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Code cannot be owned. A creative expression may be copyrighted. Purely functional expressions may not be copyrighted. The output of a trained AI is insufficien

Code cannot be owned. A creative expression may be copyrighted. Purely functional expressions may not be copyrighted. The output of a trained AI is insufficiently creative to be copyrighted. Only humans can hold a copyright. Now with all that, there really isn’t anything here to get worked up over.

hutzlibu 4y ago
"Purely functional expressions may not be copyrighted." Is this more than a opinion? Because you can have whole programs as a long functional expression (not that I am a fan of such a coding style, but it exists).
- jkaplowitz 4y ago
  It is an accurate statement of the law in the US, but "purely functional expression" is not used in the sense of a mathematical function. It basically means expressions that solely reflect the way you need to do the thing to accomplish the function you are trying to achieve, without any significant creative element. For example, if I asked you to write Java code to print the sum of two integer variables named a and b, followed by a newline, you'd probably write pretty much exactly this: System.out.println(a + b); You might vary the spacing around the punctuation, or a few other unimportant details, but there's not much room for creativity there while still accomplishing the desired function. It isn't copyrightable. And this is a good example of how the word functional means something non-mathematical here: that isn't even a functional expression in the mathematical sense, since there's no return value and the printing is a side effect. It's purely imperative.
  - monsieurbanana 4y ago
    It seems like a very blurry line for any non-trivial piece of code.
    - danShumway 4y ago
      > It seems like a very blurry line Opinion me, this statement could apply to the vast majority of copyright law in the US.
      - visarga 4y ago
        Haha, imagine they make all the noise now and get language models to solve attribution, but as a side effect all human plagiarism that is hiding in plain sight will be revealed as well. Be careful what you wish for.
    - jkaplowitz 4y ago
      It is a blurry line, like many legal tests. Human judges and/or juries apply this test in case of litigation, as advised by whatever experts the parties are able to to offer.
- danShumway 4y ago
  It's not worded great (code can be owned under current law). But surprisingly enough, there is a core here that is more than opinion, it just needs some elaboration. It's also going to be hotly debated in the future, because right now most of the commercial AI-generators are just kind of ignoring this and at some point I think they're going to make the argument, "this law/interpretation can't hold or else it would be commercially devastating for us, and it needs to change." But under current US copyright law, the US copyright office has pretty consistently ruled that: - purely functional expressions without a creative aspect can't be copyrighted (ie, you patent an invention, you don't copyright it, and stuff like recipes aren't eligible for copyright at all, only the surrounding text is). - AI-generated content does not have a creative aspect and isn't eligible for copyright protection. They've even gone so far as to revoke copyright protections to AI-generated content[0][1]. We haven't gotten a similar ruling about code that I'm aware of, but given that the US copyright office already only grants copyright to code under the assumption that coding is a creative act, it's very difficult to imagine code having more legal protections than an image or a book. ---- In my opinion, this is the much more interesting debate than model's source[2], because nobody is really talking about it, and depending on how the inevitable legal challenges play out, it could completely change the field. It's an interesting choice to think about -- let's say an AI gets good enough that you can sit down, describe an app, and the AI just generates it straight up. Would you still use that tool even if the resulting code was public domain and you couldn't assert ownership over it? Which would be more important: the accessibility/ease-of-creation, or owning it? It's also interesting because I haven't heard a ton of good legal arguments from people about why this shouldn't be the case, so there's a nontrivial chance that it holds in the future. I've heard tons of logic-based arguments: "it's creative because I decided what to generate, photographs are copyrightable, etc..." And those aren't necessarily bad arguments, they're just arguments that the US copyright office has already rejected. I haven't seen a lot of arguments about "here's why AI generated code would be eligible without a legal challenge overturning existing copyright rules." ---- [0]: https://www.theverge.com/2022/2/21/22944335/us-copyright-office-reject-ai-generated-art-recent-entrance-to-paradise https://www.theverge.com/2022/2/21/22944335/us-copyright-off... [1]: https://aibusiness.com/ml/ai-generated-comic-book-loses-copyright-protection https://aibusiness.com/ml/ai-generated-comic-book-loses-copy... [2]: Not that the debate over the training data isn't interesting or important; that could also have implications for stuff like fair-use in transformative contexts. It's just that I think it's less likely to have far-reaching implications or be upheld.
monsieurbanana 4y ago
I'd like to hear how you decide which piece of code is creative and which isn't.
- andybak 4y ago
  It's for a court of law to decide. GP was merely stating (what sounds like a fairly accurate) description of how copyright on code currently works in most jurisdictions.
  - monsieurbanana 4y ago
    GP was stating that AI couldn't own copyright because it wasn't creative enough. Now you're telling me (and I agree) that whether it's creative enough is up to a court of law to decide. Feels like we're agreeing then, and disagreeing with GP?
    - randombits0 4y ago
      AI can’t own copyright because only humans can get copyrights.
marstall 4y ago
perhaps. but incentives can exist for people to publish their code as open source for the benefit of humanity. like credit and public recognition.
visarga 4y ago
> The output of a trained AI is insufficiently creative to be copyrighted. Only humans can hold a copyright. That's overgeneralisation. A language model alone, yes, is just derivative. But a language model trained on solving problems with reinforcement learning can surpass humans. For example AlphaGo and AlphaTensor are models that learned from running simulations.
- danShumway 4y ago
  It's not a question of whether the AI can be creative in a philosophical sense, current copyright law (in the US) only protects human creativity -- AI and non-human animals can't hold IP at all, nor can they delegate it to someone else. Under current copyright law, if you built a model that surpassed humans and trained itself on simulations and it wasn't making derivative works but instead producing purely original output, the resulting output would not be copyrightable. In fact, under current copyright law, if you built an AI that was sapient, the creative work it made would not be copyrightable -- unless you literally got the law to grant it legal personhood or something. Moving AI in a direction of being more fundamentally creative makes this harder, not easier. The legal defense of copyright in cases involving AI is that the creativity is coming from the human using the AI, not the AI itself. As the AI gets better at generating usable output with less directing and micromanaging, that argument gets weaker, not stronger. The question isn't whether or not the AI is creative or produces novel output, the question is whether a human exhibited enough creativity making the work for it to meet the standard of gaining copyright protections -- which, traditionally, the US copyright office has usually held isn't true for AI-generated content.

hutzlibu 4y ago

"Purely functional expressions may not be copyrighted." Is this more than a opinion? Because you can have whole programs as a long functional expression (not that I am a fan of such a coding style, but it exists).

jkaplowitz 4y ago
It is an accurate statement of the law in the US, but "purely functional expression" is not used in the sense of a mathematical function. It basically means expressions that solely reflect the way you need to do the thing to accomplish the function you are trying to achieve, without any significant creative element. For example, if I asked you to write Java code to print the sum of two integer variables named a and b, followed by a newline, you'd probably write pretty much exactly this: System.out.println(a + b); You might vary the spacing around the punctuation, or a few other unimportant details, but there's not much room for creativity there while still accomplishing the desired function. It isn't copyrightable. And this is a good example of how the word functional means something non-mathematical here: that isn't even a functional expression in the mathematical sense, since there's no return value and the printing is a side effect. It's purely imperative.
- monsieurbanana 4y ago
  It seems like a very blurry line for any non-trivial piece of code.
  - danShumway 4y ago
    > It seems like a very blurry line Opinion me, this statement could apply to the vast majority of copyright law in the US.
    - visarga 4y ago
      Haha, imagine they make all the noise now and get language models to solve attribution, but as a side effect all human plagiarism that is hiding in plain sight will be revealed as well. Be careful what you wish for.
  - jkaplowitz 4y ago
    It is a blurry line, like many legal tests. Human judges and/or juries apply this test in case of litigation, as advised by whatever experts the parties are able to to offer.
danShumway 4y ago
It's not worded great (code can be owned under current law). But surprisingly enough, there is a core here that is more than opinion, it just needs some elaboration. It's also going to be hotly debated in the future, because right now most of the commercial AI-generators are just kind of ignoring this and at some point I think they're going to make the argument, "this law/interpretation can't hold or else it would be commercially devastating for us, and it needs to change." But under current US copyright law, the US copyright office has pretty consistently ruled that: - purely functional expressions without a creative aspect can't be copyrighted (ie, you patent an invention, you don't copyright it, and stuff like recipes aren't eligible for copyright at all, only the surrounding text is). - AI-generated content does not have a creative aspect and isn't eligible for copyright protection. They've even gone so far as to revoke copyright protections to AI-generated content[0][1]. We haven't gotten a similar ruling about code that I'm aware of, but given that the US copyright office already only grants copyright to code under the assumption that coding is a creative act, it's very difficult to imagine code having more legal protections than an image or a book. ---- In my opinion, this is the much more interesting debate than model's source[2], because nobody is really talking about it, and depending on how the inevitable legal challenges play out, it could completely change the field. It's an interesting choice to think about -- let's say an AI gets good enough that you can sit down, describe an app, and the AI just generates it straight up. Would you still use that tool even if the resulting code was public domain and you couldn't assert ownership over it? Which would be more important: the accessibility/ease-of-creation, or owning it? It's also interesting because I haven't heard a ton of good legal arguments from people about why this shouldn't be the case, so there's a nontrivial chance that it holds in the future. I've heard tons of logic-based arguments: "it's creative because I decided what to generate, photographs are copyrightable, etc..." And those aren't necessarily bad arguments, they're just arguments that the US copyright office has already rejected. I haven't seen a lot of arguments about "here's why AI generated code would be eligible without a legal challenge overturning existing copyright rules." ---- [0]: https://www.theverge.com/2022/2/21/22944335/us-copyright-office-reject-ai-generated-art-recent-entrance-to-paradise https://www.theverge.com/2022/2/21/22944335/us-copyright-off... [1]: https://aibusiness.com/ml/ai-generated-comic-book-loses-copyright-protection https://aibusiness.com/ml/ai-generated-comic-book-loses-copy... [2]: Not that the debate over the training data isn't interesting or important; that could also have implications for stuff like fair-use in transformative contexts. It's just that I think it's less likely to have far-reaching implications or be upheld.

monsieurbanana 4y ago

I'd like to hear how you decide which piece of code is creative and which isn't.

andybak 4y ago
It's for a court of law to decide. GP was merely stating (what sounds like a fairly accurate) description of how copyright on code currently works in most jurisdictions.
- monsieurbanana 4y ago
  GP was stating that AI couldn't own copyright because it wasn't creative enough. Now you're telling me (and I agree) that whether it's creative enough is up to a court of law to decide. Feels like we're agreeing then, and disagreeing with GP?
  - randombits0 4y ago
    AI can’t own copyright because only humans can get copyrights.

marstall 4y ago

perhaps. but incentives can exist for people to publish their code as open source for the benefit of humanity. like credit and public recognition.

visarga 4y ago

> The output of a trained AI is insufficiently creative to be copyrighted. Only humans can hold a copyright. That's overgeneralisation. A language model alone, yes, is just derivative. But a language model trained on solving problems with reinforcement learning can surpass humans. For example AlphaGo and AlphaTensor are models that learned from running simulations.

danShumway 4y ago
It's not a question of whether the AI can be creative in a philosophical sense, current copyright law (in the US) only protects human creativity -- AI and non-human animals can't hold IP at all, nor can they delegate it to someone else. Under current copyright law, if you built a model that surpassed humans and trained itself on simulations and it wasn't making derivative works but instead producing purely original output, the resulting output would not be copyrightable. In fact, under current copyright law, if you built an AI that was sapient, the creative work it made would not be copyrightable -- unless you literally got the law to grant it legal personhood or something. Moving AI in a direction of being more fundamentally creative makes this harder, not easier. The legal defense of copyright in cases involving AI is that the creativity is coming from the human using the AI, not the AI itself. As the AI gets better at generating usable output with less directing and micromanaging, that argument gets weaker, not stronger. The question isn't whether or not the AI is creative or produces novel output, the question is whether a human exhibited enough creativity making the work for it to meet the standard of gaining copyright protections -- which, traditionally, the US copyright office has usually held isn't true for AI-generated content.