I have 99 problems with AI, but intellectual property isn’t one of them.
The media and entertainment industries have recently been plagued by questions about how content generated by artificial intelligence systems should be treated under intellectual property law. Last week, a federal judge ruled against an attempt to protect copyrights on artwork produced by a machine. In July, another federal judge suggested in a hearing that he would most likely drop a copyright infringement lawsuit brought by artists against several AI art generators. How AI could alter the economics of the film and television industry has become a major issue in the Hollywood writers’ and actors’ strike. And major news organizations, including the Times, are considering steps to protect the intellectual property that stems from their journalism.
In the face of all possible actions against AI and its creators, I would suggest caution. I have long thought about whether musicians, painters, photographers, writers, filmmakers and other producers of creative work, myself included, should fear, on a good day, that machines might harm their livelihoods. After extensive research and consultations with experts, I’ve come to a carefully considered and nuanced position: meh.
Artificial intelligence controversies will send many young copyright lawyers to college. But the more I use ChatGPT, Midjourney, and other AI tools, the more I suspect that many of the intellectual property questions they raise will ultimately prove to be less significant than we sometimes assume. This is because computers alone cannot yet and may never be able to produce truly innovative creative work.
In fact, I’d wager that artists and the creative industries will eventually find AI more of an asset than a competitor. In a recent assessment of AI-powered comedy, Times comedy critic Jason Zinoman suggested that AI comedians could ultimately improve human comedy: Competition from increasingly intelligent computer programs will force performers not only to rely more on intuition than imitation, but also to think more carefully about what makes them, and their work, distinctly human.
I think he’s right not only about comedy but about many other creative fields as well. What explains my solar position? History offers a clue: the technologies that have made art easier to produce have rarely ended up stifling human creativity. Electronic synthesizers have not eliminated the need for people to play musical instruments. Autotune hasn’t made singing in key obsolete. Photography hasn’t killed painting, and digitizing it hasn’t eliminated the need for professional photographers.
Then there’s the content I’ve seen AI produce: Unless it’s been heavily processed by humans, much of the music, pictures, jokes, and stories AI has provided us thus far sounded more a great mimicry than a great art. Sure, it’s impressive that ChatGPT can write a pop song in the style of Taylor Swift. But the ditties still smack of soulless imitation. They will not go platinum or sell out stadiums. AI could undermine some of the most important aspects of stock photos, for example, but will you use it to capture your wedding or document a war? No.
Which isn’t to say there won’t still be plenty of legal wrangling. Mark Lemley, a professor at Stanford Law School who teaches and debates intellectual property law issues, told me that he thinks the next five to 10 years will be marked by a series of legal battles over the role artificial intelligence plays in average. The number of issues will expand and become increasingly complicated, he said.
Lemley is one of the attorneys representing artificial intelligence firm Stability AI in a copyright infringement lawsuit brought by artists. At the heart of this lawsuit is the question of how AI systems are trained. Most acquire their intelligence by analyzing huge amounts of digital content, including many copyrighted works. Which begs the question: should artists be rewarded for their contributions, and if so, how?
For me the answer is no. When a machine is trained to understand language and culture by poring over many things online, it behaves, at least philosophically, just like a human being who draws inspiration from existing work. I don’t care if human readers are informed or inspired by reading my work, that’s why I do! so why should i care that computers will be?
Of course, one reason I might mind is if the machine uses what it learns from reading my work to produce work that can replace mine. But at the risk of arrogance, I don’t think that’s likely in the foreseeable future. To me, the very humanity of a human creator seems like the ultimate trump card over machines: who cares about a computer’s opinion on anything?
Another question is how we should think about potential infringement by machine-produced content. Current copyright law is designed to protect specific creative works, not a general creative style. But if the AI can copy an artist well enough to essentially duplicate her work, could that reach the level of infringement? In a recent article, Lemley and his co-authors suggested the following hypothesis: Someone creates a site that creates an automatically generated story about Yoda every time a user visits. If the site charges users for content, Lemley and colleagues argue, it could infringe Disney’s copyright even if a human hadn’t created the words and images about Yoda.
Such scenarios may not remain hypothetical for long; AI generators are very good at creating near exact copies of many famous characters. When I asked Midjourney to show me a little green fellow who trained Jedi for 800 years, the result was pretty accurate.
Which raises a related question: can the requires let’s say AI is protected by copyright law? There are already timely marketplaces where people sell the particular spells they have administered to the AI to produce certain works. Can it really fly?
No doubt these questions are important, but it’s not hard to think of reasonable answers. Artificial intelligence probably shouldn’t be allowed to create direct copies of existing works, but it seems wise to allow it the same freedom to remix art that humans enjoy.
I wouldn’t allow the most common suggestions to be copyrighted – you can’t claim any creativity in asking an AI to draw a cat, but suggestions with some level of human inspiration should qualify as copyrightable work. After all, when I ask Midjourney to photograph a cat smoking a pipe on a Civil War battlefield, I’m engaged in at least some degree of creative work. The pipe-smoking Civil War cat was summoned from my human brain. But aren’t these simple strings of keywords a lot more than I’d enter into a search engine to qualify as copyrighted creations? At the moment, we don’t really know.
But until we do, I leave you with my masterpiece:
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