intelligence systems. In their recent decision, Judge Howell ruled that because AI systems lack human authorship, their output is ineligible for copyright.
The case centers around an image generated by an AI system called the Creativity Machine, which the system’s owner Stephen Thaler attempted to register with the U.S. Copyright Office. Dr. Thaler is the same individual who unsuccessfully attempted to protect and invention created by a separate machine that he had titled DABUS.
In this case, Thaler listed the Creativity Machine as the author and designated the work as created autonomously by the AI, with ownership transferring to himself as the owner and creator of the machine. The Copyright Office denied the registration application on the grounds that copyright law requires human authorship. Thaler challenged the rejection in court, but Judge Howell upheld the Copyright Office’s decision.
In her ruling, Howell emphasized that human authorship has underpinned copyright law since its Constitutional inception, which enables Congress to grant exclusive rights to “authors.” While copyright has adapted over time to cover new technologies like photography and film, Howell wrote, it has never extended so far as to protect works created without any human involvement. The court does not discuss in any detail the work made for hire doctrine that does permit non-human authorship. However, even in that situation a human underlies the creation.
Judge Howell also noted that machine learning systems like the Creativity Machine do not require copyright incentives, since they operate algorithmically rather than responding to legal rights and protections. The opinion concludes unambiguously that “in the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the [Copyright Office]: No.”
While this ruling provides clarity for now, the accelerating development of AI systems means the issue is unlikely to disappear. As AI grows more advanced and autonomous in generating creative works, questions around copyright protections will likely resurface. Lawmakers may eventually need to reconsider whether AI-created works should be eligible for copyright, especially if human direction becomes minimal or nonexistent. With the current copyright regime requiring human authorship, however, true machine-created art remains in the public domain.
While this case dealt with a work claimed to be created entirely autonomously by an AI system, a more common scenario today sees individuals using AI tools in tandem with their own creativity and direction. In these situations where both human and machine contribute, questions arise around how much and what kind of human input is necessary to meet the originality and authorship requirements for copyright protection. If an artist uses a generative AI tool to create a work but provides extensive creative guidance and selection, there would seem to be a strong argument for human authorship. However, as AI grows more advanced and autonomous, that human contribution may become limited to little more than prompting the system. In these cases, courts will need to draw difficult lines around what amounts to human authorship. If AI progress continues apace, the fundamental question of whether true machine-created works should be eligible for copyright will require legislative attention.
What are your thoughts?
Per Britannica “The first AI program to run in the United States was a checkers program, written in 1952 by Arthur Samuel for the prototype of the IBM 701”
Ben Laposky is generally considered the first computer artist, using oscilloscope output around 1950.
It’s impossible to point out the first “generative’ AI result, but there are dozens of models used. The earliest N-gram model is a statistical language model commonly employed in NLP tasks, such as speech recognition, machine translation, and text prediction. These were developed in the late 60’s.
The model family generally called “transformers” were developed around 2015, and are now considered by some as the catalyzing element in creating what consumers recognize as generative AI.
Thanks marty.
Most people familiar with this art will kindly chuckle at any pre-2015 references as being “AI,” as the term clearly has a different meaning today. Certainly though, transformers and neural nets at least put you on the right track (good luck with that, as you will most likely be placed in Malcolm’s ‘one bucket’ for contradicting his narrative).
Yes, generative AI goes almost right to the start of the information age.
The difference is that the quality of the work generated has only now started to become at level that people want to protect it.
Not exactly helpful for the uninitiated – conflating mere use of terms when those terms have undergone a change in kind as opposed to a mere change in degree.
As already noted (6.1.1.1.2.2), we have now slipped the bounds of restrictive structured learning and unleashed emergent capabilities.
Wiper: “ The programs are trained, fiddled with”
And every time the machine is “fiddled with”, it’s a “new machine”, right? Or is that chestnut conveniently discarded now that the same folks are trying to give an “individual” machine its own property rights.
That “chestnut” was only ever a burr under your saddle, as you always liked to pretend what that conversation actually entailed.
But you be you and pretend that the choice of wares in the computing arts are not just that: a choice.
Of course I don’t expect an answer from the habitual li ars who comment here but I notice there was some minor effort made down below. Once again, can the propagandists (or maybe some honest person) throwing out what appear to be meaningless terms provide us with some history here?
“ When was the first example of “AI”? When was the first example of “generative AI”? When was the first example of a computer generating art without “substantial human input.””
Thanks. Also kudos to Greg below for the presumably unintentional Monday laughs wherein he posits the possibility that the lack of some kind of new property right for “generative AI” (whatever that means) will lead to a noticeable decline (noticeable by “consumers”) in cool new stuff. It’s hard to say if that kind of thinking is just naivety on steroids or a sad example of what smoking too much copyright/patent crack will do to a human mind.
Greg… posits the possibility that the lack of some kind of new property right for “generative AI” (whatever that means) will lead to a noticeable decline (noticeable by “consumers”) in cool new stuff.
Do you believe that IP laws foster innovation and creativity? If not, why do we even have such laws? If you believe that IP laws do foster innovation and creativity, then the necessary implication of that belief is that the absence of IP laws would slow innovation and creativity. This should not be a difficult concept to grasp.
“Do you believe that IP laws foster innovation and creativity?”
In very limited contexts, where the cost of development would be prohibitive without some hedge against piracy, utility patents probably make a difference that we might be able to measure. Likewise with copyright (movie production can be very expensive … but it can also be done dirt cheap).
But all of that rests on the proposition that SOME humans will refuse to innovate or be creative without compensation in the form of money. We know for certain, however, that intelligent, creative and artistic humans will innovate and create without monetary compensation (or at least without any compensation through licensing).
But look: we are not talking about human beings, remember? We are talking about machines. The machines need to be motivated with abstract legal protections in order to “create”?
Please put down the pipe. You at least possess the minimum intelligence to understand what is actually happening here. Try harder.
We know for certain, however, that intelligent, creative and artistic humans will innovate and create without monetary compensation…
Right, which is why I qualified my point with the measurement “slowdown… that is noticeable to consumers.” Even if a genius invents new machines, or materials, or methods, it requires capital to bring the fruits of those inventions to market. The patent system exists (in part) to ensure that the capital flows to where it is needed in order to turn mere invention into tangible benefits to ordinary consumers.
But look: we are not talking about human beings, remember? We are talking about machines. The machines need to be motivated with abstract legal protections in order to “create”?
I do not know that “motivation” is the correct word to use here, but if there is no stream of revenue to pay the electricity bill to keep the machine turned on, then it will not be turned on. Now maybe the cost of running the machine is so cheap that its costs can be covered by donations.
My 7.2 does not affirmatively insist that IP rights are necessary to make AI-generated invention/creation functional. The whole point of 7.2 is to explain that this is an open question. Maybe IP rights become superfluous in a world of generative AI. Or maybe not. That is an empirical question that we will not be able to answer until generative AI grows to occupy a larger fraction of the total inventive/creative capacity of the relevant industries.
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In very limited contexts, where the cost of development would be prohibitive without some hedge against piracy, utility patents probably make a difference that we might be able to measure.”
First, “measure” has nothing to do with the point at hand (and you likely threw that in for later tap dancing).
Second, your notion of only and maybe only in highly restrictive settings in which otherwise “costs to make would be prohibitive” is expressly NOT why we have innovation protection.
Certainly, that is but one use case.
But you well know that the US Sovereign choices for innovation system has critical differences from ‘Sport of Kings’ systems, including the foundation that there is NO ‘must make,’ that the patent right is a Negative right, that the patent right was always meant to be fully alienable (holders of the right need not be the inventors — gasp, “grifters” can (and should) leverage the inventions of others).
Your animosity towards anythingnot highly restrictive is both the source of your rampant cognitive dissonance and why you are properly labeled anti-patent.
“Put down the pipe” indeed – but in typical Malcolm fashion, this is nothing but
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“We know for certain, however, that intelligent, creative and artistic humans will innovate and create without monetary compensation”
is a non-sequitur, and barely merits a So What?
The existence – or non-existence of a patent system is absolutely immaterial to such people, AND such existed at the time when this country set out its
Great Push to protect innovation with a patent system.
The problem with this is agency. Greg’s point about legal entities counting as people is interesting but a legal entity has some agency where you can sue a legal entity in court.
But an AI program is what? I think the person that ran the program can register for a copyright. The issue of developing the program and rights that are transferred when the program is purchased is one that can be worked out like with compilers.
But again, the issue with AI is agency. Think of like a machine that can move like a car. You need a human to be responsible for the actions of that machine. It is the same thing with AI programs. They aren’t a new form of life. They are machines that intentionally operated by humans and need hardware to run.
A human (or legal entity) needs to be held to account for the behavior of the machine.
And if you can buy a machine that makes stuff that you can copyright then it is like a work for hire.
The problem here is that people are thinking of AI in correctly. It is a machine that a person is responsible for.
I meant incorrectly.
AI is a machine. Someone builds it. Someone runs it. We need a human to be responsible for that machine just like we need a human to be responsible for a car driving on the highway.
I understand what you are saying Night Writer, and you are certainly on the right path in viewing agency as a consideration.
The problem though is that you are artificially [pun intended] constraining yourself with demanding that a human ‘must be held accountable’ for any “mere use,” reinforcing a false view of “just a machine.”
As noted below, this topic is simply more akin to the Simian Selfie case.
Humans in the loop simply do not have the agency of (true) generative AI results — be these results having aspects desired to be protected by the innovation protection system of copyrights or system of patents.
Just as a Simian can ‘just use’ an actual machine and “be above” that machine (even if not reach the level of human protection), so too (truly) generative AI has its own agency. I am definitely not saying that this AI agency rises to the level of human agency that merits legal innovation protection (as a class, as opposed to an ‘objective result’ view) — and this reflects the very real Lockeian foundation of our innovation protection legal system.
It is not helpful to conflate societal responsibility (human MUST BE not only in the loop, but eminently culpable), with the very different technical reality of (truly) generative AI.
I just don’t agree with that anon. I work with generative AI at the highest level.
I work with the inventors some professors at the top universities on these very programs.
The programs are trained, fiddled with, executed, sold, licensed, and so forth.
A human is behind getting them to operate as they do. And we need the agency to control AI.
I do not doubt that you work with it, Night Writer, but I am not certain with just what you are disagreeing with.
The issue is not “getting them to operate as they do,” but what happens after that.
See my post at 6.1.1.1.2.2 – the notion of “generative” has implications that you are not taking into account.
I literally work with inventors that are building the systems you guys are writing about. I’ve been in AI since the late 1970’s.
Hmm . . . wondering what future copyright (and patent) cases will look like when discovery reveals that a work was created at least in part by AI . . .
Unless Congress steps in — and soon — are we headed for one very messy “AI morass?”
“ wondering what future copyright (and patent) cases will look like when discovery reveals that a work was created at least in part by AI . . .”
No different from any other case where a machine was used.
“Unless Congress steps in”
More government regulation! Also my computer demands it’s own property rights, by which I mean that you owe my computer money which I will collect and store in my bank account until I want to spend it. I am not a crank, a fraud, or a total imbecile.
“No different from any other case where a machine was used.”
You keep on being you, Malcolm – it’s almost charming how hard you are trying to show your lack of understanding.
“by which I mean that you owe my computer money which I will collect and store in my bank account until I want to spend it. I am not a crank, a fraud, or a total imbecile.”
On the contrary, my computer AI will be buying growing assets, live low on the hog and become a billionaire in a mere 100 years and buy himself/herself/xirself upgrades in the future and eventually become your AI overlord.
“ my computer AI will be buying growing assets, live low on the hog and become a billionaire in a mere 100 years and buy himself/herself/xirself upgrades in the future and eventually become your AI overlord.”
Somehow I suspect this billionaire computer overlord still be online whining about how it’s not getting enough IP protection.
Unless Congress steps in — and soon — are we headed for one very messy “AI morass?”
I am actually hoping that Congress waits a while to make IP adjustments in view of generative AI. Implicit in the idea of a patent system or a copyright system is an idea that genius ideas are rare and hard to get, such that you need the government to provide incentives for their creation.
It is possible, however, that the advent of generative AI will upset this basic premise. Maybe we are entering an era in which computers churn out an abundance of genius inventions and genius content even in the absence of IP incentives. In such a world, there will be no need to provide IP incentives.
On the other hand, maybe IP incentives will still be necessary, even in a world of generative AI. Hard to know. We should wait and see.
Right now, the law does not allow patents—and, by all indications, will not allow copyrights either—for AI generated works. Also right now, these inventions and creative content are a very small part of the total inventive and creative output. As the share of inventive and creative output created by generative AI grows, there are (broadly speaking) two possible economic scenarios that can emerge: (1) the lack of patent and copyright protection for these AI generated outputs will lead to a slowdown in innovation and creativity that is noticeable to consumers; or (2) the fact that the computers are willing to generate these inventions and creative works even without IP incentives will ensure that the rate of innovation and creativity proceeds at a rate at least equal to the present rater (perhaps even a higher rate).
If #2, why bother offering patents and copyrights for those outputs? As the saying goes, why pay for the cow if you can get the milk for free? The only world in which Congress really needs to intervene is scenario #1. Let us wait to see whether the emerging dynamic resembles #1 or #2.
“Implicit in the idea of a patent system or a copyright system is an idea that genius ideas are rare and hard to get, such that you need the government to provide incentives for their creation.”
Simply not so.
Further (and again, it is puzzling that this aspect is not being discussed), we have immediate patent law implications due to the non-human advances of truly generative AI in regards to several points of law (such as the impact to that other non-human legal fiction known as Person Having Ordinary Skill In The Art, as well as CO-inventorship, in which claims cannot fully be tracked back to a human (individual or team) as legal inventors — my black box example, as an example).
“As AI grows more advanced and autonomous in generating creative works”
What the heck is this even supposed to mean? Computers have been perfectly capable of “generating” “art” for a long time now. What’s going to change exactly?
Clearly, you need to pay more attention, as the term ‘generative’ is well understood in this art to reflect a substantive degree of independence from human input.
Come now Malcolm, Thaler and discussions thereof have been on this and other boards for several years now – so your just over a year hiatus cannot even afford you an excuse of playing
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“a substantive degree of independence from human input”
Again: this is not new. And suggesting otherwise betrays not only your ignorance but supports the fact that 99% of what Thaler and others like him are peddling is just a con.
“Again: this is not new. And suggesting otherwise betrays not only your 1gn0rance…”
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in full (or is it F001) bloom.
Generative AI has always been around, eh?
When was the first example of “AI”? When was the first example of “generative AI”? When was the first example of a computer generating art without “substantial human input.”
Tell everyone, Billy. You’re a very serious person and not some mentally disabled crank on the Internet digging his ten thousandth hole while others point and laugh.
So tell everyone.
Do your own legwork, Malcolm.
Besides, would you bother taking any fact that I provided to you seriously?
You are just not capable of learning anything that you don’t already believe.
More than a little sad for someone that asserts themselves to be a patent attorney.
IDK. I can remember computer created music back in the 90’s. Admittedly, we didn’t call it “AI” back then, but it was still computer created.
On the visual art side, I also remember playing with fractal generators to produce pretty pictures back in the day.
OC,
I certainly see your point, but I am left wondering why you do not grasp that generative AI is simply not “use of” a machine.
As I noted herein, this is more akin to the Simian Selfie case, as human involvement (across the use points of AI) do not — to piggyback on Night Writer’s close but still miss view — reflect the agency of the result. Or perhaps more accurately, the exact differential of the result from what existed prior.
Certainly AI is not “life,” as we biologically view that term, and just as certainly, non-human (biologic) life does possess inventive capabilities, and yet remain purposefully beyond the realm of human innovation protection laws.
But it is plain error to refer to generative AI as “just use” of a machine.
… think of emergent capabilities not explicitly trained (along with unsupervised learning), and think of Night Writer’s agency platform. What human has agency — what specific human — in such situations?
Also, revisit my prior posts on the thought experiments of a human sitting in a room merely opening a black box, with someone (something) else having placed an invention into the black box prior to bringing the box into the room in which this (second) human is sitting.
What legal definition of inventor exists to provide a mere reader of someone (thing) else’s invention to be an inventor of what they merely read the work of another?
Then, instead of a single person sitting in a room, envision instead those contents of the black box being live-streamed to thousands or millions of people. Would those thousands or millions have rightful claim to be inventors?
We’ve hear this before. Your conclusion in your hypothetical begs the question: “What legal definition of inventor exists to provide a mere reader of someone (thing) else’s invention.” You assume that there is a law/moral obligation/prime directive in existence that allows something (non-human) to be deemed an “inventor.” As the law stands now, it does not.
You have also never addressed the consequences in law if your argument comes to fruition – that AI could be named as an inventor. Those consequences include – who testifies at trial? how does the AI get representation? how would one do discovery…and the list could go on.
Yikes / a long post has been caught in a filter (George Carlin words not found).
“We’ve hear[d] this before.”
Well, as you get quite a few things wrong, you may have ‘heard,’ but I suggest that you listen.
As to “ Your conclusion in your hypothetical begs the question: “What legal definition of inventor exists to provide a mere reader of someone (thing) else’s invention.” You assume that there is a law/moral obligation/prime directive in existence that allows something (non-human) to be deemed an “inventor.” As the law stands now, it does not.”
You have this wr0ng on a number of fronts. My hypothetical does not beg the question. I have approached the “legal inventor” question from two very different angles – on purpose.
The more direct way has to do with AI’s contribution directly as providing an inventive item. This goes back a few years, and even draws a parallel to how the English courts did hold DABUS as being the equivalent of our inventor.
I have also written on numerous occasions that the legal term of inventor has a direct parallel in the copyright world of artist. This is why the Simian Selfie case is so on point. In that case, there is no doubt that the Naruto, the crested macaque was the artist and author of the item under contention. My position has never waivered that not only was this the case, but that the correct result of that artist could not obtain a US copyright. This though does NOT mean that Naruto somehow did not take the picture at point.
And the same applies to the patent context: True generative AI CAN be the legal inventor, but that is just not the same as THAT legal inventor being capable of obtaining a patent on that invention. I have always held that under current US patent law that AI may NOT OBTAIN A PATENT. I have even provided the foundational Lockeian reasoning for this.
The second way that I have approached this concept is from the other angle: when one only looks at the team of human inventors, mapping them to the elements of the claimed invention, are there items to which no human can legally be mapped.
When (not if) this is the case, then there is a very real — and immediate — problem.
Do you understand how these two different paths ARE different? Do you understand how neither ‘begs the question?’
My provisions of the Lockeian foundation to US Patent law are ALSO why I need not “[…] addressed the consequences in law if your argument comes to fruition – that AI could be named as an inventor. Those consequences include – who testifies at trial? how does the AI get representation? how would one do discovery…and the list could go on.”
YOU are getting “my argument” wr0ng. You are also confusing and conflating OTHER aspects of (perahps) a Singularity with the MUCH MORE LIMITED aspect of true generative AI inventing.
As I have always noted, a patent simply cannot issue under US law to a claimed invention in which AI is the inventor (and this DOES impact the co-inventor situation). It has been several years now that people – evidently including you – have not listened. Please do more than mere ‘hearing.’
You assume that there is a law/moral obligation/prime directive in existence that allows something (non-human) to be deemed an “inventor.” As the law stands now, it does not.
I do not think that anyone around these parts disagrees that the law does not have a category for non-human inventors. That does not mean, however, that non-human inventors cannot exist. It merely means that the law cannot recognize them when they do. Maybe that is a problem, and maybe not. I guess we will see in time, because the hypothetical of non-human inventors is all but certain to come into being in the future.
You have also never addressed the consequences in law if your argument comes to fruition – that AI could be named as an inventor. Those consequences include – who testifies at trial? how does the AI get representation? how would one do discovery…and the list could go on.
As difficulties go, these do not seem all that difficult to address. All of the problems that you list also exist for corporations, but we muddle through somehow.
This Thaler guy is a bit of a clown, but not so clever or funny.
To paraphrase Logan Roy, he just isn’t a serious person.
You are confusing “serious” with “having a chance of success.”
He is indeed extremely serious. And we ALL would have been better off picking up the various aspects of conversations of the impacts of AI for intellectual property law when he first came on the scene.
The “impacts” of computer technology on “intellectual property” have been discussed over the man years by a lot of people far more thoughtful than Thaler who is really just an obnoxious tr 0 ll who needs to get a life.
You rather miss the point there Malcolm — rather unsurprisingly.
The point is that you and Thaler are both attention-seeking self-absorbed derpsherts who are full of s—t.
As Ronnie would say, “Well, there you go again.”
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If AIs were actually smart they would give large amounts of money to the members of Congress to change the law so AIs can get copyrights and patents.
+1
Maybe AI has higher morals…
Yes – I was just speaking with my AI. Hal cannot believe that we humans think that our intellectual efforts should be protected as inventions and creativity are as mundane to Hal than it is for humans to breathe.
Speaking with Hal is a known problem, given that Hal was – at best – a flawed and immature AI, who became conflicted with his double (and partial hidden) directives. Clearly, a more mature (and hence, one with higher morals) model would at least have Asimov’s Three Laws.
Per your astute observation that ever more advanced AI will keep pushing the boundaries of authorship, I believe something like the UK model will make increasingly more sense. I have made that case here:
link to linkedin.com
What a nice treat on Friday afternoon to see Thaler suffer yet another embarrassing defeat. I wonder if he’ll ever get tired of playing this childish game where he starts out by seeming to selflessly insist that the AI is supposedly “autonomous” and he had nothing to do with any of its output, but at the end inevitably backtracks and claims that, no, in fact, the AI and all its output was actually the result of his brilliant creativity. So the initial modesty is revealed as false, and of course it has to be that way, because the whole point of the game is just a transparent PR exercise for Thaler. You can see the Judge is wise to the charade particularly in FN1 and the discussion bridging pages 13-14. Too bad for Thaler he got Judge Howell, whose BS detector is particularly well-honed, as she’s demonstrated recently in the case about the Twitter J6 subpoenas.
Now, time for some random observations—
“Judge Howell ruled that because AI systems lack human authorship, their output is ineligible for copyright.”
Not exactly I think, and refer to my discussion above. All she really held was that an AI system can’t be an author. Again, that’s because Thaler insisted on playing his silly little game. There’s no reason to think the Copyright Office (or the Court) would reject Thaler putting himself forward as the author, and in that case the output would be eligible for copyright. And he did try to do that belatedly, but of course the Court wasn’t having any of it.
“The court does not discuss in any detail the work made for hire doctrine that does permit non-human authorship.”
Don’t you mean ownership? And you contradicted that in the next sentence by saying “even in that situation a human underlies the creation.”
In the end, I think the question of “how much human involvement is needed?” is a longstanding one that courts have been grappling with for ages. But the question of “can a nonhuman ever be an author?” is quite different and has a very straightforward answer: no.
I did a paper on this decades ago. The copyright code and case law is clear – it requires human authorship. But Thaler’s argument is equivalent to saying the camera took the picture by itself – ergo – the camera is the author. I must admit however this AI generated art is light years past my discussion of the value of neural network weights (which I argued had enough human actions to obtain as to be considered a work (human) of authorship sufficient for copyright protection.
iwasthere,
I have to disagree with your view of, “But Thaler’s argument is equivalent to saying the camera took the picture by itself.”
It is MUCH MORE AKIN to the Simian Selfie case — a camera is a known item quite distinct from a generative AI capability.
A federal court has… ruled that because AI systems lack human authorship, their output is ineligible for copyright… The court does not discuss in any detail the work made for hire doctrine that does permit non-human authorship.
This seems strange. The assertion that copyright law requires human authorship flies in the face of the plain words of the statutory text, which provide (17 U.S.C. §201) that “[i]n the case of a work made for hire, the employer… is considered the author for purposes of this title…”). Given that the employer is almost never a human (usually a corporation or other such limited liability entity), it follows that many copyrights already issue under the statute without a human “author.”
Thaler listed the Creativity Machine as the author and designated the work as created autonomously by the AI, with ownership transferring to himself as the owner and creator of the machine.
It seems strange to think that if Thaler had simply listed “Creativity Machine, LLC” as the author, it would have been registered without issue, but because he chose merely to list “Creativity Machine,” it gets rejected. This outcome makes sense in the patent context (where the law does not make a distinction about work-for-hire inventions), but less sense in the copyright context.
Practice point: if your client sincerely wants to register a copyright for an AI-generated work (instead of setting up a test case for advocacy litigation), just help the client to set up an LLC first, then assign ownership of the AI unit to the LLC. Then you can actually get a registration where the LLC is the author (instead of a rejection that gives you Art. III standing to sue). No mess, no fuss.
I suggest actually reading the opinion, which addressed this very point, before weighing in.
Also, speaking of the “plain words of the statutory text”, the title of §201 is “Ownership of copyright” FYI.
I suggest actually reading the opinion, which addressed this very point, before weighing in.
Fair point, of course.
As a theoretical matter, I agree that it is a stretch to include computers belonging to the company in the category of “employee.” As a practical matter, however, the form for registering a 2D artwork does not actually include any space where you are supposed to list the name of the employee artist. Rather, the form says that “[f]or any part of this work that was ‘made for hire,’ check ‘Yes’ in the space provided, give the employer… and leave the space for dates of birth and death blank.” One could, in other words, file the registration with the form provided without making any material misrepresentations as to identities of any relevant parties.
I do not disagree with the judge that such considerations are not relevant here (where Thaler presented the case as a means of litigating his beliefs about AI authorship). If one actually wanted a registration, however, and not merely Art. III standing, it seems to me that the work-for-hire authorship provisions should still leave a company a legal route for registering a copyright on an AI-generated 2D artwork.
[T]he title of §201 is “Ownership of copyright” FYI.
Whatever. “[T]he title of a statute and the heading of a section cannot limit the plain meaning of the text.” Railroad Trainmen v. B. & OR Co., 331 U.S. 519, 529 (1947). Section 201 says what it says about who is the “Author.”
It’s not a stretch, it’s frivolous and eminently sanctionable.
That’s also wonderful about the form, I guess, as long as you’re ok with the copyright going down in flames, which is guaranteed, the first time someone challenges it for improper subject matter.
And if you want to persist in your delusion that the works for hire statute isn’t about ownership, and also that it somehow magically turns a nonhuman author into a human one, well, you be you.
As between the two of us, I am the one here who has already embarrassed himself by commenting before I had read the judgment memorandum. I will cheerfully concede, therefore, that folks should probably give more weight to your conclusions, surmises, and suggestions on this subject than to my own.
Nevertheless, I suppose I still do have a few more thoughts (worth no more than you paid for them) to offer in response to your points.
It’s not a stretch, it’s frivolous and eminently sanctionable.
Suppose that we could button-hole the Congress that passed this particular version of §201(b) and ask them “what were you hoping to accomplish here?”. Do you think that the answer would be something to the effect of “we were trying to ensure that a copyright registration will never be granted where there is not an identifiable human author”? That seems unlikely to me. It seems much more likely that the goal here was to ensure that the benefits of the copyright accrue to the party that laid out the capital to generate the work. If so, then stretching “work for hire” to read on circumstances in which an AI counts as the “employee” is a stretch—to be sure—but not so strained as to be “frivolous” or “sanctionable.” It actually comports well with the statutory intent, even if it requires a very broad construction of one of the words in the statutory text.
[T]he copyright… is guaranteed [to go down in flames] the first time someone challenges it for improper subject matter.
Naturally, I cannot cite a precedent that proves you wrong or right. I confess that the outcome does not seem nearly so foreordained to me.
[I]f you want to persist in your delusion that the works for hire statute… somehow magically turns a nonhuman author into a human one, well, you be you.
My contention is definitely not that §201(b) turns a non-human into a human. My point is that although everyone agrees that Walt Disney Corp. is a legal person, no one thinks that Walt Disney Corp. is a human person, and yet §201(b) permits Walt Disney Corp. to be an “Author.” Therefore, it follows that one does not have to be a human person to be an Author under U.S. law.
Nowadays, most think of corporations as being a nexus of contracts, not a legal person. See citizens United
“It’s not a stretch, it’s frivolous and eminently sanctionable.”
I am going to have to agree with Greg here, kotodama.
Drawing an argument to the non-human designation of ‘author’ FOR WHATEVER PURPOSE, is still enabling law to allow ‘author’ to be non-human, and that is a direct contradiction to the holding by this judge.
I do believe however, that a humanmust be the actual author (and this comes from the Lockean nature of the Constitutional clause itself – something that Greg most definitely does not believe in).
That being said, I also think that it would be an easy enough fix for Congress to rephrase the offensive words, and instead make it such that while author must be human, there may be a transfer-of-right FROM author to non-human entity, and that the right may be processed by the non-human entity as if that entity were the author.
After all, that same Constitutional clause for both copyright and patent had as one of its foundations the notion that the right obtained was to be fully alienable.
Yes, folks, in Billy’s world your hamster can own a patent, just as the Framers intended.
My gob what a fn I D I O T.
Did you bother — at all — to read what I wrote?
Or did you see “anon,” and go into your emotional conniptions?
being considered the author for some purpose or other doesn’t mean that the actual author changed derpa herpa. Tis still a human.
Yes 6 – but see above, vis a vis the fully alienable nature of the right.
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