Almost Timely News: Copyright Must NEVER Apply to AI-Made Works (2024-01-28) :: View in Browser

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95% of this week’s newsletter was generated by me, the human. You’ll listen to some AI-generated music and see some AI-generated photography in the opening. Learn why this kind of disclosure is important.

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Almost Timely News: Copyright Must NEVER Apply to AI-Made Works (2024-01-28)

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What’s On My Mind: Copyright Must NEVER Apply to AI-Made Works

Today, a slight departure from our usual tactical fare to something a little big picture. Before we begin, I want to emphasize and disclaim that I am not a lawyer. I have zero legal training and no legal expertise beyond the ability to use a search engine intelligently. I cannot give legal advice, and you should hire a qualified attorney in your jurisdiction for legal advice specific to your situation.

Okay, with that out of the way, let’s talk about copyright, generative AI, and making sure artificial intelligence work product is never, ever eligible for copyright. We should unequivocally ensure machine-made content can never be protected under intellectual property laws, or else we’re going to destroy the entire creative economy.

That’s a big claim, isn’t it? Let’s unpack why.

Today, in most places in the world, the existing law is such that machine created works cannot hold copyright. If you create a blog post in ChatGPT, the work is automatically in the public domain since copyright applies only to works created by humans. Famous court cases like Naruto vs. Slater in the USA have established precedent that works created by non-humans cannot be copyrighted.

There are those folks who do advocate that machine-made works should be copyrightable. After all, we’re all using generative AI fairly frequently, to write blog posts and create images and ideate for meetings. It seems reasonable that if we write a really good prompt and a machine creates a work product from our hard work, from our prompt and efforts, that we should be able to claim and protect that work, right?

On the surface, this sounds like a reasonable position. In practice, it would be an absolute disaster that would pretty much wipe out most creative industries, for two reasons: economic and legal.

Let’s tackle the legal reason first. Let’s say I use generative AI like ChatGPT to generate a song, like this.

AI Generated Song

Pretty catchy, isn’t it? (You should watch the video version or listen to the audio version of this issue.) Today, this song is ineligible for copyright. I can put it up on Soundcloud, I can publish it to YouTube, I can do all sorts of things with it, but I can’t protect it. If you wanted to, you could use it in any production of yours and I would have no legal recourse because it’s public domain.

Now, suppose I was able to copyright this. What would happen if you tried to use it? I could send a lawyer your way and say that you have to cease and desist the use of my copyrighted work, or pay me a license and royalties to use the work. That’s how it works with human-led works today. Back in the early 1990s, Vanilla Ice sampled the bass line from Queen and David Bowie’s Under Pressure. Vanilla Ice later had to pay a licensing fee of four million dollars for the use of that short bass line, plus royalties and credit to the original work.

Whether or not you meant to, if you used part of my machine-generated song, you would owe me a licensing fee and possibly royalties because you would infringe on my copyright.

One of the most important things you can do when it comes to any technology, but especially anything AI, is to ask what can go wrong. What could go wrong here? How could someone take this technology and use it in ways that we didn’t intend?

Well, suppose I took my prompt and I wrote a bit of code, and started doing this:

Screenshot of song variations

Now, imagine that I do this a million times. A hundred million times. A billion times. There are only so many ways you can use the different notes, chord progressions, and patterns of music and still make music that’s worth listening to – and a machine can make them all.

And now, with a billion variations, I’ve pretty much covered every possible song. If you recall, Vanilla Ice had to fork over four million dollars for roughly ten musical notes. If my billion songs are now copyrighted, then every musician who composes a song from today forward has to check that their composition isn’t in my catalog of a billion variations – and if it is (which, mathematically, it probably will be), they have to pay me.

One person, one corporate entity, could take advantage of machine-generated copyright law to create a library of copyrighted content than then everyone else has to either pay to use, or risk a lawsuit. Whoever has the most compute power to build that library first wins, and then everyone else has to basically pay tribute or use generative AI along with classical AI to find variations that aren’t in the catalog.

That wipes out the music industry. That wipes out musical creativity, because suddenly there is no incentive to create and publish original music for commercial purposes, including making a living as a musician. You know you’ll just end up in a copyright lawsuit sooner or later with a company that had better technology than you.

This applies to visual arts. Suppose I use generative AI to render a photo, such as this synthetic photo of the hills of Sonoma, California at sunset.

Synthetic photo of Sonoma

Pretty nice, right? Now suppose a photographer publishes a substantially similar photo. Could I claim that their photo infringes on mine? It’s possible. It would certainly be costly to defend in court. What about a painting? If a machine can render several billion images, and each of those images is copyrighted, then similar images created afterwards by other humans could be challenged.

There is precedent for this sort of behavior – patent trolls. These are companies which buy up portfolios of patents and then make their money suing other companies to pay up. Imagine how lucrative it will be for them to start doing the same with copyrights.

This is the first, major reason why we, as a civilization, should not permit machines to hold copyrights. The second reason is economic. When a human creates a work and then licenses or sells it, what happens to that money? The money they receive is put back into the ecosystem in the form of purchases – that human creator spends it on food, rent, etc.

What happens when machines create? If their work is copyrighted, meaning it can be protected and sold, then companies have a much stronger incentive to use machines rather than people. The work would enjoy the same level of protection, which in turn means that the profit margins on the work will be much, much higher. An API call to ChatGPT today to produce the music above consumed 831 tokens. ChatGPT costs 3 cents per thousand tokens via its API; some models like Mixtral that can run locally on your computer cost only the electricity needed to run your computer.

I recently paid an independent musician $500 for a theme song. For that money, I could have gotten 100,000 songs out of ChatGPT. Even if 99,000 of them were stinkers, that would still leave me with massive ROI for the one thousand songs that did not suck. That musician went on to spend that money in their economy. If I had paid that same money to OpenAI, that would have gone to datacenter and GPU costs for the most part – and certainly, it would not be distributed as evenly in the local economy. Sam Altman might spend some of it to charge his EV, but the point is that the money spent on tech tends to hyperconcentrate money with a handful of companies rather than the broad economy.

If machine works remain non-copyrightable, there’s a strong disincentive for companies like Disney to use machine-made works. They won’t be able to enforce copyright on them, which makes those works less valuable than human-led works that they can fully protect. If machine works suddenly have the same copyright status as human-led works, then a corporation like Disney has much greater incentive to replace human creators as quickly as possible with machines, because the machines will be able to scale their created works to levels only limited by compute power. Tools like Stable Diffusion XL Turbo can generate an image in 207 milliseconds – that’s a fifth of a second. How quickly could a Disney or a Netflix engineer a gigantic content catalog that is entirely protected by copyright and that they could enforce over any human creator?

This is why it’s so important that we lobby our various governments around the world to keep machine-made content without any intellectual property rights. Write your elected representatives today to let them know your position on copyright and intellectual property rights being reserved solely for humans. Machine-made works should remain in the public domain so that human-led works are always inherently more valuable. If we allow machine-made works to be copyrighted and protected, we forfeit our own creative futures to the libraries created by a few well-funded companies that have the compute power to create every foreseeable variation of commercially viable content there is, and every other creator will have to pay them.

Now, as I said at the top, I am not a lawyer, and I have no legal background. If you’re a lawyer and I’m wrong about the law and how things would work in a world where AI can hold copyright, please leave a note in the comments to let me know what the real deal is as an attorney.

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ICYMI: In Case You Missed it

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See you next week,

Christopher S. Penn


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