The courts just take issue with him naming his AI system as the sole author and himself as the copyright owner.
If you just copyright it normally with yourself as the author, seems like it would be fine to copyright whatever bs you want?
[0]: https://www.federalregister.gov/d/2023-05321/page-16193
So it's not the case, contrary to what many people (including me!) have said before, that the decision was "works produced by AI tools cannot be copyrighted". Rather, it's "you cannot assert that the AI tool itself is the author, you must assert that a human is the author". And the amount of work put into the prompt will definitely matter.
In other words, if you just prompt “draw a picture of a cat” then it’s possible you didn’t put enough work into the image to count as the author. But if you have a specific picture in mind that you want to create, and you prompt “draw a picture of a two-year-old cat with orange fur and orange eyes, in a sitting position, looking out of the window of a train. The interior of the train is lit with dim orange lighting. Outside, it is night and there is a full moon visible through the train window,” and then you refine that prompt until the AI produces an image close enough to what you had in your mind’s eye, then that image is clearly your own creation: the AI tool was just the tool you used to take the idea in your head and turn it into an image that other people could look at. Whether you use a paintbrush, a digital-art creation tool like Krita, or a digital-art creation tool like Midjourney, as long as you came up with the concept and did the necessary work to make the tool produce the image, then you're the author and you can assert copyright. (Note that this paragraph is my own opinion, not the judge's ruling, but I think it's a pretty defensible opinion: "draw a picture of a cat" might not be specific enough to assert that you created the resulting image, but "draw this very specific picture that I have in mind" is specific enough).
That's not really clear; the Copyright Office has guidance on copyright with AI used as a tool (which both complicated and lacks clear, objective standards), but its not at all clear how the courts would view it (I think there have been some trial court cases over it already, but I am not aware of any appellate law).
What is clear is that this case doesn't address that issue at all.
I mean, I guess lying is something you could do.
I think that this means that a single prompt alone does not convey copyright. But if you had spent many hours before the prompt fine tuning the model, or much effort after the prompt shaping the result with further prompts, it could be.
I disagree with this approach because I've seen how much creativity and effort some people can put into slowly evolving a single elaborate prompt. AI can be used as another kind of brush. A prompt can be a masterpiece.
Initialize an algorithm to point your camera at the street and describe those bytes in words and you are no longer the author a perpetual stream of data.
In a world where slapping an overlay of someone looking incredulous over someone else's video is considered "adding substantive commentary" by every major video sharing platform, I don't even try to understand copyright law at all. It is way over my head.
What if I use Photoshop and context-aware fill a cloud in? Is that AI-generated or human-generated art?
So if you start with something you truly made, it would be difficult to use so much context aware fill to negate that.
If you start with something AI generated,at what point does it become copywritable? This is less clear.
But that's fine, because the decision does not torpedo anyone's existing Photoshop workflows.
like most things copyright there is a gray area there
but in most cases it's either pretty clear and courts would most likely rule in your (copyright holder) if you somehow manage to hit the perfect middle of the gray area
through if you tell the court "the author is my AI" (like in this case), the outcome is pretty obvious
also for better understanding using AI doesn't erase copyright, it just doesn't add it. So if you image was copyrightable before you used an AI tool to change it will stay copyrightable (as long as the original image is still in there to a reasonable degree).
This also raises the meta question: how much does an image need to change to acquire a new copyright? For example, if you change the Last Supper to include two fat Jesuses on either side of the single skinny Jesus, is that enough?
Companies responsible for several billion dollars worth of software written over the past ~36 months would really like to know the answer to that one.
So the ruling doesn't necessarily endorse the Copyright Office's analysis referenced in the article (https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...), and I think that analysis is just not correct. They describe a creator of AI art as simply "re-rolling the dice" when they try different prompts, but that's not correct, clever prompt engineering definitely allows you to "constrain or channel the program’s processing of the sourcenmaterial" and "alter[] the degree of control over the process"
Through this isn't true for AI assisted art.
And the gray area is very wide and very legal unclear (gray area between human art with AI assistance (e.g. "AI"/transformer architecture based line smoothing or color calibration) and AI art with human touch added to it).
The way I think of it is this: typical art creation starts from a blank canvas and the artist adds layer upon layer of what you want. Eventually something coherent (to the artist at least) pops out.
AI art starts from a canvas which is filled, and the artist changes the filled canvas to meet their perspective. It’s like those projects where people take a vintage painting and add Pokémon to it. Mostly the people I see using AI art are traditional artists who view it as a new medium in their process, very few “generate” and call it a day.
It's like the advent of photography after painting. It was dismissed as an art form for a long time:
- https://antique-photography.com/when-was-photography-conside...
- https://medium.com/@aaronhertzmann/how-photography-became-an... (from 2018!)
Similarly, right now AI art is widely dismissed as "just prompts." But having tried many times to generate images via prompts, it's very hard to get what's in my head to show up in the result. I ended up spending much more time editing the images than creating them... but, I could do that with much simpler tools, without learning advanced tools like Photoshop.
In a couple of instances though, the AI has blown me away by generating something that better captured what I wanted to convey! I suspect the trick is in beng very detailed in where I was coming from and the emotions I wanted to engender.
I predict appreciation of AI art will shift to overall imagination, taste, and appreciation of technical nuances noticeable only to those "skilled in the art", such as prompting techniques and the quirks of the model used. I even suspect there will be genres of AI art using weaker models (kind of like photographs with Polaroid cameras.)
It doesn't even promote the progress of science and useful arts anymore, and in fact when mixed with our current form of capitalism, it hinders it.
so a AI based transformation of a copyrighted input is as much a potential copyright violation as a non AI based transformation.
It's just that the human transformation can by potentially itself be seen as art, so if you have a license or fair use you now can have copyright on the transformed peace (with some limitations (1)). And if the transformation is done by AI you won't (but the original authors "partial" copyright on the outcome is still there).
(1): Like if you (human) "transform" a peace of art in 1000 different ways each keeping 0.001% of the original you will likely get 1000x copyright. But if you then use this 1000 peaces you have copyright too to regenerate the original you still have full copyright infringement. In general the law doesn't care about your "trickery" trying to bend laws.
If you are "anti-AI" and you’ve never changed or evolved your argument - I suggest a pause, a step back and a substantial revaluation.
Some of these comments in this thread - have me wondering if they have actually interacted with an AI.
You are not correct on "principle" - this isn't a moral thing, if you have taken an ethical position - its bc you dont have a functional understanding of how to make it function.
If you were functionally interacting with AI, you would have a more substantial postion, with actual criticism that would have value.
I'm reading a lot of sloppy- written by people, about AI slop.
If I take your AI-generated code file and write it as an artsy-looking image, do I get to deny you copyright?
Personally I hope it's not. To me, this is the best outcome for AI in general. If we are going to violate everyone's copyright training AIs, then it's only fair you don't get AI protection on the output.
It is, and if you did what the actor in this case did with code (tried to register a copyright on a piece of code disclaiming any human authorship and claiming an AI tool as the sole author) it would also not be copyrightable.
This case does not actually address what people are actually mostly interested in with copyrightability of works made by humans with the assistance of AI tools, where the human running the tool is claiming authorship, because that was not what happened that was being fought over here.
so yes it applies to fully AI-generated code as much as to "AI art".
like with AI assisted art it doesn't apply to AI assisted coding
and yes if everything is fully AI generate there is no copyright anymore, that is by design!
Copyright is there to protect human creativity/time investment. If there is no creativity/time investment, then there is no reason for copyright to exist either. Having still copyright there would mean moving it from a law to protect creative work to a law to protect the privileged few which can afford to just mass generate "everything" with AI. That isn't just very undesirable, it's kinda plain evil, as it would mean screwing over the majority of humanity.
Naturally as mentioned that only applies to full AI products, not to AI assisted products in which case the "human contribution" and thinks resulting from it still have copyright.
But the pure output of a generative model cannot be copyrighted, regardless of how complex the prompt is (note that the prompt itself could be copyrighted).
If that’s how the court interpreted it, then the software industry is hosed, since that’d mean none of the generated code running in production right now is under any sort of copyright or otherwise protection, lol.
Let’s say I use an AI prompt to generate an image with 24-bit color, and then I manually change the RGB value of a single pixel from (255,255,255) to (254,255,255).
Does that constitute a modification and would then allow the image to be copyrighted? If not, where is the line?
What's the threshold? Can the person just slap an LUT on an SDXL image in Photoshop and call it a day?
So the true Renaissance artists are the Medicis and the RC church?
> how much creativity and effort
So art is art prompting, or is it creativity and effort? If some toddler spends two hours on a drawing, it's a masterpiece?
> AI can be used as another kind of brush.
A simile does not a truth make.
Actual creators understand what creativity is and what creation is - not all creation even is creative, as its really more of a process, than it is a singular output, and there are monotonous, time consuming, meticulously frustrating parts of the process of creation.
If you want to limit yourself to creation without the quality of life enhancements, that exist in this time and space - you do you.
Don't proselytize tho - you are not doing what you think you are.
A work doesn't have to be a masterpiece to obtain a copyright so what difference does it make? The point of copyright isn't to subjectively critique art.
Then copywrite the prompt, that's always been allowed. Should be just as good if that's the true masterpiece.
Or, as I think we all know, it's not. It's merely a commission, the product is the output. Not the prompt.
I don't think that word means what you think it means.
You have an extremely low bar for calling something a masterpiece.
A prompt can be clever, insightful, unique, and even uniquely productive.
But it is nowhere near the level of decades-deep skill and creative inspiration required to create art anything worthy of the label "masterpiece".
>>AI can be used as another kind of brush
Perhaps that is a valid analogy, but we do not give copyrights to brushes, no matter how much cost or effort was required to make the brush. The brush is not the only tool required to make the art. To continue the analogy, the artist must also select and mount the canvas, mix and color each shade of paint, build up the base layers, and on and on and on...
It doesn't matter if your "brush" is a five hundred billion dollar machine and you spend six months whispering to it to find just the right incantation to generate your file of pixels — SCOTUS is right, you have not make art to which you can claim a copyright.
And the starving student artist in their garage mixing their paints and using the dollar-store brush did make art worthy of a copyright claim.
Absolute nonsense. A work of art is made of semantic stratification, experience, thought process. A prompt lacks all that. AI art can be a tool, but this sentence is a good reminder that on average it’s worth shit all.
Sorry, but... cringe. If we are calling prompts "masterpieces" now - letting alone the image generated by it - maybe we don't deserve art at all.
What a joke. No, AI is not a brush, it is a slop machine that spits out derivatives of the actual masters. If you go back and forth with a human artist about a commission where you keep nitpicking and wanting adjustments, does that make you the artist? No, it makes you the “ideas guy”
A brief history of art in general.
Meanwhile, random person, gets the exact same AI that you used to create literal DaVinci'esque, visibly masterpiece inspired - maybe not "masterpiece" but "masterpiece adjacent" - thats apparently, its not perfect art, but it could have been created in a workshop...
You can't do that. Rather, you cant nake the AI do that.
What is the difference between you and the random person with artworks in the style of the old masters? What do we call that gap?
Isn't that gap normally stuff like talent, ability, skill, knowledge?
All arguments made in this vein are just people whining about their personal lack of ability, as if its a machines fault.
Everything else in the entire system is just bits of monster and building falling randomly. We know if we put the whole population under strict scrutiny ("laser eyes" + "lightning wings"), it would kill every last one of them; every teenager is theoretically criminally liable for the GDP of the Milky Way, a series of violations beginning with a performance of The Birthday Song at their first cake day. Even hiring the cheapest defense lawyer would bankrupt nearly any family in the nation. So we try imperfectly to dodge copyright, hopefully by a couple zip codes, and live in a state of nature on the ground.
it really isn't, you actually have to provide enough relevant commentary for it to be transformative
it just looks like that because
- not every claim leads to a take down, more common is that the advertisement revenue is redirected to the owner of the original video. That is very very common, especially on YT, but not really visible as viewer.
- there are enough copyright holders which overall tolerate reactions, even if they don't fall under fair use.
- Sometimes people claim it doesn't fall under fair use when they don't like how the reaction is done, but that doesn't mean it wouldn't be ruled fair uses if it came in front of court.
- Sometimes people reacting have explicit permission from the original author to do so, no matter if it counts as fair use or not.
and maybe most relevant here, pretty much all large platforms have a tendency to favor the person claiming the copyright violation over the person which reacted to it. To a point there is is sometimes a big problem if systematically abused with false claims.
In reality, it is way more complex and less clear-cut. Which makes sense, because oversimplifying it will lead to silly-sounding conclusions and an almost entirely incorrect understanding of how this works.
For those who don’t want to read the actual full explanation (which is a totally normal position, as the explanation is going fairly into the weeds), I will just a put a TLDR summary at the end. I suggest everyone to check out that summary first, and then come back here if there is interest in a more detailed explanation.
----------------------------
First, we gotta settle on 3 key concepts (among many) the US copyright law relies on.
1. Human authorship - self-explanatory; you cannot assign authorship to a fish or your smartphone.
2. Original/minimal creativity - some creative choices, not just "I pressed the button."
3. Fixation - the content needs to be recorded on a tangible medium; you cannot copyright a "mood" or a thought, since those aren’t tangible media.
Now onto your hypothetical scenarios:
1) "Initialize an algorithm to point your camera at the street and write those bytes to disk and you are the author of a perpetual stream of data."
Writing bytes to disk satisfies fixation, but it doesn’t automatically make you the author of a copyrightable work. You gotta satisfy the minimum creativity requirement too (e.g., camera positioning, setup, any other creative choices/actions, etc.). Otherwise you are just running a fully automated security cam feed with zero human input, and those videos aren’t easily copyrightable (if at all). You might own copyright in a video work if there’s sufficient human creative authorship - but mere automated recording doesn’t guarantee that.
2) "Initialize an algorithm to point your camera at the street and describe those bytes in words and you are no longer the author a perpetual stream of data."
This is just close to being plainly incorrect. If you (a human) write a textual description, that text is typically copyrightable as a literary work (assuming it’s not purely mechanical like "frame 1: car, frame 2: another car, etc." with no expressive choices). Creating a description doesn’t erase any copyright you may or may not have had in the underlying recording. They’re just different works (audiovisual work vs. text work).
Important to note: neither makes you the author or owner of the underlying "data" of reality, because copyright protects expression, not the underlying facts.
----------------------------
TLDR:
* Recording the street can produce a copyrightable work if there is human authorship and minimal creativity in how the recording is made. Pure automated capture may fail that.
* Describing the street in words is usually a separate, independently copyrightable work (e.g., a text or audio version of those words), but it doesn’t change the status of the underlying recording.
Photo (w/ camera): 1. MET: Human authorship - somebody picked the tools (lens, body) and used them.
2. MET: Creativity - somebody chose a subject, lighting, etc.
3. MET: Fixation - film (or SD card)
Photo (w/ AI): 1. MET: Human authorship - somebody picked the tools (models etc) and used them.
2. MET, maybe?: Creativity - somebody wrote the prompt, provided inputs, etc. (how is this substantially different than my wife taking a random snapshot on her phone?)
3. MET: Written to disk, same as a digital camera.
Patents have the drawback of being expensive and very slow to acquire, but having worked on a bunch, they are uniquely suited to be radically optimized by GenAI.
Also patents are very flawed in practice, but the only real protection that is left. Copyright is meaningless when, as people have done, you can reproduce entire saas products by feeding AI screenshots.
Intellectual Property as a whole has been in need for a revamp for a while now, but it's even more critical in the age of AI.
> Copyright is meaningless when, as people have done, you can reproduce entire saas products by feeding AI screenshots.
What do you mean?
Separately, I think code is more like an invention than a work of art, and should have been subject only to patent laws instead of (and not in addition to!) copyright laws. This doesn't really make much difference now, as AI doesn't (at least in the UK) have personhood for either copyright or patent law: https://www.briffa.com/blog/can-you-obtain-a-patent-for-inve...
> The Supreme Court previously rejected Thaler's request to hear his argument in a separate case involving prototypes for a beverage holder and a light beacon concerning whether AI-generated inventions should be eligible for U.S. patent protection. His patent applications were rejected by the U.S. Patent and Trademark Office on similar grounds.
https://www.reuters.com/legal/government/us-supreme-court-de...
As source code becomes more of a generated artifact of software development the way object code is an artifact of compilation, we might be moving toward a world where secrecy, constant forward motion, and moats become even more of an asset (vs plain IP protection).
I do think what happens in this case is SCOTUS will ultimately rule that AI-built code is copyrightable while art is not. I'm sure there's some rationale thick enough for them.
> And the amount of work put into the prompt will definitely matter.
Where did they say this?
[1] https://law.justia.com/cases/federal/appellate-courts/cadc/2...
... Actually, on double-checking, the lawyer's summary I linked to lets you download a PDF of the original judge's decision (written by Judge Beryl A. Howell). The link you provided is to the appelate court, affirming the original decision (appelate court opinion written by Circuit Judge Millett). So both links are useful.
As for your "Where did they say this?", that sentence (the amount of work will matter) is my summary. The original decision said the following (page 13 of the PDF of Howell's decision):
> The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work... This case, however, is not nearly so complex.
And then there's this from the appelate court decision, on pages 18-19 (italics in original):
> First, the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself. The Copyright Office, in fact, has allowed the registration of works made by human authors who use artificial intelligence. See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (March 16, 2023) (Whether a work made with artificial intelligence is registerable depends “on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”).
So although those words ("the amount of work put into the prompt will definitely matter") do not appear in either decision, the meaning is clear. Whether a work can be copyrighted will depend on unnamed circumstances including how the AI tool was used. The conclusion I draw from that is that "how the tool was used" is going to include "how much detail was specified", i.e. "draw a cat" doesn't make you the author, but "draw this very specific picture of a cat that I have in mind" will. That's my opinion, as I pointed out in the next paragraph — but now you know which parts of the decision(s) I based that opinion on.
The Copyright Office's guidance the court cited said it would not.
If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it 26 For example, when an AI technology receives solely a prompt 27 from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology—not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.[1]
And the Copyright Office rejected a claim 624 iterations of experiment and refining was authorship.[2]
Another court could change this.
> That's my opinion, as I pointed out in the next paragraph
You said the next paragraph was your opinion in the next paragraph.
[1] https://www.copyright.gov/ai/ai_policy_guidance.pdf
[2] https://www.copyright.gov/rulings-filings/review-board/docs/...
There’s a whole other mess of fair rights and attribution but in this case, the ruling actually makes the path clearer for an author of such a piece to get it copyrighted. Ironic. But that’s how case law is supposed to be.
When I started my career it was in graphic design in the late 90s and photoshop was all the rage. There was a similar discussion as you pointed out around copyright and photo-manipulation technique. Who owns the photo? Who owns the piece? Then concept arts “kit bash” with reference photos to paint quickly… again who owns the refs? Who owns the piece? Deviantart had to struggle to figure out how to respect both.
I didn’t have to read too far to understand exactly where the court was going with this and where he could have just turned around with another filing and been gold.
>First, copyright protects original works of authorship, including original photographs. A work is original if it is independently created and is sufficiently creative. Creativity in photography can be found in a variety of ways and reflect the photographer’s artistic choices like the angle and position of subject(s) in the photograph, lighting, and timing.
I find it hard to imagine a photo taken by someone where it couldn't be argued that those elements exist. I guess the photographer would have to explicitly tell the court something like "no, I put no thought into it whatsoever, the camera was hanging off my bag and the shutter button was pressed accidentally". Like, if a human purposefully took a photo, then they have made choices about location, subject, etc. which have some element of "creativity" to them.
I remember there being a somewhat similar case in (I think?) Netherlands a few years ago, but currently can't find it.
It's actually better if we keep re-creating the wheel. Keeps more people employed.
I have an allegiance to humans. I have no allegiance to a computer program. That would be pathetic.
A forger takes skill and creativity to make a copy of an existing work that is so good it cannot be distinguished from the original. By your assertion, the forgery should have its own independent copyright.
With photography, the human determines framing, angle, timing, lens, exposure. The camera just records light from a scene the human selected and composed. Even a random photo reflects where the photographer stood and when they pressed the shutter. The device doesn’t invent the composition.
With AI imagen, the user provides high-level instructions, but the system determines the actual composition, lighting, geometry, textures, etc. The expressive details of the final image are generated by the model, not directly controlled by the user.
That’s why the US copyright laws currently treat them differently. It is less of a "tool vs. tool", and more of whether the human determined the expressive content (or if the system did). Prompting can be creative (in a legal sense), but giving instructions is not the same as controlling the expression.
If I tell a human painter “paint XYZ in an expressionist style,” I don’t become the author of the painting. The painter does, because they determined the expression. And since the painter (in the case of AI imagen) is not a human, then that work usually cannot be copyrighted.
There is an important caveat to all of this: it’s not binary or perfectly clear-cut. If someone iteratively refines prompts, controls seeds, manually inpaints, selects and arranges outputs, heavily edits the result, etc., then those human contributions can be protected. But purely AI-generated output, where the system determines the expressive elements, is not considered human-authored under the current US copyright laws.
Mind you, none of this is perfectly settled, as this is a very rapidly evolving/adapting area of law (as it pertains to AI usage). I am not claiming that this is the end-all of how it should be legislated or that there are no ways to improve it. But the current reasoning within the US copyright law used to address this type of a scenario (at the present moment) doesn't strike me as illogical or unreasonable.
If you outsource the image creation, then throw it on a t-shirt design, or modify it, or do whatever, you can copyright the modified work that you Han a hand in creating, but you still are not the creator of the original.
From who's perspective? Fundamentally, in one situation a human is creating something and in the other situation, no human creates anything.
You generally cannot copyright derivative works as if they are your own, fyi.
It's a simple and quite recent Dutch case (feel free to use AI to translate it :p), where the courts basically said that the plaintiff did not sufficiently motivate why their photo would be copyrighted, especially in light of very similar photos having been made by other people (4.5).
And luckily we have years of research, empirical and otherwise, showing the impact of IP on innovation and the arts. It's a very complex, multi-dimensional topic where outcomes vary depending on a combination of things like industry, subject matter, time frame, level of economic development of the country, strictness of enforcement, and more.
However overall the impact of IP is much more positive than HN would think, largely because the material and discourse that has gotten airtime here is something that aligns more with the "information wants to be free" crowd.
LLMs were created in our image. Hallucination, confabulation, sycophancy, psychopathy, learning, reasoning, and blackmail are all behaviours in LLMs that were first found in humans. All these behaviors are present in human writing and imagery captured in a training set. So to me, there's no surprise that LLMs exhibit these behaviors.
Do I think LLMs are sentient or sapient? I'm in the probably not camp. We don't have a good test for either, but they do illustrate the resistance to acknowledging any other being or creation as having the same capabilities as Homo sapiens.
Interesting world we live in. Soon it'll be faster to one-shot the tiny slice of functionality I need from Adobe CS than to navigate their subscription cancellation obstacle course.
Pretty sure you're already in that world. ;)
People are taking screenshots of existing products and feeding them to AI to reproduce them from scratch. From this site: https://ghuntley.com/real/
> Any product features or platforms that were designed for humans. I know that's going to sound really wild, but understand these days I go window-shopping on SaaS companies' websites for product features, rip a screenshot into Claude Code, and it rebuilds that product feature/platform.
Also this comment where backend code could be reproduced wholesale from the APIs: https://news.ycombinator.com/item?id=47259485
And this whole thread about relicensing AI-rewritten open source projects: https://news.ycombinator.com/item?id=47257803
> Patents aren't going to cover the vast majority of what exists as code because patents only cover inventions and not common every day code.
Agreed, but as we're finding out, everyday code is now cheap enough that there will be questions about how much of it is worth protecting... and, given the unclear stance on AI-generated code, maybe even if it is protectable at all.
Yes, the bar for patents is way too high for every day code, but you can always get one by making the claims narrow enough. I think that will actually serve one of the underlying goals of patents by incentivizing people to build things that are actually novel and non-obvious rather than just a slight variation of another project.
For projects where there is absolutely nothing technically novel (which is rarely true, cf "claims narrow enough") moats could be in hoarding data, network effects, and the like.
Note, I'm not necessarily happy about all this, this is just how I think it could play out absent larger changes to IP laws.
Do you mean deduced instead of reproduced?
>Agreed, but as we're finding out, everyday code is now cheap enough that there will be questions about how much of it is worth protecting... and, given the unclear stance on AI-generated code, maybe even if it is protectable at all.
AI generated code is likely not protectable at all under copyright, but that was expected by anyone who follows this area of the law seriously.
> Yes, the bar for patents is way too high for every day code, but you can always get one by making the claims narrow enough.
Not really, and if you did it would likely not be enforceable because the getting past a §101 motion isn't likely.
>Note, I'm not necessarily happy about all this, this is just how I think it could play out absent larger changes to IP laws.
I'm not sure any of it is a bad thing. Why should AI generated code be protectable under copyright? It can still be protected by trade secret, which seems fairly sufficient for what it ultimately is.
> AI generated code is likely not protectable at all under copyright, but that was expected by anyone who follows this area of the law seriously.
I haven't followed too closely, but the ruling on AI art seems to leave the door open for "significant human creative input" like "editing, arrangement." This leaves room for photography, but can also be covered by "architecture, followed by iterative prompting and potentially manual editing to refine the code", which is still needed for any non-trivial AI-generated code.
I think the situation is not great because the law is too fuzzy and outdated, and could allow for "AI laundering" of copyrighted works, as the relicensing thread suggests, which is especially not great for open source where trade secrets are not an option.
> Not really, and if you did it would likely not be enforceable because the getting past a §101 motion isn't likely.
Not a lawyer, but I've seen tons of such issued patents out there, and many have even been upheld in lawsuits. §101 is often trivially bypassed adding "computer readable media" or some "non-abstract side-effect" language to claims. Like, one pattern of claims is "A method of - algorithm - algorithm - algorithm - show something to the user / write to a DB / transmit a message / etc."
The difference between the "real" video and the "influencer" video is the artistry from the artist(s) involved. (And yes, top influencers often have a person or a team of people involved)
In short, your inability to understand photography doesn't justify the use of AI slop to prompt "give me a grayscale image of a mountain" and assume that it's the same thing as a human being taking an actual photo. They're not even close to the same thing.
They did not write an emotional comment, they were trying to teach you, bc they ascertained that you don't understand art.
They were right.
That is not the prompt I included in my post. The prompt I gave was for taking an the same photo you would be putting into photoshop and using AI to apply grayscale.
But is was only ever so meaningful because as you point out, copyright does not protect functionality.
> I haven't followed too closely, but the ruling on AI art seems to leave the door open for "significant human creative input" like "editing, arrangement." This leaves room for photography, but can also be covered by "architecture, followed by iterative prompting and potentially manual editing to refine the code", which is still needed for any non-trivial AI-generated code.
I don't think this kind of analogizing does anyone any benefits tbh.
>Not a lawyer, but I've seen tons of such issued patents out there, and many have even been upheld in lawsuits. §101 is often trivially bypassed adding "computer readable media" or some "non-abstract side-effect" language to claims. Like, one pattern of claims is "A method of - algorithm - algorithm - algorithm - show something to the user / write to a DB / transmit a message / etc."
I can't agree with this observation, unfortunately.
> I can't agree with this observation, unfortunately.
Interesting, I don't mean to impose, but I'm curious as to how things have changed... could you point to a representative case (maybe eg a patentlyo article) that I could look at?
If a deterministic machine transformation from a copyrightable prompt results in an uncopyrightable image, what do you think a compiler is doing to source code?
a compiler on the other hand is generally pretty deterministic. The non determinism that we see in output is usually non determinism (such as generated dates) in the code that it consumes.
Correct, the jurisprudence there hasn't changed.
If you have a substantial amount of backend code (as with most SaaS projects) you're never actually distributing the code, and copyright is never at play. Computer generated artifacts are already in this boat and are protected by virtue of being trade secrets not by copyright.
This could maybe be true of shipping javascript to the browser, which presumably is not going to qualify as a trande secret, but I don't think that's where most companies derive value.
---
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
---
OTOH, distributing copies created in violation of copyright is a good way to cause legally-cognizable harms to the copyright holder that will increase the potential damage award when you are found liable for copyright infringement, and it also makes it much more likely that someone will notice the infringement in the first place. But its not where the law, on its own terms, begins to apply. Doing any of those without permission (unless it falls into one of the exceptions to copyright protection, like fair use) is a violation of copyright.
Do you mean that a work has to be published prior to registration? What do you mean by "copyright applies to distribution"?
Access to the service is already governed by computer access laws, which don't depend on copyright. And if you never intentionally distributed your code outside of your org, you can call it a trade secret and nobody else has any legitimate right to access it - whether or not it is copyrightable.
There are other things that aren't copyrightable that are trade secrets already. This would be true of any kind of automated data collection for example. You couldn't copyright it but you can call it a trade secret.
And for any of that stuff, if you want to share it and limit distribution, you just have whoever wants access explicitly agree to be bound by contract law.
I'm not saying AI art should or shouldn't be copyrightable. One can argue the inputs into the AI generator are copyrightable, but if the output isn't deterministic translation of the input, its a different argument.
The point isn't that you have to give it to people, but okay?
>Access to the service is already governed by computer access laws, which don't depend on copyright
Yeah, copyright doesn't control everything, and?
>There are other things that aren't copyrightable that are trade secrets already. This would be true of any kind of automated data collection for example. You couldn't copyright it but you can call it a trade secret.
Okay?
>And for any of that stuff, if you want to share it and limit distribution, you just have whoever wants access explicitly agree to be bound by contract law.
Your point being? You're just rambling assumptions about copyright and other things, which don't even track the actual law.
I'm replying to the post that claimed:
> If that’s how the court interpreted it, then the software industry is hosed, since that’d mean none of the generated code running in production right now is under any sort of copyright or otherwise protection, lol.
There is in fact "otherwise protection" for the software industry by... not distributing the code. They don't need copyright over the generated code if they vibe code a SaaS backend. Whether there's copyright or not is irrelevant for the business model.
>There is in fact "otherwise protection" for the software industry by... not distributing the code.
Copyright protects against reverse engineering in some circumstances, for example.
>Whether there's copyright or not is irrelevant for the business model.
Yeah, I'm going to continue to disagree with you as I'm actually a litigator.
"The courts just take issue with him naming his AI system as the sole author and himself as the copyright owner."
you can't claim a non human as the "author" and claim the material is copyrightable.
the "author" (not the AI) was trying to make a legal point/hack and the courts shot him down.
OK, can you explain to me why this is a disaster for a vibe-coded SaaS? Why are computer access and/or contract laws insufficient and why would a vibe-coded backend be a huge risk?
I really don't understand where copyright on the code itself is necessary to protect these business models, and hopefully you can help fill the gaps.
>I really don't understand where copyright on the code itself is necessary to protect these business models, and hopefully you can help fill the gaps.
Well, did you ever try to understand? It's so exhausting coming to these threads when people are just making assumptions about how the law works without any regards to what actually happens, and then suggesting policy changes in response.
Here's a scenario - disgruntled ex-employee leaks the code. Now it's free for anyone to use because there is nothing you can do to stop anyone from using it because you have no rights in the code since the trade secret is broken. You can sue the employee. They are probably judgment proof, wont have a lot of money anyway, and will still not stop a competitor from spinning up the same exact thing.
Trade secret was your suggestion by the way... So do, you actually know how trade secrets work, or you just making things up??
I'm a layman - I read up on the tools that existed and obviously got it wrong, so I really appreciate you filling the gaps.