A.T. v. OpenAI LP, U.S. District Court for the Northern District of California
Last June, Microsoft, OpenAI and others were hit with a class action lawsuit involving their AI data-scraping technologies. P.M. et al. v. OpenAI et al. On Tuesday (September 5, 2023) another class action lawsuit was filed against them. (A.T. et al. v. OpenAI et al.) The gravamen of both of these complaints is that these companies allegedly trained their AI technologies using personal information from millions of users, in violation of federal and state privacy statutes and other laws.
Among the laws alleged to have been violated are the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the California Invasion of Privacy Act, California’s unfair competition law, Illinois’s Biometric Information Privacy Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act. The lawsuits also allege a variety of common law claims, including negligence, invasion of privacy, conversion, unjust enrichment, breach of the duty to warn, and such.
This is just the most recent lawsuit in a growing body of claims against big AI. Many involve allegations of copyright infringement, but privacy is a growing concern. This particular suit is asking for an award of monetary damages and an order that would require the companies to implement safeguards for the protection of private data.
Microsoft reportedly has invested billions of dollars in OpenAI and its app, ChatGPT.
In his application for registration, Thaler had listed his computer, referred to as “Creativity Machine,” as the “author” of the work, and himself as a claimant. The Copyright Office denied registration on the basis that copyright only protects human authorship.
Over a year ago, Steven Thaler filed an application with the United States Copyright Office to register a copyright in an AI-generated image called “A Recent Entrance to Paradise.” In the application, he listed a machine as the “author” and himself as the copyright owner. The Copyright Office refused registration on the grounds that the work lacked human authorship. Thaler then filed a lawsuit in federal court seeking to overturn that determination. On August 18, 2023 the court upheld the Copyright Office’s refusal of registration. The case is Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236 (D.D.C. Aug. 18, 2023).
The Big Bright Green Creativity Machine
In his application for registration, Thaler had listed his computer, referred to as “Creativity Machine,” as the “author” of the work, and himself as a claimant. The Copyright Office denied registration on the basis that copyright only protects human authorship.
The court ultimately sided with the Copyright Office. In its decision, it provided a cogent explanation of the rationale for the human authorship requirement:
The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception. Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.
As I discussed in A Recent Entrance to Complexity, the issue is not as simple as it might seem. There are different levels of human involvement in the use of an AI content-generating mechanism. At one extreme, there are programs like “Paint,” in which users provide a great deal of input. These kinds of programs may be analogized to paintbrushes, pens and other tools that artists traditionally have used to express their ideas on paper or canvas. Word processing programs are also in this category. It is easy to conclude that the users of these kinds of programs are the authors of works that may be sufficiently creative and original to receive copyright protection.
At the other end of the spectrum are AI services like DALL-E and ChatGPT. These tools are capable of generating content with very little user input. If the only human input is a user’s directive to “Draw a picture,” then it would be difficult to claim that the author contributed any creative expression. That is to say, it would be difficult to claim that the user authored anything.
The difficult question – and one that is almost certain to be the subject of ongoing litigation and probably new Copyright Office regulations – is exactly how much, and what kind of, human input is necessary before a human can claim authorship. Equally as perplexing is how much, if at all, the Copyright Office should involve itself in ascertaining and evaluating the details of the process by which a work was created. And, of course, what consequences should flow from an applicant’s failure to disclose complete details about the nature and extent of machine involvement in the creative process.
Conclusion
The court in this case did not dive into these issues. The only thing we can safely take away from this decision is the broad proposition that a work is not protected by copyright to the extent it is generated by a machine.
People are generating books “in the style of” books by well-known authors and marketing them to the public
Copyright issues raised by generative-AI (artificial intelligence) have been receiving extensive coverage and discussion lately. See,e.g., Generative-AI: The Top 12 Lawsuits. Generative-AI has given rise to another kind of problem, too, though. People are generating books “in the style of” those by well-known authors and marketing them to the public as if they were written by those authors when in fact they were not.
Fake books
Jane Friedman was one of the first to report the problem of AI-generated fake books.
It can be difficult for an author to get these knock-offs removed. Of course, if you are able to prove that one of these sham books infringes the copyright in one of your works, that should provide a basis for removal. In many cases, however, it can be difficult to prove that an AI-generated book actually copied from any particular book. A book “in the style of” so-and-so might have a completely different setting, plot, characters and so on. Generative-AI tools can generate a book on a theme that a named author commonly writes about, but copyright cannot be claimed in themes.
Trademark law is not necessarily of much help, either. Publishing under a name under which someone else is already publishing is not illegal. In fact, it is quite common. For example, five different people named Scott Adams publish under that name.
The sham books not being pirated or counterfeit copies of any existing work, and an author not having secured a trademark registration in his or her name (not always possible), can be obstacles to getting a title removed on the basis of copyright or trademark infringement.
The Lanham Act
The Lanham Act, sometimes called the Trademark Act, is a federal law that prohibits a wider range of activity than merely trademark infringement. It prohibits false and misleading designations of origin (false advertising), as well, including attempts to pass off a product as somebody else’s. No trademark registration is necessary for these kinds of Lanham Act claims.
These provisions offer a small glimmer of hope. Unfortunately, these kinds of claims are not as easy for marketplace providers like Amazon to sort out, as compared with a claim that someone is using a trademark that is confusingly similar to one that has been registered.
Other legal remedies
The Copyright Act and Lanham Act are not the only possible sources of legal recourse. Book authorship fraud is likely unlawful under state unfair competition and deceptive trade practices laws. In many jurisdictions, a claim for damages for misappropriation of name or likeness, or of exclusive publicity rights, may be viable.
As a practical matter, though, these rights may be difficult to enforce. Marketplace providers are equipped to handle claims where someone is able to produce a trademark or copyright registration certificate to support their claims, but they are not courts. They are not equipped to decide the kinds of fact issues that typically need to be decided in order to resolve competing claims to rights in a work, or likelihood of confusion and so on.
The problem of sham book production is an instance of copyright output infringement, one of the top 3 generative-AI issues in copyright law. It seems to be yet another aspect of generative-AI that is ripe for legislation.
Photograph by Martin Vorel, https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons. The image has not been modified. No suggestion is made that the licensor endorses this author or this use.
