Week 12: Emerging Tech

April 4, 2024
Generative AI will be on your
exam.
 What is AI?
● Artificial Intelligence (AI) - technology in the form of one or more software
algorithms, attempting to mimic the capabilities of humans
● Machine Learning (ML) - a subset of AI that searches for patterns in data
○ Predictive text on iPhone or email
○ Natural Language Processing - automatic captions or subtitles
(YouTube)
○ Computer Vision - object-recognition in photos or video (Adobe Sensei,
IMDb/Amazon X-Ray)
● Generative AI - generation of new artifacts with data/materials and models
that relate to original data/materials
○ Models: Anthropic, Google Palm, Meta Llama, OpenAI (Codex/GPT)
○ Services: Adobe Firefly, Midjourney, ChatGPT, GitHub Copilot, Disney’s
Aging/Anti-Aging Tool
 What is AI not?
● Artificial General Intelligence (AGI) - also called the singularity, a theoretical
point in time at which AI develops a conscience or can outperform human
intelligence. This is sometimes referred to as “Strong AI”.
● Avoid assigning human-like terminology or characteristics to AI technologies
● “Narrow AI” is what we currently have – technologies that perform singular
tasks
Breaking Down Generative AI

TRAINING MATERIALS TOOL / MODEL / SYSTEM OUTPUT

- Data(base) - Neural Networks (Google’s - Services

Transformer)
- Information (PI, PII, - Large Language Models - Content
PHI) (LLM) - Data (Derivative or
- Diffusion
- Works (copyright, Synthetic)
- Generative AI (OpenAI,
public domain) GitHub Copilot, Midjourney) - Automation
- Sensors - Computer Vision
- Intelligent Automation
- Other AI/ML
models
 Copyright Law Refresher
● Requirements for protection:
○ Fixed in a tangible medium of expression (outside of your mind)
○ Original
○ Human authorship
● Does not protect:
○ Ideas or Discoveries
○ Procedures / Processes
○ Systems or Methods of Operation
“There is no question a copyright
law allows for the use of tools in
creation, but at what point does
setting something into motion
mean authorship?”

Case Law
Burrow-Giles Lithographic Co. v. Sarony
111 U.S. 53, 58 (1884)
 Copyright Law: Output
● 1800s: Works by non-human authors will not be registered1
● 1965: USCO Report2
● 1991: Information alone without a minimum of original creativity cannot be
protected by copyright (Feist v. Rural Telephone)
● 2018: Monkey Selfies (Naruto v. Slater)
● 2022: Review Board of USCO upheld refusal to register work generated by AI
algorithm; Federal lawsuit filed (Thaler v. Perlmutter)
● 2022: USCO investigating registration issued for work partially generated
using AI (Zarya Of The Dawn, VAU001480196 / 2022-09-15)
● 2023: USCO publishes generative AI policy; Federal court upholds refusal to
register in Thaler; USCO refuses to register Théâtre D’opéra Spatial and
SURYAST.
1. Section 306 of the Compendium references two cases from the late 1800s: Trade-Mark Cases, 100 U.S. 82, 94 (1879) and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
2. The 1965 Annual Report of the U.S. Copyright Office. Available at: https://www.copyright.gov/reports/annual/archive/ar-1965.pdf
The crucial question is “whether the ‘work’ is basically
one of human authorship, with the computer [or other
device] merely being an assisting instrument, or
whether the traditional elements of authorship in the
work (literary, artistic, or musical expression or
elements of selection, arrangement, etc.) were actually
conceived and executed not by man but by a machine.”

Case Law
U.S. Copyright Office, Report to the Librarian of
Congress by the Register of Copyrights 1965
 A Recent Entrance to Paradise
● November 2018:
○ Registration application filed for output of
Creativity Machine
○ Thaler claims “ownership of the machine”
and the machine listed as the author
● August 2019 & March 2020: USCO refuses to
register for lack of human authorship, Thaler
pushes back
● February 2022: USCO issues final denial.
● June 2022: Thaler sues USCO
● August 2023: USCO granted summary
judgment upholding refusal to register
● October 2023: Thaler files Notice of Appeal.
A Recent Entrance to Paradise, Dr. Stephen Thaler (2018)
 Zarya of the Dawn
● September 2022: Zarya Of The Dawn,
VAU001480196 / 2022-09-15,
registration issued by the USCO
● October 2022: USCO issue notice of
cancellation, begins investigating the
work.
● November 2022: Response letter sent
to USCO by Kashtanova
● February 2023: USCO denies
registration for AI generated images,
permits registration of text and
arrangement of graphic novel.
Issue #1 of Zarya of the Dawn, Kristina Kashtanova (2022)
 Théâtre D’opéra Spatial
● September 2022: “[T]he Board finds that the Work contains more than
○ Théâtre D’opéra Spatial, registration a de minimis amount of AI-generated content, which
application filed, no disclosure of AI must be disclaimed in an application for
○ USCO investigates the work, which involved registration.”
600+ prompts in Midjourney
● October 2022: USCO examiner asks that the
generative material be disclaimed
● December 2022: USCO issues refusal to
register
● January & July 2023: Allen requests review of
decision first and second time
● September 2023: Copyright Review Board
upholds denial of registration.
Théâtre D’opéra Spatial, Jason M. Allen (2022)
Théâtre D’opéra Spatial

Théâtre D’opéra Spatial, Jason M. Allen (2022)

 SURYAST
● December 2021:
○ SURYAST, registration application filed
○ Sahni noted an original photograph as part of his
authorship, while the software was listed as solely
contributing the “2-D artwork.”
● June 2022: USCO issues refusal to register, can’t
separate human authorship from “the final work
produced by the computer program”
● September 2022 & July 2023: Sahni requests review of
decision first and second time
● December 2023: Copyright Review Board upholds
denial of registration.
SURYAST, Ankit Sahni (2021)
SURYAST
Creation-Generation Spectrum

Book written in MS Word, “Creativity Machine” by

Medium- and tool-free Composite made with Dr. Stephen Thaler;
creative expression Adobe Photoshop, Eponym NFT Collection;
(speaking, dancing, Software code written in OpenAI tools; Midjourney;
performance art) Xcode / Visual Studio Stable Diffusion

Entirely Human Created Human Creation with Machine Human Creation with AI/ML Entirely Machine-Generated

Paintings, cartoons, metal Adobe Sensei/Firefly, Singularity/AGI

sculpture, hand-written Some NFT Collections, (theoretical point
poem. AI-powered word where AI is self-aware)
processors or graphic
design generators

Copyrightable De Minimis Test Public Domain

Credit: Franklin Graves Based on U.S. law, Oct. 2023

 “Best Practices” for Outputs
First, establish internal gen AI use guidelines and policies
Second, evaluate based on use case. So ask:

🚫 Is this content we want to protect with copyright?

Evergreen materials (lead magnets, workbooks, key content pieces), books, courses.

⚠ Are there elements of the content we want to protect with copyright?

Outlines, first drafts, podcast show notes, captions/transcripts

✅ Does the content have a short lifespan?

Ephemeral content, e.g., email campaigns, blogs, and social posts
Breaking Down Generative AI: IP Questions

TRAINING MATERIALS TOOL / MODEL / SYSTEM OUTPUT

- Data(base) - Neural Networks (Google’s - Services

Ownership:
Creation: Creation:
Transformer)
- Information
Licensing?(PI, PII, - LargeLicensing?
Language Models - Human involvement?
Content
PHI)
Fair Use defense? Derivative Work?
(LLM) - Data (Derivative or
- Diffusion Infringement:
Scraping?
- Works (copyright, Infringement? Synthetic)
- Generative AI (OpenAI, Substantially similar?
public domain) GitHub Copilot, Midjourney) - Automation
Derivative Work?
Distribution:
- Sensors - Distribute/Deploy:
Computer Vision
Licensing? - Licensing?
Intelligent Automation Distribution:
- Other AI/ML
Infringement? Infringement? Any rights?
models
 Copyright Law: Inputs
An analysis of rights over the content/works, data, or other information is key. Is a
valid license, or other permission, obtained from the owner? Is the database
compiled in a lawful manner?
● US:
○ Gates up / gates down analysis from SCOTUS (Van Buren v. US)
○ Data scraping isn’t legal (HiQ v. LinkedIn)
● UK:
○ Text and data mining exception to copyright, but limited to academic and
research purposes
 Copyright Law: Inputs
Over a dozen lawsuits have been filed challenging the legality of using
copyrighted material / works as training material without permissions or licenses.

So far, district courts aren’t satisfied, but it’s the beginning of a long journey.

“[D]efective in numerous respects” wrote Judge William Orrick (who also ruled in
the monkey selfie case) in reference to the infringement claims in an October
2023 ruling in the MidJourney, DeviantArt, and Stability AI lawsuit.

But, the claim for direct infringement against Stability AI was allowed to remain.
 IP Law: Models
How do you protect a model?

Distribution: OSS licenses are often insufficient given there is no IP ownership

claim to be made. Net neural weights, etc., are all machine-generated, so don’t
qualify for copyright.

Deployment: How do you license an “off-the-shelf” model? OSS? Contract

obligations? Use restrictions (academic/research only, non-commercial,
industry-specific)?
Question