5 ms·

If SCOTUS is saying that AI works, even those co-authored by humans, are not eligible for copyright/patenting; Doesn't that mean any code-base that uses AI gen

If SCOTUS is saying that AI works, even those co-authored by humans, are not eligible for copyright/patenting; Doesn't that mean any code-base that uses AI generated code does not have an implicit copyright holder? And thus even the human constructor does not have the right to apply any license [closed/open] onto it whatsoever?

schlauerfox 7mo ago
Hopefully.
RansomStark 7mo ago
That's the position I came to based on these rulings, or lack thereof. I think of all the reasons open source shouldn't accept AI created code is that it can't be protected, and that has the potential to threaten the whole project. OpenClaw, for instance has an MIT license [0], but, per the creators own words, they didn't even review the code. OpenClaw isn't MIT licensed, the MIT license relies on copyright, and because there was not even human review of the majority of the code, no substantial human input, that code base can't be copyrighted. No need to steal AI code, it doesn't belong to anyone. [0] https://github.com/openclaw/openclaw?tab=MIT-1-ov-file#readme https://github.com/openclaw/openclaw?tab=MIT-1-ov-file#readm...
andriy_koval 7mo ago
> Doesn't that mean any code-base that uses AI generated code does not have an implicit copyright holder? And thus even the human constructor does not have the right to apply any license [closed/open] onto it whatsoever? besides copyright, source code also can be protected as a trade secret.
- lazide 7mo ago
  For a company with any decent number of people with access to the code base, extremely difficult to maintain that type of protection.
  - andriy_koval 7mo ago
    I mean trade secret as a legal protection: code is declared as trade secret. Then if employee leaks it, and other company uses it, it can be sued.
    - lazide 7mo ago
      It is not that simple. To have that protection, it needs to be treated (and protected) like an actual secret. It’s why the nominal ‘top secret’ coke formula is stored in a giant vault. If everyone at the company has access (and it’s a big company), good luck having that protection.
      - andriy_koval 7mo ago
        claude says one needs to take "reasonable steps", which includes asking employee to sign NDA, setting access control, and putting TRADE SECRET disclosure in source files: https://ipwatchdog.com/2025/12/02/fourth-circuit-clarifies-reasonable-efforts-standard-dtsa-trade-secret-protection/ https://ipwatchdog.com/2025/12/02/fourth-circuit-clarifies-r...
      - shagie 7mo ago
        https://www.wipo.int/web-publications/wipo-guide-to-trade-secrets-and-innovation/en/part-iii-basics-of-trade-secret-protection.html https://www.wipo.int/web-publications/wipo-guide-to-trade-se... is likely a good source for the "what constitutes trade secret" To enjoy trade secret protection, the above mentioned three criteria (i.e., secrecy, commercial value because of the secrecy, and reasonable steps taken by trade secret holders to maintain secrecy) must be complied with (see section 2.1 for the criteria to be met). Trade secrets can be protected for an unlimited period of time, unless they cease to meet the criteria for trade secret protection. Trade secret holders can seek protection only where unauthorized disclosure, acquisition or use of their trade secrets is made in a manner contrary to honest commercial practice. In other words, they do not enjoy the type of “exclusive rights” that are generally available for other categories of IP. This will be discussed in the next section. One of the things there though is that trade secrets don't have exclusive rights. If you write code and then distribute the application, trade secrets don't protect it anymore. There's also a section on trade secrets and digital objects... which includes code ... and that gets into other challenges. https://www.wipo.int/web-publications/wipo-guide-to-trade-secrets-and-innovation/en/part-vii-trade-secrets-and-digital-objects.html https://www.wipo.int/web-publications/wipo-guide-to-trade-se... Copyright is another form of intellectual property protection available to code and algorithms. However, it should be noted that certain jurisdictions do not permit an owner to assert both trade secret and copyright, especially if the copyrighted software discloses a majority of the source code or the “proprietary” portions. In the Capricorn case, the court held that the source code owner was barred from asserting trade secret protection because the code was also registered as a copyright, and thus available to the public. Therefore, the source code owner should carefully consider the pros and cons of each type of protection. ... it also has guidance on trade secrets and LLMs. https://www.wipo.int/web-publications/wipo-guide-to-trade-secrets-and-innovation/en/part-vii-trade-secrets-and-digital-objects.html#h2-5-digital-trade-secrets-and-large-language-models-oh73d https://www.wipo.int/web-publications/wipo-guide-to-trade-se...
popalchemist 7mo ago
This would only apply if the codebase were 100% vibe coded. If there is human input - as there is in code, with the role of the software engineer, then it falls into another category for the sake of copyright arguments. And the way it works is copyright is granted automatically and only revoked/denied through litigation.
lesuorac 7mo ago
> If SCOTUS is saying that AI works, even those co-authored by humans, are not eligible for copyright/patenting; They aren't. The copyright office isn't either. Everybody is very explictly saying that if you use say Sora to generate an image and you apply for a copyright with "Sora" as the author it'll be denied. Same as if you apply for a copyright with "My Dog" as the author. Authors must be humans and if you do not fill the author field out with a human it's denied. This has nothing to do with the tool used to create the art work.
- SirMadam 7mo ago
  While I would like to believe you, doesn't this legal document linked by the article show that, in at least one of the cases, the author WAS trying to apply with himself, "Mr. Allen", as the author? And not the AI? https://fingfx.thomsonreuters.com/gfx/legaldocs/byprrqkqxpe/AI%20COPYRIGHT%20REGISTRATION%20decision.pdf https://fingfx.thomsonreuters.com/gfx/legaldocs/byprrqkqxpe/...
  - pseudalopex 7mo ago
    Allen's case has not reached the Supreme Court. The Copyright Office said he could have copyright of what he authored. But he refused to disclaim what Midjourney generated.
- deleted 7mo ago
  [deleted]
scuff3d 7mo ago
Given how the models were trained for coding, every single code base that uses any code generated by an LLM should be required to be open sourced, or at least source available. I'm not saying there is currently a legal president to enforce this, I'm saying ethically it make sense.
- georgemcbay 7mo ago
  I pretty much agree with you in principle, but I'm also positive this will never happen.
  - scuff3d 7mo ago
    Definitely not. Apparently copyright and licences only matter until a mega corporation stands to loose billions thanks to their blatant theft. Then nobody cares. But you're suppose to feel bad for pirating the latest season of Stranger Things.
    - layla5alive 7mo ago
      Its truly sad but true. Coming back to this - why do we collectively put up with this bullshit? Corruption is everywhere and we are collectively just withdrawn in defeat that we've lost and this is the inevitable state of things.. can't we do better than this?
conartist6 7mo ago
There's going to be a spectrum here, but for some of these new pilot projects like vinext where the claim is primary AI authorship I would expect the resulting works not to be copyrighted. What does that mean? I don't know. They are claiming copyright over vinext and licensing it under MIT, a copyright-based license. So the license and the copyright both get swept away in the flood there and what's left is a formerly-copyrighted software duplicated as a work [in the public domain?] [that nobody can legally use?] [that the author can legally use but not legally license?] Choose your own adventure, now with copyright law!

schlauerfox 7mo ago

Hopefully.

RansomStark 7mo ago

That's the position I came to based on these rulings, or lack thereof. I think of all the reasons open source shouldn't accept AI created code is that it can't be protected, and that has the potential to threaten the whole project. OpenClaw, for instance has an MIT license [0], but, per the creators own words, they didn't even review the code. OpenClaw isn't MIT licensed, the MIT license relies on copyright, and because there was not even human review of the majority of the code, no substantial human input, that code base can't be copyrighted. No need to steal AI code, it doesn't belong to anyone. [0] https://github.com/openclaw/openclaw?tab=MIT-1-ov-file#readme https://github.com/openclaw/openclaw?tab=MIT-1-ov-file#readm...

andriy_koval 7mo ago

> Doesn't that mean any code-base that uses AI generated code does not have an implicit copyright holder? And thus even the human constructor does not have the right to apply any license [closed/open] onto it whatsoever? besides copyright, source code also can be protected as a trade secret.

lazide 7mo ago
For a company with any decent number of people with access to the code base, extremely difficult to maintain that type of protection.
- andriy_koval 7mo ago
  I mean trade secret as a legal protection: code is declared as trade secret. Then if employee leaks it, and other company uses it, it can be sued.
  - lazide 7mo ago
    It is not that simple. To have that protection, it needs to be treated (and protected) like an actual secret. It’s why the nominal ‘top secret’ coke formula is stored in a giant vault. If everyone at the company has access (and it’s a big company), good luck having that protection.
    - andriy_koval 7mo ago
      claude says one needs to take "reasonable steps", which includes asking employee to sign NDA, setting access control, and putting TRADE SECRET disclosure in source files: https://ipwatchdog.com/2025/12/02/fourth-circuit-clarifies-reasonable-efforts-standard-dtsa-trade-secret-protection/ https://ipwatchdog.com/2025/12/02/fourth-circuit-clarifies-r...
    - shagie 7mo ago
      https://www.wipo.int/web-publications/wipo-guide-to-trade-secrets-and-innovation/en/part-iii-basics-of-trade-secret-protection.html https://www.wipo.int/web-publications/wipo-guide-to-trade-se... is likely a good source for the "what constitutes trade secret" To enjoy trade secret protection, the above mentioned three criteria (i.e., secrecy, commercial value because of the secrecy, and reasonable steps taken by trade secret holders to maintain secrecy) must be complied with (see section 2.1 for the criteria to be met). Trade secrets can be protected for an unlimited period of time, unless they cease to meet the criteria for trade secret protection. Trade secret holders can seek protection only where unauthorized disclosure, acquisition or use of their trade secrets is made in a manner contrary to honest commercial practice. In other words, they do not enjoy the type of “exclusive rights” that are generally available for other categories of IP. This will be discussed in the next section. One of the things there though is that trade secrets don't have exclusive rights. If you write code and then distribute the application, trade secrets don't protect it anymore. There's also a section on trade secrets and digital objects... which includes code ... and that gets into other challenges. https://www.wipo.int/web-publications/wipo-guide-to-trade-secrets-and-innovation/en/part-vii-trade-secrets-and-digital-objects.html https://www.wipo.int/web-publications/wipo-guide-to-trade-se... Copyright is another form of intellectual property protection available to code and algorithms. However, it should be noted that certain jurisdictions do not permit an owner to assert both trade secret and copyright, especially if the copyrighted software discloses a majority of the source code or the “proprietary” portions. In the Capricorn case, the court held that the source code owner was barred from asserting trade secret protection because the code was also registered as a copyright, and thus available to the public. Therefore, the source code owner should carefully consider the pros and cons of each type of protection. ... it also has guidance on trade secrets and LLMs. https://www.wipo.int/web-publications/wipo-guide-to-trade-secrets-and-innovation/en/part-vii-trade-secrets-and-digital-objects.html#h2-5-digital-trade-secrets-and-large-language-models-oh73d https://www.wipo.int/web-publications/wipo-guide-to-trade-se...

popalchemist 7mo ago

This would only apply if the codebase were 100% vibe coded. If there is human input - as there is in code, with the role of the software engineer, then it falls into another category for the sake of copyright arguments. And the way it works is copyright is granted automatically and only revoked/denied through litigation.

lesuorac 7mo ago

> If SCOTUS is saying that AI works, even those co-authored by humans, are not eligible for copyright/patenting; They aren't. The copyright office isn't either. Everybody is very explictly saying that if you use say Sora to generate an image and you apply for a copyright with "Sora" as the author it'll be denied. Same as if you apply for a copyright with "My Dog" as the author. Authors must be humans and if you do not fill the author field out with a human it's denied. This has nothing to do with the tool used to create the art work.

SirMadam 7mo ago
While I would like to believe you, doesn't this legal document linked by the article show that, in at least one of the cases, the author WAS trying to apply with himself, "Mr. Allen", as the author? And not the AI? https://fingfx.thomsonreuters.com/gfx/legaldocs/byprrqkqxpe/AI%20COPYRIGHT%20REGISTRATION%20decision.pdf https://fingfx.thomsonreuters.com/gfx/legaldocs/byprrqkqxpe/...
- pseudalopex 7mo ago
  Allen's case has not reached the Supreme Court. The Copyright Office said he could have copyright of what he authored. But he refused to disclaim what Midjourney generated.
deleted 7mo ago
[deleted]

scuff3d 7mo ago

Given how the models were trained for coding, every single code base that uses any code generated by an LLM should be required to be open sourced, or at least source available. I'm not saying there is currently a legal president to enforce this, I'm saying ethically it make sense.

georgemcbay 7mo ago
I pretty much agree with you in principle, but I'm also positive this will never happen.
- scuff3d 7mo ago
  Definitely not. Apparently copyright and licences only matter until a mega corporation stands to loose billions thanks to their blatant theft. Then nobody cares. But you're suppose to feel bad for pirating the latest season of Stranger Things.
  - layla5alive 7mo ago
    Its truly sad but true. Coming back to this - why do we collectively put up with this bullshit? Corruption is everywhere and we are collectively just withdrawn in defeat that we've lost and this is the inevitable state of things.. can't we do better than this?

conartist6 7mo ago

There's going to be a spectrum here, but for some of these new pilot projects like vinext where the claim is primary AI authorship I would expect the resulting works not to be copyrighted. What does that mean? I don't know. They are claiming copyright over vinext and licensing it under MIT, a copyright-based license. So the license and the copyright both get swept away in the flood there and what's left is a formerly-copyrighted software duplicated as a work [in the public domain?] [that nobody can legally use?] [that the author can legally use but not legally license?] Choose your own adventure, now with copyright law!