this post was submitted on 01 Sep 2023
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I recommend reading this article by Kit Walsh, who’s a senior staff attorney at the EFF, a digital rights group, who recently won a historic case: border guards now need a warrant to search your phone.
I think the article is very good and well-written, and the author is probably more knowledgeable on this topic than I am, but I think it's a glaring omission that they never mention the idea that copyright can only be asserted on the output of humans. Even the latest guidance from the Copyright Office suggests that the raw output of an AI doesn't qualify under current law, and in order for AI to be copyrightable it needs to have a human apply some creative endeavor to it.
https://arstechnica.com/tech-policy/2023/03/us-issues-guidance-on-copyrighting-ai-assisted-artwork/
The author suggests that a ruling that an AI can't synthesize images from multiple sources might affect human artists who use multiple sources as inspiration. But those humans can look at 5 different paintings, create a 6th which is inspired by (but not identical to) the other 5, and get copyright protection for that, to protect their creative efforts. AI cannot, under current law. So when an AI combines five different paintings, who owns the copyright on it? The Monkey Selfie was ruled to be in the Public Domain. But AI can't be treated similarly; It seems absurd that you can put art through an AI "copyright wash" and end up with something free of copyright.
(And it looks like in the latest guidance from the Copyright Office linked above, they say that future applications will require the author to disclose whether they used AI to generate the content, and "Any failure to accurately reflect the role of AI in copyrighted works could result in “losing the benefits of the registration,”)
Even after reading that well-written article, I stand by my assertion that current copyright law simply doesn't protect the output of non-humans, and Congress will ultimately have to step in and define parameters for it. Until that happens, artists who can prove their work was used to train an AI have a legitimate case that they are being infringed upon every time an AI makes output that is similar.
It's important to remember the Copyright Office guidance isn’t law. Their guidance reflects only the office’s interpretation based on its experience, it isn’t binding in the courts or other parties. Guidance from the office is not a substitute for legal advice, and it does not create any rights or obligations for anyone. They are the lowest rung on the ladder for deciding what law means.
You said it yourself in the first paragraph, humans using machines have always been the copyright holders of any qualifying work they create. AI works are human works. AI can't be authors or hold copyright.
No, the Copyright Office 's statements are not law, but they are the ones who execute the law and who process copyright registrations, so it's not like their statements are meaningless. They won't change unless there is litigation that forces a change, or Congress changes the law, or maybe different leadership gets appointed with a different interpretation. Their guidance is all that ordinary copyright registrants can act on, without incurring the expense of a lawsuit (or buying a Senator).
This isn't true, the office is proactively exploring and evolving its understanding of this topic and are actively seeking expert and public feedback. You shouldn't expect this to be their final word on the subject.
Well, yeah, if the office decides to change their own interpretation based on feedback, they will. But that's in their own control, while the other things I cited are ways for outsiders to force a change.
You just made it seem like they weren't going to do anything else unless they were forced to.