Copyright Office is restoring copyright to something you have to work to get

pluralistic.net

47 pointsbeardyw28 comments

The article is just restating US copyright law for people who don't know it. The title indicates a recent change in policy, and there hasn't been one.

Now, this is US law. Much of the world does have "sweat of the brow" copyright. But the US does not. See "Feist vs. Rural Telephone". There must be human creativity because the US constitution reads "(Congress shall have the power) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." That limits the power of Congress to change this.

So a lot of things are uncopyrightable in the US. Feist is the big case, and it was about telephone directories. No copyright. Useful objects are not copyrightable, which is why there are third party auto parts. Facts are not copyrightable, nor are databases of facts. Nor are pictures of public domain art. Nor is automotive sheet metal, despite lobbying by automakers.

That's what leads to AI-generated content not being copyrightable. Model weights don't seem to be copyrightable either.

> Useful objects are not copyrightable

It cannot be this clean cut or Google v Oracle would have been trivial to decide.

A telephone directory can be copyright protected, too. The facts within it cannot. Exactly like recipes. A particular presentation of a recipe is absolutely copyright protected. But this doesn’t mean no one can publish the same recipe in their own presentation

I think they're referring to more fundamental things like math, language, etc...

A recipe book can have copyright because it's for the specific combination of recipes, layout, etc... Not for a recipe or more generally a recipe book.

I think that's consistent with his the supreme court ruled in Google v Oracle.

> The CO has taken the (entirely correct) position that copyright law exists to incentivize human acts of creative expression.

The US Constitution grants Congress the power to grant copyrights "to promote the progress of Science and the useful Arts." Creative expression that is not useful therefore is not constitutionally copyrightable.

But that aside, I agree with the author that the Copyright Office refusing to further expand the already vastly over-expanded scope of copyrights is a rare positive ruling.

You have left out the second half of the sentence, "... by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The position taken by the courts and the administration is that "authors and inventors" means "human". The monkey could not be the author of its own selfie photograph, for instance.

Maybe this doesn't reflect the intentions of the Framers, but it certainly should color any modern discussion surrounding the purpose of copyright law.

I also notice it doesn't say anything about their heirs. I wonder if there is a meaningful argument that copyright extending beyond the life of the original author is unconstitutional.

Likewise corporations are not humans, so they shouldn't be able to own copyrights either.

"Useful Arts" is old timey talk for the mechanical trades. Engineering, manufacturing and that kind of thing. It applies to "Inventors" and their "Discoveries," and is the basis of patent law.

There is another clause later tha clarifies it a bit. It does NOT mean that an invention must be useful, and it's pretty clear that purely l utilitarian objects actually can not be copyrighted.

I don't quite get it. Can Pixar copyright its GPU-rendered films or can it only copyright the human-created models?

How will the USPTO draw a legal distinction between AI-generated and GPU-generated?

If you put something that is copyrighted through a mechanical transformation process it has the same copyright. For instance a video of a movie retains the copyright status of the movie (as well as probably being an illegal copy itself) even if you added camera shake and audience coughing sounds. So there's not an issue with things like this.

Well OK, so what if I put my copyrighted prompt through the mechanical transformation process of the AI model?

... then all elements of the prompt that come from your human creativity and that survive into the final result remain under your copyright. Which in most cases should be almost as good as owning the full copyright, although it might influence fair use defenses if even a full copy infringes on only a minor portion of the work.

If your prompt is a novel, it's probably copyright but you don't have copyright over someone else's thing they made using a different novel-length prompt, even if the thing is similar to yours, since they didn't copy the prompt. If your prompt is a sentence, it's probably too minimal to qualify for copyright.

I think the point is to decide where to draw the line. An AI model is a stochastic process, you don't get the same results from the same prompt (even at temperature 0 because the GPU will do multiplications in a different order and errors compound). It's not really the same as a digital compositing pipeline and a lighting engine.

Also you have to account for the PB of training data which consists of copyrighted works that goes into the model and is interpolated to produce the result. Personally this tips the balance to AI output being new work that's not copyrightable for me because otherwise all of the people who own copyright on the training data should have joint copyright of the output too because in a sense all of the training data is part of the prompt too.

Your prompt doesn't really contain all of the decisions that were made in the final output most of the time. When you use a rendering engine it does contain only your decisions and you have a license to use the work of all the people who created the software and other assets you're using to make the film.

> How will the USPTO draw a legal distinction between AI-generated and GPU-generated?

Patents and trademarks are not copyrights. The U.S. Copyright office handles copyrights, the USPTO handles the other two.

In the spirit of your question, though, the concern predates AI.

Programs that you can use a stylus to draw with - in a similar manner as pen/ink and paper - have been around a long time, and are getting better.

Let the definition of human art be human effort put into creating something. If I put "etymology of the word art" into Google I get "The word art comes from the Latin noun ars (meaning practical skill, craft, or work of art)."

If I spend an hour drawing something in a program - strokes in the same exact manner as physical paint and canvas, but digitally adjustable and editable afterward - this is still art. But it's hard to prove that from just the output file alone. It's even worse for 3d model creation - someone who painstakingly molds/creates a 3d model in Blender is definitely doing art, even if there is no physical artifact until it's printed or projected.

Perhaps art programs will need to start authenticating input devices and movement sensors and recording their stream during the artistic process, and including that as part of the output file. This will only be worse if you want to create art but not train AI. The only solution to that is not create digital art.

Makes me think of Worth Enough, by Radoxist[0]. I think he spent about a year on it.

[0] https://www.deviantart.com/radoxist/art/Worth-enough-7324787...

> Basically, we're about to recreate formalities, but managed by the private sector. To the extent that companies use AI in their work, they are going to have to track every pixel and every word and every note that is output by an AI system, and which parts were added or edited by humans after creation.

> That means that companies that want to protect their commercial interests aren't just going to get more protection based on how much work they get humans to do; they're also going to have to treat copyright's government-enforceable monopoly over expressive speech with the gravitas it deserves: not something you get automatically, but something you have to do real administrative work for.

Assuming this happens, wouldn't this mean that copyright becomes significantly less useful for people who aren't corporations and don't have the legal, financial, and administrative resources to produce this kind of bookkeeping?

I’m surprised that Doctorow has such a poor understanding of US copyright law. “Sweat of the brow” does not exist here. It is not “fundamental to a correct legal understanding of copyright.” You can argue it should be, but it isn’t. All that matters is human authorship, and LLMs aren’t humans.

Which is exactly what the article explains through the 10 year compilation effort Vs the 10 second haiku.

I'm confused by the framing that copyright protecting creative expression and not hard work is something that would come as a shock to media bosses. If you're in the business of buying up creative stories and paying for the hard work necessary to sell them to a large audience, then being able to automate the expensive part is good news. Imagine film credits listing just the director, screen writer and some assistants, with everyone whose job was never primarily about making creative decisions being eliminated.

> The simplest, most reliable way to ensure the works you invest in are fully and entirely eligible for copyright is to just use humans for the whole project. Declare a "no-AI policy," and hire human artists to produce the works you hope to sell. Monitor their activity to ensure they're not using AI. Keep good records.

That seems true.

But also: generate all you like and then have humans edit, and keep a record of it, seems plausibly defensible too.

The current state of a lot of AI generated content material, not all / not necessarily program code, seems to really benefit from human editing.

Thinking of all the media execs, crying, because their plans to fire all their creatives, and replace them with slophaus tech, are rendered null and void, from this.

I'm having a real hard time, feeling sorry for them.

  For media bosses, copyright is a pseudo-property† right

...it's not "pseudo". What does the author think "IP" stands for?

Regardless, 'I agree with these people I always disagree with are somehow right this time despite acting like they always do' should be a sign that some reflection is needed!

I guess “pseudo” based on an understanding of “ownership” that works only for physical objects; not for 1:1 replicas and not for “mind stuff”. You cannot “own” a thought. It’s difficult to own an earthworm, unless you keep it in a confined container. Once it slips out, you lose ownership.

Based on that perspective, intellectual property is a construct, an illusion, newspeak, and thus “pseudo”.

  > AI slop isn't copyrightable, but there can be copyrightable elements in an AI-generated image. The most obvious element is the prompt. So long as your prompt contains some quantum of creativity (e.g. "Make me a beautiful flower whose loveliness is reminiscent of a newborn baby", but not "make me a beautiful flower"), that prompt is copyrightable. That means you can use copyright to challenge others' rights to present the same prompt to a chatbot. But while the prompt can be copyrighted, the image it gives rise to isn't. So you can spend a month iteratively refining your prompt, consuming all your town's water along with 200,000 gallons of diesel and that prompt will be yours for your life plus 70 years, but the image it generates is in the public domain, and anyone can copy it, sell it or give it away

I don't find this line of thought very convincing. The more detailed the prompt is, the more control the author exercises over the result. A sufficiently detailed prompt may become indistingushable from source code, because it specifies the desired result so precisely that it acts like source code for a compiler. Compilers, too, are not necessarily deterministic. Compilers may have a lot of freedom in how they translate the source code into machine instructions, but this does not break the connection with the original human intellectual effort and the result remains copyrightable.

There should be a difference between asking AI to "draw a funny picture of a donkey", and spending a month iteratively refining your prompt.

How does this mesh with this, where the court decided to declare AIs as authors and originators of copyright, just to make sure billionaire companies like Microsoft avoid liability to programmers they copied from?

https://www.courthousenews.com/coders-lose-appeal-in-copyrig...

Obviously courts will cheat, or should I say "keep cheating", until the output of AI models is covered by copyright while the input is not, because if AI output isn't covered, then most tech companies have nothing of value in their entire AI investment. Anything to cheat individuals out of their rights into the deep pockets of billionaire companies.

Courts aren't forced to make decisions consistent with other courts and other decisions. It's entirely possible that one case says an AI was an author and another case says AIs can't be authors.

The court in that case didn't rule on AI authorship at all.

"The coders describe an AI tool that doesn’t look up and reproduce stored work, U.S. Circuit Judge Eric Miller determined, but rather creates new work. That new work, the Donald Trump appointee said, may or may not infringe plaintiffs’ copyrights in their code, but it cannot reasonably be described as a copy of that code from which the copyright management information has been removed or altered."

Reply on news.ycombinator.com