There's No "A.I." in "Cui Bono"

Unless you are a creator, you probably don’t think much about copyrights. But The New York Times got my immediate attention with Cecilia Kang’s article The Sleepy Copyright Office in the Middle of a High-Stakes Clash Over A.I.. There are many fronts where A.I.’s rapid development are exposing how our legal and regulatory structures have not caught up – I need only point to the Taylor Swift deepfake porn mess – but copyright law has to be at or near the top of the list.

Right now, that's wishful thinking. Credit: Bing Image Creator

This is crucial, because, as Fred Havemeyer, an analyst at the financial research firm Macquarie told The New York Times in a different article: “Copyright will be one of the key points that shapes the generative A.I. industry.” Technology lawyer and podcaster Denise Howell told Axios: "Copyright is incredibly broad and all-encompassing. We're in the wild west days of this, as far as how it's going to shake out legally."

It’s important to note that, as of now, only humans can obtain copyrights, as affirmed by a federal court last summer and by a Copyright Office ruling earlier last year. But the Copyright Office recognizes that times are changing and has initiated a more formal review of AI and copyright.

Credit: U.S. Copyright Office

“The attention on A.I. is intense,” Shira Perlmutter, director of the U.S. Copyright Office, told Ms. Kang. “The current generative A.I. systems raise a lot of complicated copyright issues — some have called them existential — that really require us to start grappling with fundamental questions about the nature and value of human creativity.”

The Office has received thousands of public comments about that review, which is a highly unusual response. “We are now finding ourselves the subject of a lot of attention from the broader general public, so it is a very exciting and challenging time,” Ms. Perlmutter diplomatically acknowledged.  

“What the Copyright Office is doing is a big deal because there are important principles of law and lots and lots of money involved,” Rebecca Tushnet, a professor of copyright and intellectual property law at Harvard Law School, told Ms. Kang. “At the end of the day, the issue is not whether these models will exist. It’s who will get paid.”

I.e., cui bono.

"Copyright owners have been lining up to take whacks at generative AI like a giant piñata woven out of their works. 2024 is likely to be the year we find out whether there is money inside," James Grimmelmann, professor of digital and information law at Cornell, told Axios. "Every time a new technology comes out that makes copying or creation easier, there's a struggle over how to apply copyright law to it.”

And how to profit from it.

The Wall Street Journal asked its readers to weigh in on the topic, and here is a small sampling of the responses:

• “Only humans should be granted copyrights. AI should be held responsible if it violates copyright protections during any of its operations.”
• “Copyright is needed in an environment where it is difficult to generate an original, and easy to generate a copy…That is, until today, when imitating a style or combining several styles is as easy as running a copy machine. Therefore I expect copyright to be replaced by another law, which will also consider the copying of style.”
• “I think those whose material the AI was trained on should own the input. They exclusively created it. But the output—the finished product enhanced by AI—should be copyrighted by the person who deployed the AI.”
• “If the AI is not sentient, then copyright should attach to the person who worked with the AI (even if it was just a request to create or think about an item). If AI becomes sentient, then copyright should belong to the AI—since it would be a separate, self-aware intelligence.”
• “If a work is created by AI, it should be protected by copyright, but in a clearly defined category.”

Obviously, there’s not quite agreement about exactly what A.I. does – it is creating, copying, or reshuffling?’ – or who should benefit, how.

Still wishful thinking. Credit: Bing Image Creator

One of the provocateurs in this area has been Stephen Thaler and The Artificial Inventor Project, which has initiated a “series of pro bono legal test cases seeking intellectual property rights for AI-generated output in the absence of a traditional human inventor or author,” with the intent “to promote dialogue about the social, economic, and legal impact of frontier technologies such as AI and to generate stakeholder guidance on the protectability of AI-generated output.”

I previously wrote about Dr. Thaler’s efforts to obtain patents for inventions created by his A.I. system DABUS, none of which has yet been successful. He keeps trying though, with both patents and copyrights. Just last week he asked a federal appeals court to reverse the Copyright Office’s ruling that human authorship is required for a copyright. He told the court: “nothing in the Copyright Act requires human creation…What the Act's language indicates is that when an entity — a natural person, a corporation, a machine — generates a creative work, that entity is the author."

I wish him luck, but I wouldn’t bet on the court ruling in his favor just yet.  It’s all going to get sorted out eventually – by the courts, by Congress, by the market – but probably not until the proverbial horse has long left the barn.

Louis Menand, writing in The New Yorker, asks the provocative question Is A.I. the Death of I.P.?  His conclusion:

Whatever happens, the existential threats of A.I. will not be addressed by copyright law. What we’re looking at right now is a struggle over money. Licensing agreements, copyright protections, employment contracts—it’s all going to result in a fantastically complex regulatory regime in which the legal fiction of information “ownership” gives some parties a bigger piece of the action than other parties. Life in an A.I. world will be very good for lawyers. Unless, of course, they are replaced with machines.

I.e., it’s not about A.I. or even “creating;” it’s always about the money. Cui bono?

The key question is whether A.I. is actually creating, or is just a tool used by humans in      creating. As one WSJ reader put it: “Again, the owner of the “David” sculpture is not the guy who made the chisel and hammer.” I think we’re still in a fuzzy area, but I also firmly believe A.I. will create. It will write, it will make art, it will invent, and it will come up with novel solutions to problems.

And, one way or another, it will get paid.