Are Copyright Battles Against AI Destined to Fail?

0:00Today on the AI Breakdown, we're exploring three essays that offer different arguments about AI and copyright. The AI Breakdown is a daily podcast and video about the most important news and discussions in AI. Go to breakdown.network for more information about our Discord, our YouTube channel, and our newsletter.

0:24Hello, friends. Welcome back to another lovely fall weekend. It is Long Reads time, and today we're actually combining a set of different reads into a larger discussion. Now, this week, of course, one of the big themes has been AI copyright and creativity. Of course, we are just coming off of the writer's strike where a tentative agreement has been reached. And underlying that are, of course, questions of creativity and rights in this new AI era. So let's dig into a set of opinion pieces all about that. And the first one is by John Villasenor, and it was written in Scientific American. The piece is called, Does the First Amendment Confer a Right to Compute?

1:06The future of AI may depend on it. John begins, Since late 2022, visitors to New York's Museum of Modern Art have been mesmerized by Rafiq Ganadol's 24-by-24-foot artificial intelligence-generated artwork, Unsupervised. It's a stunning work to contemplate, and all the more so given the realization that artists have just begun to scratch the surface on ways to use AI in their work. Unsupervised also backdrops some of the complexities raised by calls to regulate AI through government-imposed limits. Simply put, under what circumstances is there a First Amendment right to compute? We will soon need an answer.

1:39The First Amendment provides that Congress shall make no law abridging the freedom of speech. The word speech encompasses not only literal speech, but also a broad range of expressive activities that can include painting, photography, and music and dramatic works. When regulating expression, the government has more latitude to enact content-neutral laws than laws that target specific content. For instance, while performing live music is expressive, a city noise ordinance that regulates the volume of outdoor amplified music does not violate the First Amendment. By contrast, a city ordinance regulating the volume of outdoor amplified music of only one particular genre would be unconstitutional.

2:14Villasenor then points out that federal appeals courts have considered First Amendment aspects of computer code in only a handful of cases so far. The question of when computer code is expressive is related to, but distinct from, asking whether the purpose of performing the resulting computation is expressive. As Anadol's unsupervised makes clear, computation can be used for expressive purposes. But what about the AI algorithm steering driverless cars? While there can be an expressive aspect to writing the software for driverless cars, when the software is run, the computations and the resulting decisions involved in navigating a vehicle through city streets are purely functional rather than expressive.

2:47Therefore, laws addressing the operation of driverless cars do not implicate the First Amendment. Villasenor then goes on to contemplate what would happen if the government were to prohibit training of AI models beyond a certain size. He asks, would a government-imposed limit on AI computations implicate the First Amendment? Proponents would assert that it would not, underscoring that the regulation would target computation, not expression. They would argue that using large, compute-intensive AI models does not necessarily involve expressive activity, and that any impact on artists and others whose expression might be limited by the regulation would only be incidental.

3:19But, he writes, there is also a counter-argument. The most compelling recent developments in AI involved generative AI. These systems commonly produced expressive content, often images and writing, as underscored by the multiple ongoing copyright lawsuits regarding the role of human-generated training data underpinning generative AI systems. The robust debate regarding who should have rights to the images and other works produced by generative AI is itself evidence that those works have expressive value. An emerging generation of artists, composers, and members of the broader public will use AI in extraordinarily innovative and creative ways.

3:49They could argue that government regulation limiting AI computation would have an impact on expression that is far more than incidental. Villasenor sums up, the stunning recent advances in AI mean that computation and expression are increasingly overlapping in novel and rapidly evolving ways. The question, is there a First Amendment right to compute, might have seemed largely theoretical in the recent past. Today, it is one of many questions regarding AI that need answering. Now, just for a little bit of background, Villasenor is a professor of law and electrical engineering at UCLA and is a fellow at the Brookings Institution as well.

4:21Next up, we excerpt a piece from Timothy B. Lee, a journalist at Ars Technica called, The Copyright Office is Making a Mistake on AI-Generated Art. And just from that title alone, you probably see the connection to the last piece. Timothy writes, Two weeks ago, the U.S. Copyright Office refused to register a copyright for Theater of the Spatial Opera, an AI-generated image that got widespread media attention last year after it won an art competition. It's at least the third time the Copyright Office has ruled that AI-generated art cannot be copyrighted. The Copyright Office first ruled on this issue in 2019.

4:52Artist Stephen Thaler tried to register an image that he said had been created entirely by a computer program. The Copyright Office rejected the application because copyright protection is only available for works created by human beings. The ruling raised an important question. Was the issue just that Thaler should have listed himself rather than his AI system as the image's creator? Or is AI-generated art categorically excluded from copyright protection? Lee points out that recent decisions seem to suggest that it's the latter, and he says, I don't think these more recent decisions are going to age well.

5:22In fact, says Cornell University copyright scholar James Grimmelman, quote, I don't see this approach being scalable. It seems like a quagmire. Now from there, Lee gets into a lesson from the history of photography. In the 1880s, these same questions of copyright law were being applied to the then new technology of photography. A photographer took a photo of Oscar Wilde and later would sue a company that republished it without his permission. That case went all the way to the Supreme Court, which ruled in 1884. Writes Lee, the nation's highest court acknowledged that ordinary photographs may not merit copyright protection because they may be a mere mechanical reproduction of some scene.

5:58By contrast, the court said that the Wilde photo reflected the photographer's original mental conception, which he had brought to life by, quote, posing Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression. Basically, even though it was a mechanical process capturing the image, there were creative choices by the photographer that made it deserve copyright protection. Now, Lee argues that there are two different ways to read this ruling in its use today.

6:31He writes, The Copyright Office concluded that using AI to generate art was a merely mechanical process with no place for novelty, invention, or originality, and hence not worthy of copyright protection. But I don't think this makes sense given how copyright law has treated photographs over the last 130 years. After all, if you read the Sourney ruling, literally, it suggests that many photographs shouldn't get copyright protection. Landscape photographers, for example, don't decide the position of the sun, the shape of the clouds, or the color of the trees. Yet, landscape photos can be copyrighted.

6:59Lee writes, in my view, the copyright office should think about AI-generated art in the same way. Just as a photographer walks around a city or forest looking for compelling scenes to photograph, So an AI artist explores the latent space of images a tool like MidJourney can produce. In a literal pixel-by-pixel sense, images are produced by the software, not the artist. But the important point is that there is a human being making creative judgments about where to explore and what images to capture when they get there. Jason Allen, the artist who created the Theater of Spatial Opera, experimented with 624 different prompts as he explored MidJourney's latent space in search of the perfect image.

7:35Strangely, the Copyright Office seems to hold this against Allen in its decision. In their decision, they wrote, It is the office's understanding that because MidJourney does not treat text prompts as direct instructions, users may need to attempt hundreds of iterations before landing upon an image they find satisfactory. This appears to be the case for Mr. Allen, who experimented with over 600 prompts before he selected and cropped out one acceptable panel of four potential images, after hundreds were previously generated. As the office described in its March Guidance, when an AI technology receives solely a prompt 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.

8:12Lee continues, This might make sense if you assume that these 600 prompts were completely random. But of course, Alan's prompts weren't random. The result of each prompt can provide inspiration for the next one, allowing the artist to refine his creative vision over time. Still, the nut of this for Lee comes down to the section header of the last part of the essay, Banning AI copyrights will be unworkable. He writes, Imagine if the Copyright Office started taking the Serenity precedent literally and began denying copyright registration for photos it judged insufficiently creative. The result would be a massive paperwork burden for professional photographers and the copyright office.

8:45Photographers would have to submit detailed descriptions of how they staged the scenes they photographed. Did the model bring their own clothes or were they supplied by the photographer? How much time did the photographer spend setting up the background and the lighting? Did the photographer suggest poses and expressions for the model or did the model come up with them independently? This would be a waste of time for everyone involved and the same is true for AI-generated art. When a human artist creates a partially AI-generated work, the Copyright Office wants the artist to disclose this fact in their registration and disclaim ownership over the AI-generated portion.

9:12The Office claims that this will be a simple procedure, that the application can include a simple statement like description of content generated by artificial intelligence. Supposedly, if an artist disclaims ownership over the AI-generated portions of her work, they can still get copyright protection for the human-created portions. But there are a couple of big problems with this. One is that there's no clear definition of artificial intelligence. For example, Photoshop includes a growing number of features that could be characterized as AI-based. Will artists need to disclaim copyright if they use some of these tools?

9:40It's unclear and could take years of litigation to sort out. The Copyright Office's rule will also create an incentive for digital artists to lie about how their work is created, which in turn will put all digital artwork under suspicion. If artists want their work to stand up in court, they may need to start carefully documenting their creative process so they can prove that their work was made without AI. Most importantly, the Copyright Office's rule could pointlessly discourage artists from using AI in their creative process. If AI-created work can't be copyrighted, artists will be financially incentivized to stick to older techniques, potentially depriving the world of creative works that can only be created with the latest technology.

10:13A better path would be for the Copyright Office to take the same approach to AI that it does for photography. To recognize that AI-generated works can be the result of human creativity even if, in a literal pixel-by-pixel sense, they are generated by a machine. Now I think the great irony that Tim captures here in the last part of this piece, is that the very purpose of copyright protection in modern society is to incentivize people to create things. As he points out, the way that things are headed, this will discourage them from using an entire category of creative opportunities, which sort of seems like the opposite of the point.

10:44Last up, we have an essay by author Ian Bogost, published in The Atlantic, called My Books Were Used to Train Meta's Generative AI. Good. I could have my next one, too. Ian writes, When The Atlantic revealed last month that tens of thousands of books published in the last 20 years had been used without permission to train Meta's AI language model, well-known authors were outraged, calling it a smoking gun for megacorporate misbehavior. Now that the magazine has put out a searchable database of affected books, the outrage is redoubled. Wrote the novelist Lauren Groff, I would have never consented for Meta to train AI on any of my books, let alone five of them.

11:16The original Atlantic story gestured at this sense of violation and affront. It said, The future promised by AI is written with stolen words. Now from there, Ian says that he was initially mystified at the response. He writes, Perhaps I was just jealous of the famous writers who were being singled out as victims. Maybe I'd better understand the writer's angst I thought if my work, too, was being pirated and sourced for AI power. Now, however, Ian writes, I know that it is. Yesterday, when I put my name into the Atlantic's database search, three of the ten books I have authored or co-authored appeared.

11:44How exciting! I joined the ranks of the aggrieved. But then, despite some effort, I found myself disappointingly unaggrieved. What on earth was wrong with me? Now, Ian points out that the authors who have been at the center of a number of different lawsuits, and just generally been in the media who are angry about this, have tended to point to the fact that their work was used without permission. Now, Ian writes, Whether or not Meta's behavior amounts to infringement is a matter for the courts to decide. Permission is a different matter. One of the facts and pleasures of authorship is that one's work will be used in unpredictable ways.

12:16The philosopher Jacques Derrida liked to talk about dissemination, which I take to mean that, like a plant releasing its seed, an author separates from their published work. Their readers or viewers or listeners can not only can but must make sense of that work in different contexts. A retiree cracks a Murakami novel recommended by a grandchild. A high school kid skims Shakespeare for a class. My mother's tree trimmer reads my book on play at her suggestion. A lack of permission underlies all of these uses as it underlies influence in general. When successful, art exceeds its creator's plan. However, Ian writes, internet culture recasts permission as a moral right.

12:50He points out that in social media world, because many authors are online, they can and will tell you if you're wrong about their work. Ian also points out that the database in question, this Books3 database, was quote, itself uploaded in resistance to the corporate juggernauts. The person who first posted the repository has described it as the only way for open-source grassroots AI projects to compete with huge commercial enterprises. He was trying to return some control of the future to ordinary people, including book authors. Ultimately, Ian writes, I'm not sure what I make of all of this, as a citizen of the future no less than as a book author.

13:22Theft is an original sin of the internet. Sometimes we call it piracy, other times it's seen as innovation, or even liberation. AI merely iterates this ambiguity. I'm having trouble drawing any novel or definitive conclusions about the book's three story based on the day-old knowledge that some of my writing, along with trillions more chunks of words from perhaps Amazon reviews and Reddit grouses, have made their way into an AI training set. And indeed, Ian then goes on to point out, actually, what about those Amazon reviewers and Redditors? All of their work likely has been or will be sucked into the giant language models too.

13:51It is understandable, I suppose, to hold literary works in greater esteem than banana bread recipe introductions or am-i-the-asshole subreddit posts, but it is also pretentious. We who write and publish magazines and books are professionals with a personal stake in the gravity of authorship. We are also few in number. Almost anyone can write, over years, millions of words on social media, in texts and emails, in reports and memos for their work. I love books and respect them, but as a published author and professional writer, I may be in the category least at risk of losing my connection to the written word and it spoils.

14:18If an AI collage of Stephen King and Yelp can do better than me, what business do I have calling myself a writer in the first place? Ian concludes, I became an author because language offers a special medium for experimenting with ideas. Words and sentences are malleable, texts arise from basements of subtext. What I say embraces what I don't and makes room for what you read. Once bound in published, boxed, and shipped, my books find their ways to places I might never have anticipated. has vessels for ideas I hope but also has doorstops, or instinct execution devices, or has the last inch of a stack that holds up a laptop for an important zoom, or even, even, as a litany of tokens chunked apart to be reassembled by the alien mind of a weird machine.

14:54Why not? I am an author, sure, but I am also a man who put some words in order amid the uncountable others who have done the same. If authorship is nothing more than vanity, then let the machines put us out of our misery. Now, as you can probably tell, I loved that piece. And it's not because I don't think that these questions are important. I'm glad that these lawsuits are happening. We are in uncharted territory, and the various parts of this need to be weighed. It needs to be weighed by us who are just observing on the internet. It needs to be weighed by content creators who are having their work used in a way that they don't respect or they don't want it to be.

15:28And of course, ultimately, it has to be weighed by courts. But what Ian brings to this conversation, and what each of these pieces do, I think, is a real maturity and a moving past of the first phase of the conversation that is all outrage, all assumptions, all ideas and clinging to a world that simply does not exist anymore. It is only when we acknowledge that the world is and will be forever changed that we can actually figure out what we do next. And I am hugely in support of anyone willing to take on the conversation with that level of nuance and empathy for a future that is still being born.

16:04Thanks as always for listening or watching. And until next time, peace.