Understanding Intellectual Property in the AI Era

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In an era where artificial intelligence (AI) shapes industries and drives innovation, intellectual property (IP) policies are at the forefront of national security, economic growth, and technological leadership. The recent lawsuits involving authors and digital artists suing tech developers over generative AI technology highlight the complexities and challenges in this field.

National Security Commission on Artificial Intelligence

Executives and academic leaders of the National Security Commission on Artificial Intelligence (NSCAI) have conveyed an uncomfortable message: America is not prepared for the challenges of the AI era. A comprehensive, whole-of-nation strategy is required.

Their final report from 2021 calls for the creation of a Technology Competitiveness Council to build a strategy that accounts for the complex security, economic, and scientific challenges of AI and its associated technologies. It emphasizes the need to maintain the United States’ advantage in AI and presents an integrated national strategy to reorganize the government, reorient the nation, and collaborate with allies.

The recommendations include promoting AI innovation to improve national competitiveness and protect critical U.S. advantages. They are designed as interlocking and mutually reinforcing actions, including organizational and policy reforms to bolster resilience against foreign influence and interference, cyberattacks, and disinformation campaigns.

The Need for Comprehensive IP Policies

The report emphasizes the urgent need to implement comprehensive intellectual property (IP) policies and regimes. The current lack of comprehensive IP policies for the AI era, coupled with legal uncertainties in U.S. patent eligibility, necessitates a robust plan for IP reform.

Details on Relevant Lawsuits

Filed on June 28 and July 7, 2023 by the Joseph Saveri Law Firm on behalf of five named plaintiffs (Mona Awad, Paul Tremblay, Christopher Golden, Richard Kadrey, and comedian Sarah Silverman), these suits claim that Microsoft-backed OpenAI (creators of ChatGPT) and Meta (creators of LLaMA) infringed the authors’ copyrights by using unauthorized copies of their books to train their AI models.

  • On June 28, 2023, the Joseph Saveri Law Firm, LLP and co-counsel Matthew Butterick filed a lawsuit in the United States District Court for the Northern District of California on behalf of a class of plaintiffs seeking compensation for damages caused by defendant OpenAI and an injunction to prevent future harms. The lawsuit alleges direct and vicarious copyright infringement related to forgeries, violations of the Digital Millennium Copyright Act, negligence, unjust enrichment, and various violations of California’s unfair competition laws.  
  • The lawsuit seeks not only to obtain justice for the alleged wrongful conduct but also to prevent future harm and ensure that these products are subject to the same legal standards as any other new technology that involves the use of massive amounts of intellectual property. 
  • “As artificial intelligence continues to drastically alter every aspect of the modern world, it’s critical that we recognize and protect the rights of authors such as these against unlawful theft and fraud,” said firm founder Joseph Saveri. “GPT-3.5 and GPT-4 are not just an infringement of authors’ rights; whether they aim to or not, models such as this will eliminate “author” as a viable career path. This case represents a larger fight for preserving ownership rights for all artists and other creators.”  
  • “AI needs to be fair and ethical for everyone,” said lawyer and published author Matthew Butterick. “OpenAI is appropriating the work of thousands of authors without consent, credit, or compensation. It’s an honor to stand up on behalf of fellow book authors and continue the vital conversation about how AI will coexist with human culture and creativity.” 
  • On July 7th, 2023, a lawsuit was filed by the Joseph Saveri Law Firm, LLP. The case, Silverman v. Meta Platforms, Inc., seeks damages for the authors and an injunction to prevent Meta from further infringing on their copyrights. The lawsuit also seeks to ensure that LLaMA and other AI products follow the same rules as any other new technology that involves the use of massive amounts of intellectual property.
  • “As artificial intelligence continues to change every aspect of the modern world, we must recognize and protect the rights of artists such as these authors against unlawful theft and fraud,” said Joseph Saveri, founder of the Joseph Saveri Law Firm, LLP. “LLaMA is not just an infringement of authors’ rights; whether they aim to or not, these products will eliminate ‘author’ as a viable career path. This case represents a larger fight for preserving ownership rights for all artists and other creators.”
  • On July 11, 2023, NBC News Legal Analyst Danny Cevallos detailed what the plaintiffs are alleging in this “case of first impression” that is “critical for the future of AI,” and projected that “the class [size] will be massive” given potential opportunities for other content creators to take legal action.

In November 2022, the Saveri law firm filed suit against GitHub on behalf of a group of software developers.

  • On November 3, 2022, the Joseph Saveri Law Firm, LLP and Matthew Butterick, a lawyer and open-source programmer, filed a complaint in the U.S. District Court for the Northern District of California, on behalf of open-source programmers against GitHub Copilot, its parent, Microsoft, and its AI-technology partner, OpenAI. This litigation alleges violations of open-source licenses.
  • In May 2023, the Court ruled on defendants’ motions to dismiss and one filed by plaintiffs to preserve their anonymity. The Court denied defendants’ efforts to dismiss two of plaintiffs’ most significant claims. Plaintiffs also prevailed regarding preserving their anonymity. This is a positive ruling for the plaintiffs and an important first step in the litigation.

In January, the firm sued three AI image generators on behalf of a group of artists. These cases are still pending and have divided copyright experts on questions of fair use and ownership.

  • On January 13, 2023, the Joseph Saveri Law Firm, LLP filed a complaint in the U.S. District Court for the Northern District of California on behalf of Sarah Andersen, Kelly McKernan, Karla Ortiz, and a class of other artists and stakeholders against Stability AI Ltd.; Stability AI, Inc.; DeviantArt, Inc.; and Midjourney, Inc. This suit alleges copyright infringement, DMCA violations, right of publicity violations, breach of the DeviantArt Terms of Service, unfair competition, and unjust enrichment. It likewise seeks damages and injunctive relief to compensate the class for harms already incurred and to prevent future harms.
  • On July 12, 2023, the Senate Judiciary Committee’s Subcommittee on Intellectual Property conducted a hearing—Artificial Intelligence and Intellectual Property-Part II: The Copyright—on the copyright issues intimately connected with this case. Plaintiff Karla Ortiz testified on behalf of artists whose creative work has been appropriated by image-generating AI products without permission or compensation. (Testimony occurs at 31:24, 59:54, 1:03:59, and 1:31:20.)

The lawsuits face an uphill battle in court, with some citing precedents like the Google Books case, where bulk copying and display of books were found to be fair use.

  • Google Books Case (Authors Guild v. Google, 2013-15): In this landmark ruling, the court found that Google’s scanning and displaying of snippets from millions of books constituted fair use. The decision, made in 2013, emphasized the transformative nature of Google’s actions and their public purpose in enhancing research.
  • TurnItIn.com Case (A.V. v. iParadigms, LLC, 2009): In 2009, the court held that works could be ingested by TurnItIn.com to create a database used to expose plagiarism by students. This was considered fair use, serving an educational purpose.
  • Kelly v. Arriba Soft Case (2003): This 2003 case held that the reproduction and display of photos as thumbnails were fair use. The court found the use to be transformative and not harmful to the market for the original photographs.

These precedents, spanning a decade, collectively suggest that using copyrighted works in a transformative manner that serves a public or educational purpose may be deemed fair use under U.S. copyright law. The specific circumstances of the AI-related lawsuits, however, may lead to different outcomes, reflecting the fact-dependent nature of fair use cases.

Protection of Data Associated with AI

The lawsuits raise concerns about using unauthorized copies of copyrighted works to train AI models, sparking debates over fair use and infringement. Public views on AI and IP policy have emphasized the need to safeguard this data, reflecting growing concerns about data security and ownership in the technology sector.

The evolving landscape of AI technologies brings unique challenges and opportunities to the field of intellectual property. The United States, along with other global leaders, must navigate complex legal and policy terrains to create robust and agile IP regimes that foster innovation, protect inventors, and maintain technological leadership. The recent lawsuits involving authors and digital artists, as well as the Authors Guild’s push for legislative solutions, serve as tangible examples of these complexities.

What Can Be Copyrighted in the Age of AI?

U.S. Ruling on AI-Created Art

In a significant ruling that could have implications for Hollywood studios and other content creators, a federal judge upheld a finding from the U.S. Copyright Office that a piece of art created by AI is not open to protection. The ruling was delivered in response to a challenge by Stephen Thaler, chief executive of neural network firm Imagination Engines.

Details of the Case
  • Date: The ruling was delivered on a Friday, August 18, 2023.
  • Litigants: Stephen Thaler vs. the U.S. Copyright Office.
  • AI System Involved: Thaler listed an AI system, the Creativity Machine, as the sole creator of an artwork called “A Recent Entrance to Paradise.”
  • Ruling: U.S. District Judge Beryl Howell found that copyright law has “never stretched so far” to “protect works generated by new forms of technology operating absent any guiding human hand.” The judge stressed that “Human authorship is a bedrock requirement.”
  • Background: Thaler argued that AI should be acknowledged “as an author where it otherwise meets authorship criteria,” with ownership vesting in the machine’s owner. The Copyright Office denied the application, emphasizing that “the nexus between the human mind and creative expression” is crucial for protection.

Implications and Related Cases

  • Monkey Selfie Case: In a related case, a federal appeals court ruled that a photo captured by a monkey can’t be granted a copyright since animals don’t qualify for protection.
  • AI Companies and Copyrighted Works: The ruling comes as courts weigh the legality of AI companies training their systems on copyrighted works. Artists have filed suits alleging copyright infringement against AI firms.
  • U.S. Copyright Office Position: In March, the copyright office affirmed that most works generated by AI aren’t copyrightable but clarified that AI-assisted materials qualify for protection in certain instances if a human “selected or arranged” it in a creative way.

Thought-Provoking Questions and Insights

  1. Human Authorship Requirement: How will the emphasis on human authorship in copyright law impact the future development and utilization of AI in creative industries?
  2. Legal Precedents for AI: What legal precedents are being set, and how might they shape the legal landscape for AI-generated content?
  3. Ethical Considerations: What ethical considerations arise from the legal recognition (or lack thereof) of AI-generated content, especially in terms of ownership, creativity, and innovation?

This ruling and the broader legal context highlight the complex interplay between AI, creativity, and intellectual property law. The insistence on human authorship as a requirement for copyright protection raises important questions about the nature of creativity, the role of technology, and the evolving landscape of legal rights and protections in the digital age.

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