“AI is the next revolution … there is no going back.”
— M. Werneck, executive vice president, The Kraft Heinz Company.
Not all revolutions benefit humanity. Tech luminaries Elon Musk and AI pioneer Yoshua Bengio recently warned we might be circling the drain. They, and others, have called for a six-month moratorium on training artificial intelligence systems more powerful than Microsoft’s GPT-4. They caution AI can be dangerous to society in ways not understood.
Nine years ago Stephen Hawking was more direct: “The development of full AI could spell the end of the human race.” Yet we race forward at breakneck speed.
Musk’s concern runs from an internet populated with AI-generated false information, to a situation reminiscent of the AI Skynet war on humans waged in the movie, “The Terminator.’
AI technology capable of generating content by user prompt exists. Chatbots, for example, respond to human questions; they can produce sophisticated computer code. Companies are racing to develop and market the most sophisticated AI tools.
Max Tegmark, an MIT physics professor and president of the Future Life Institute, calls this practice a “suicide race.” He fears, “humanity as a whole could lose control of its own destiny.” That’s a stiff warning. Steve Wozniak and others have joined the chorus.
Yet many continue to embrace the development of AI, believing, possibly correctly, that it will make work more stimulating and replace mundane functions now done by people, such as organizing and fulfilling seating preferences on flights. No doubt, some will lose jobs; others will gain jobs.
Hardly the stuff of science fiction and the end of civilization, but AI has and will continue to create special problems in the realm of copyright protection and ownership because “authors” are starting to use it to create content including text and illustrations. Some are comparing this so-called copyright frontier to the late 19th century reconciliation of photography and copyright.
The U.S. Copyright Office is grappling with old questions applied to the AI technology: What is protectable, what is not? Who is the author? Recently, that office denied registration to AI-generated images in the work, “Zarya of the Dawn.” The story and the arrangement of images were considered sufficiently original to a human author to be registerable.
This was probably one of the first decisions of the office regarding whether and to what extent AI-generated content should be recognized as protectable under copyright laws because content is generated from human decisions. The “Zarya” author unsuccessfully claimed that the images he sought to register were created as a result of his expression of creativity. But the office declined to agree, ruling that because the specific outcome of the AI application Midjourney could not be predicted by users, its use is distinct from the use of other artistic tools, say a camera.
Generative AI programs create text, images and other content through human prompts. They have this capability because they are trained to generate content from exposure to existing, and often protected, works.
As to the AI-generated product, who is the author, if anyone — the machine or the human prompter? The copyright act fails to define “author;” the register will only recognize works created by real people.
Challengers to this policy have asserted human authorship is not a requirement for registration. One suit is pending and the results could likely depend on the level of human-machine interactions. Courts, for example, since 1884 have held protectable photographs created by cameras, due to the creative decisions made by the photographer, such as lighting and angle.
The Register, however, has continued to assert lack of human control over AI as a basis to deny registration.
The question of who owns the work also looms, and while that answer could depend on the creative choices made by the user to complete the project, those rights can arguably be taken, or licensed, by the end user agreement.
Lastly, the courts will need to grapple with whether training a program by copying existing works is infringement or a permissible fair use. And there will likely be many more questions. These questions surrounding copyright seems trivial, however, considering the warning from prominent thinkers that AI could end our civilization. There’s so much to consider, and a moratorium seems like a grand idea.
James B. Astrachan is a partner at Goodell, DeVries, Leech & Dann, LLP and teaches trademark and unfair competition law at University of Baltimore Law School. He and partner Donna Thomas are the authors of “Law of Advertising.”
This article was originally published in The Daily Record.