Tag: computer-programs

Computer programs, software

Generative-AI: The Top 12 Lawsuits

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are the most significant lawsuits that have been filed so far.

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are some of the most significant lawsuits that have been filed so far.

Prompt asking ChatGPT to write a blog post in style of Thomas B James

Most of these allege copyright infringement, but some make additional or other kinds of claims, such as trademark, privacy or publicity right violations, defamation, unfair competition, and breach of contract, among others. So far, the suits primarily target the developers and purveyors of generative AI chatbots and similar technology. They focus more on what I call “input infringement” than on “output infringement.” That is to say, they allege that copyright infringement is involved in the way particular AI tools are trained.

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence, Inc.

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence Inc., No. 20-cv-613 (D. Del. 2020)

Thomson Reuters alleges that ROSS Intelligence copied its Westlaw database without permission and used it to train a competing AI-driven legal research platform. In defense, ROSS has asserted that it only copied ideas and facts from the Westlaw database of legal research materials. (Facts and ideas are not protected by copyright.) ROSS also argues that its use of content in the Westlaw database is fair use.

One difference between this case and subsequent generative-AI copyright infringement cases is that the defendant in this case is alleged to have induced a third party with a Westlaw license to obtain allegedly proprietary content for the defendant after the defendant had been denied a license of its own. Other cases involve generative AI technologies that operate by scraping publicly available content.

  • Update: The court has now issued a fair use decision in Thomson Reuters v. ROSS Intelligence. After reviewing the headnotes and comparing them with the database materials, Judge Bilbas concluded that 2,243 headnotes were sufficiently creative and original to receive copyright protection, that Ross infringed them, and that “fair use” was not a defense in this instance because the purpose of the use was commercial and it competed in the same market. This decision might have limited value as a precedent, since it involved non-generative AI. Generative AI tools may be distinguishable in the fair use analysis. The district court approved Ross’s motion for interlocutory appeal. The case is under review by the Third Circuit Court of Appeals.

Doe 1 et al. v. GitHub, Inc. et al.

Doe 1 et al. v. GitHub, Inc. et al., No. 22-cv-06823 (N.D. Calif. November 3, 2022)

This is a class action lawsuit against GitHub, Microsoft, and OpenAI that was filed in November, 2022. It involves GitHub’s CoPilot, an AI-powered tool that suggests lines of programming code based on what a programmer has written. The complaint alleges that Copilot copies code from publicly available software repositories without complying with the terms of applicable open-source licenses. The complaint also alleges removal of copyright management information in violation of 17 U.S.C. § 1202, unfair competition, and other tort claims.

Updates: The court dismissed most of the plaintiffs’ claims, but allowed them to proceed with claims for breach of open-source licenses and granted leave to amend the DMCA claims in the complaint.

Plaintiffs filed an amended complaint. The court, however, dismissed the DMCA claim, reasoning that the statute imposes an “identicality” standard (i.e., the AI’s output must be an exact, literal copy of the plaintiff’s work). Because plaintiffs alleged that Copilot’s outputs often generate modified versions of their original code rather than strict identical copies, the court dismissed the claim.

Judge Tigar certified the question whether identicality is required for interlocutory appeal to the Ninth Circuit Court of Appeals

Andersen et al. v. Stability AI et al.

Andersen et al. v. Stability AI et al., No. 23-cv-00201 (N.D. Calif. Jan. 13, 2023)

Update: Read my case update on Andresen v. Stability AI. 

  • Further Updates: As noted in my first update on Anderson v. Stability, Judge Orrick dismissed all claims except for Andersen’s direct infringement claim against Stability. Most of the dismissals, however, were granted with leave to amend.
Library of Congress housing the U.S. Copyright oFfice

Trial is scheduled for 2027.

Getty Images v. Stability AI

Plaintiffs filed an amended complaint, having secured proper copyright registrations for the underlying art. Defendants filed a motion to dismiss it. The court denied the motion. The ruling on the motion suggests that copied images scraped into the training datasets can constitute direct infringement, and that AI models may inherently constitute a continuous, new form of infringing materials. The court also allowed the artists’ claims regarding false endorsement and trade-dress infringement to proceed. These claims address AI tools mimicking an artist’s name and style.

Getty Images v. Stability AI, No. 23-cv-00135-UNA (D. Del. February 23, 2023)

Getty Images has filed two lawsuits against Stability AI, one in the United Kingdom and one in the United States, each alleging both input and output copyright infringement. Getty Images owns the rights to millions of images. It is in the business of licensing rights to use copies of the images to others. The lawsuit also accuses Stability AI of falsifying, removing or altering copyright management information, trademark infringement, trademark dilution, unfair competition, and deceptive trade practices.

Stability AI has moved to dismiss the complaint filed in the U.S. for lack of jurisdiction.

Updates: Getty voluntarily dismissed the Delaware case and refiled the lawsuit in the U.S. District Court for the Northern District of California. Getty Images v. Stability AI, No. 3:25-cv-06891 (N.D. Calif. 2025).

In 2026, Judge Thompson dismissed the DMCA claim, but allowed claims for direct copyright infringement, trademark violation, and unfair competition to proceed.

Getty Images dropped the input-infringement copyright claim that it had filed in the U.K., primarily because it could not definitively prove where the model was trained (i.e., whether it was inside or outside the UK).

The UK court rejected Getty Images’s argument that the Stable Diffusion software itself was an “infringing copy” of an article imported into the UK. The court ruled that AI model weights are not copies; they are abstract statistical parameters that do not store or reproduce actual images.

Getty Images prevailed on trademark claims in the U.K., however.

Flora et al. v. Prisma Labs, Inc.

Flora et al. v. Prisma Labs, Inc., No. 23-cv-00680 (N.D. Calif. February 15, 2023)

Jack Flora and others filed a class action lawsuit against Prisma Labs for invasion of privacy. The complaint alleges, among other things, that the defendant’s Lensa app generates sexualized images from images of fully-clothed people, and that the company failed to notify users about the biometric data it collects and how it will be stored and/or destroyed, in violation of Illinois’s data privacy laws.

Update: The court granted a motion to compel arbitration.

Young v. NeoCortext, Inc.

Young v. NeoCortext, Inc., 2023-cv-02496 (C.D. Calif. April 3, 2023)

This is a publicity rights case. NeoCortext’s Reface app allows users to paste images of their own faces over those of celebrities in photographs and videos. Kyland Young, a former cast member of the Big Brother reality television show, has sued NeoCortext for allegedly violating his publicity rights. The complaint alleges that NeoCortext has “commercially exploit[ed] his and thousands of other actors, musicians, athletes, celebrities, and other well-known individuals’ names, voices, photographs, or likenesses to sell paid subscriptions to its smartphone application, Reface, without their permission.”

NeoCortext has asserted a First Amendment defense, among others.

Update: U.S. District Judge Wesley L. Hsu denied NeoCortext’s motion to dismiss. Judge Hsu ruled that Young’s right of publicity claim was not preempted by the Copyright Act because he was seeking to vindicate the misuse of his personal likeness, not just the distribution of copyrighted images. The app’s face-swapping capabilities did not qualify as a “transformative use” defense as a matter of law at the dismissal stage.

Walters v. OpenAI, LLC

Walters v. OpenAI, LLC, No. 2023-cv-03122 (N.D. Ga. July 14, 2023) (Complaint originally filed in Gwinnett County, Georgia Superior Court on June 5, 2023; subsequently removed to federal court)

This is a defamation action against OpenAI, the company responsible for ChatGPT. The lawsuit was brought by Mark Walters. He alleges that ChatGPT provided false and defamatory misinformation about him to journalist Fred Riehl in connection with a federal civil rights lawsuit against Washington Attorney General Bob Ferguson and members of his staff. ChatGPT allegedly stated that the lawsuit was one for fraud and embezzlement on the part of Mr. Walters. The complaint alleges that Mr. Walters was “neither a plaintiff nor a defendant in the lawsuit,” and “every statement of fact” pertaining to him in the summary of the federal lawsuit that ChatGPT prepared is false. A New York court recently addressed the questions of sanctions for attorneys who submit briefs containing citations to non-existent “precedents” that were entirely made up by ChatGPT. This is the first case to address tort liability for ChatGPT’s notorious creation of “hallucinatory facts.”

In July, 2023, Jeffery Battle filed a complaint against Microsoft in Maryland alleging that he, too, has been defamed as a result of AI-generated “hallucinatory facts.” Battle v. Microsoft.

Update on Walters v. OpenAI, LLC: In 2025, the court granted summary judgment in favor of OpenAI, on three grounds:

  • No Factual Statement: The court ruled that a reasonable reader would not interpret the ChatGPT output as stating actual facts. This was heavily influenced by the AI’s internal disclaimers, its warning to the user that it lacked access to the referenced document, and the user’s own admission that he quickly verified the claim was false.
  • No Fault or Malice: To win a defamation claim as a public figure, Walters needed to prove OpenAI acted with negligent disregard for truth or “actual malice.” The court found he failed to provide evidence of either. OpenAI successfully argued that it leads the AI industry in reducing such “hallucinations” through training and human feedback.
  • Lack of Damages: The court noted Walters did not suffer provable damages or ask OpenAI for a retraction before filing, making him ineligible to recover the punitive or presumed damages he sought.

P.M. et al. v. OpenAI LP et al.

P.M. et al. v. OpenAI LP et al., No. 2023-cv-03199 (N.D. Calif. June 28, 2023)

This lawsuit has been brought by underage individuals against OpenAI and Microsoft. The complaint alleges the defendants’ generative-AI products ChatGPT, Dall-E and Vall-E collect private and personally identifiable information from children without their knowledge or informed consent. The complaint sets out claims for alleged violations of the Electronic Communications Privacy Act; the Computer Fraud and Abuse Act; California’s Invasion of Privacy Act and unfair competition law; Illinois’s Biometric Information Privacy Act, Consumer Fraud and Deceptive Business Practices Act, and Consumer Fraud and Deceptive Business Practices Act; New York General Business Law § 349 (deceptive trade practices); and negligence, invasion of privacy, conversion, unjust enrichment, and breach of duty to warn.

Update: Plaintiffs filed a voluntary dismissal.

Tremblay v. OpenAI, Inc.

Tremblay v. OpenAI, Inc., No. 23-cv-03223 (N.D. Calif. June 28, 2023)

Another copyright infringement lawsuit against OpenAI relating to its ChatGPT tool. In this one, authors allege that ChatGPT is trained on the text of books they and other proposed class members authored, and facilitates output copyright infringement. The complaint sets forth claims of copyright infringement, DMCA violations, and unfair competition.

Updates: The court dismissed claims of vicarious copyright infringement, Digital Millennium Copyright Act (DMCA) violations, negligence, and unjust enrichment. Claims for direct copyright infringement of the input kind, and unfair trade practices, survived.

The Judicial Panel on Multidistrict Litigation centralized dozens of AI copyright lawsuits against OpenAI into a single venue: U.S. District Court for the Southern District of New York under Judge Sidney H. Stein. In Re OpenAI, Inc. Copyright Infringement Litigation. Tremblay is included in this consolidation. .

Silverman et al. v. OpenAI

Silverman et al. v. OpenAI, No. 23-cv-03416 (N.D. Calif. July 7, 2023)

Sarah Silverman (comedian/actress/writer) and others allege that OpenAI, by using copyright-protected works without permission to train ChatGPT, committed direct and vicarious copyright infringement, violated section 17 U.S.C. 1202(b), and their rights under unfair competition, negligence, and unjust enrichment law.

Updates: In February 2024, U.S. District Judge Araceli Martínez-Olguín issued a joint ruling covering both the Tremblay and Silverman motions to dismiss. The court dismissed claims of vicarious copyright infringement, negligence, and unjust enrichment, but allowed the input infringement claim to proceed. OpenAI did not contest that using the plaintiffs’ books to train its Large Language Models (LLMs) required a “fair use” determination

On June 25, 2025 Judge Chhabria issued a ruling on fair use. The court granted Meta’s motion for summary judgment on fair use with respect to AI training; reserved the motion for summary judgment on the DMCA claims for decision in a separate order, and held that the claim of infringing distribution via leeching or seeding “will remain a live issue in the case.”

The case has been consolidated into the broader Multidistrict Litigation (MDL) pending in the Southern District of New York.

Kadrey et al. v. Meta Platforms

Kadrey et al. v. Meta Platforms, No. 2023-cv-03417 (N.D. Calif. July 7, 2023)

The same kinds of allegations as are made in Silverman v. OpenAI, but this time against Meta Platforms, Inc.

Update: There has been a ruling in Kadrey v. Meta Platforms. 

J.L. et al. v. Alphabet Inc. et al.

J.L. et al. v. Alphabet Inc. et al. (N.D. Calif. July 11, 2023)

This is a lawsuit against Google and its owner Alphabet, Inc. for allegedly scraping and harvesting private and personal user information, copyright-protected works, and emails, without notice or consent. The complaint alleges claims for invasion of privacy, unfair competition, negligence, copyright infringement, and other causes of action.

Update: Plaintiffs voluntarily dismissed defendants Alphabet Inc. and Google DeepMind. Google LLC remains the sole defendant, and the litigation—now tracked as In re Google Generative AI Copyright Litigation—is proceeding.

On the regulatory front

The U.S. Copyright Office is examining the problems associated with registering copyrights in works that rely, in whole or in part, on artificial intelligence. The U.S. Federal Trade Commission (FTC) has suggested that generative-AI implicates “competition concerns.”. Lawmakers in the United States and the European Union are considering legislation to regulate AI in various ways.

Update on Copyright Office Reports: The Copyright Office has issued reports in three parts:

Part 1: Digital Replicas

Released on July 31, 2024, this initial part addresses the unauthorized use of AI to realistically replicate an individual’s voice or appearance (e.g., deepfakes and AI-generated music tracks mimicking famous artists). The Copyright Office recommends that Congress enact a new federal law to protect individuals from unauthorized digital replica distributions. See Copyright and Artificial Intelligence Part 1 -Digital Replicas.

Part 2: Copyrightability

This Report addresses whether and to what extent AI-generated output is protected by copyright. Key findings and conclusions:

  • Prompts are Insufficient: Text prompts generally function merely as instructions to convey unprotectable ideas. Because a user does not exercise ultimate creative control over how the AI generates the final material, prompts alone do not establish human authorship.
  • AI as a Creative Tool: If a human author maintains sufficient control over the expressive elements, the work can be protected. For example, if a creator inputs their own hand-drawn art and uses AI to refine it, the original perceptible human work remains copyrightable.
  • Modifications and Arrangements: Humans can claim copyright over the creative selection, coordination, arrangement, or expressive modification of AI-generated content. However, protection only applies to the human-contributed elements, not the AI-generated parts. The Copyright Office mandates transparency. Authors submitting registration applications have a duty to disclose and disclaim any AI-generated content within their applications that is more than minor (de minimis)
  • No New Laws Needed: The Office concluded that existing legal frameworks are flexible enough to evaluate AI cases on a case-by-case basis without need for new legislation.

See Copyright and Artificial Intelligence Part 2 – Copyrightability.

Part 3. Generative-AI Training

This report deals with copyright issues associated with the use of copyrighted works in generative-AI training, especially input infringement.

  • Fair Use Limitations: Using commercial troves of copyrighted works to build models that directly compete with original authors likely stretches past fair use boundaries.
  • The Role of Licensing: The Office highlighted that voluntary licensing markets are already actively emerging across the music and news sectors.

See Copyright and Artificial Intelligence Part 3 – Generative AI Training.

For more updates, see my full AI Lawsuits Roundup.”

For a wealth of information about copyright law, visit my extensive Copyright FAQs page.

The New Copyright Circumvention Rules

the DMCA made it unlawful to “circumvent a technological measure that effectively controls access to” copyrighted material.

In 1998, Congress enacted the Digital Millenium Copyright Act (“DMCA”). In addition to establishing the notice-and-take-down regimen with which website and blog owners are (or should be) familiar, the DMCA made it unlawful to “circumvent a technological measure that effectively controls access to” copyrighted material. (17 U.S.C. § 1201(a)(1)(A)). The Act set out some permanent exemptions, i.e., situations where circumvention is allowed. In addition, it gave the Librarian of Congress power to periodically establish new ones. These additional exemptions are temporary, lasting for three years, but the Librarian of Congress can and does renew them. On October 18, 2024, the Librarian of Congress issued a Final Rule renewing some exemptions and creating some new ones.

What is “circumvention of a technological measure”?

Circumventing a technological measure means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” (17 U.S.C. § 1201(a)(3)(A)).

So, no decrypting or unscrambling to get access to a copyrighted work. What else? Well, anything that involves avoiding or bypassing a technological measure without the copyright owner’s permission. You can’t do that, either.

A technological measure that “controls access to a work” can be anything that “requires the application of information, or a process or a treatment, with the authority of the copyright owner,” to gain access to the work.” (17 U.S.C. § 1201(a)(3)(B)). Entering a password-protected website without a password the copyright owner has authorized you to use is an example.

The permanent exemptions

Section 1201 of Title 17 lists permanent exemptions for:

  • Nonprofit libraries, archives, and educational institutions that circumvent copyright protection measures solely for the purpose of determining whether to acquire a copy of the work for a permitted purpose
  • Law enforcement, intelligence, and government activities
  • Reverse engineering
  • Encryption research
  • Prevention of access of minors to material on the Internet
  • Prevention of the collection or dissemination of personally identifying information
  • Security testing

Detailed conditions apply to each of these exemptions. If you are thinking of invoking one of them, read the entire statutory provision carefully and seek professional legal advice.

Renewed temporary exemptions

The following temporary exemptions have been renewed for another 3-year term:

  • Fair use of short portions of motion pictures for certain educational and derivative uses

This includes use in a parody or in a documentary film about the work’s biographical or historically significant nature; use in a noncommercial video; use in nonfiction multimedia e-books; use for educational purposes by educational institution faculty and students; educational uses in Massive Open Online Courses; and educational uses in nonprofit digital and media literacy programs offered by libraries, museum, and other organizations.

  • Closed captioning and other disability access services by disability service offices or similar units at educational institutions for students, faculty or staff with disabilities
  • Preservation of copies of motion pictures by an eligible library, archives, or museum
  • Scholarly research and teaching involving text and data mining of motion pictures or electronic literary works by researchers affiliated with a nonprofit educational institution
  • Literary work or previously published sheet music that is distributed electronically and include access controls that interfere with assistive technologies
  • Access to patient data on medical devices or monitoring systems
  • Computer programs that unlock wireless devices to allow connection of a device to an alternative wireless network
  • “Jailbreaking” computer programs (computer programs that enable electronic devices to interoperate with or to remove software applications), for the purpose of jailbreaking smartphones and other portable all-purpose computing devices, smart televisions, voice assistant devices, and routers and dedicated networking devices
  • Computer programs that control motorized land vehicles, marine vessels, and mechanized agricultural vehicles for the purposes of diagnosis, repair, or modification of a vehicle or vessel function
  • Diagnosis, maintenance or repair of devices designed primarily for use by consumers
  • Access to computer programs that are contained in and control the functioning of medical devices or systems, and related data files, for purposes of diagnosis, maintenance, or repair
  • Security research
  • Individual play by video gamers and preservation of video games by a library, archives or museum for which outside server support has been discontinued, and preservation by a library, archives, or museum of discontinued video games that never required server support
  • Preservation of computer programs by libraries, archives, and museums
  • Computer programs that operate 3D printers to allow use of alternative material
  • Investigation of potential infringment of free and open-source computer programs

Again, detailed conditions apply to each of these exemptions. If you are thinking of invoking one of them, read 37 CFR Part 201e carefully and seek professional legal advice.

front view of the Library of Congress building

New Exemptions

New 3-year exemptions the Librarian of Congress just announced in October, 2024 include:

  • Sharing of copies of corpora by academic researchers with researchers affiliated with other nonprofit institutions of higher education for purposes of conducting independent text or data mining research and teaching, where those researchers are in compliance with the exemption
  • Diagnosis, maintenance and repair of retail-level commercial food preparation equipment
  • Access, storage and sharing of vehicle operational and telematics data generated by motorized land vehicles and marine vessels

And once again, detailed conditions apply to each of these exemptions. If you are thinking of invoking one of them, read 37 CFR Part 201e carefully and seek professional legal advice.


Read about other non-AI-related legal issues. 

Confused by copyright, trademark and other IP issues? Visit my extensive Copyright FAQs page, or read my book, IP Law for Non-IP Attorneys, available on Amazon.com. Read information about Thomas B. James.

 

A Recent Entrance to Complexity

The United States Copyright Office recently reaffirmed its position that it will not register AI-generated content, because it is not created by a human. The rule is easy to state; the devil is in the details. Attorney Thomas James explains.

Last year, the United States Copyright Office issued a copyright registration to Kristina Kashtanova for the graphic novel, Zarya of the Dawn. A month later, the Copyright Office issued a notice of cancellation of the registration, along with a request for additional information.

The Copyright Office, consistent with judicial decisions, takes the position that copyright requires human authorship. The Office requested additional information regarding the creative process that resulted in the novel because parts of it were AI-generated. Kashtanova complied with the request for additional information.

This week, the Copyright Office responded with a letter explaining that the registration would be cancelled, but that a new, more limited one will be issued. The Office explained that its concern related to the author’s use of Midjourney, an AI-powered image generating tool, to generate images used in the work:

Because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output”

U.S. Copyright Office letter

The Office concluded that the text the author wrote, as well as the author’s selection, coordination and arrangement of written and visual elements, are protected by copyright, and therefore may be registered. The images generated by Midjourney, however, would not be registered because they were “not the product of human authorship.” The new registration will cover only the text and editing components of the work, not the AI-generated images.

Stephen Thaler's AI-generated artwork, "A Recent Entrance to Paradise"

A Previous Entrance to Paradise

Early last year, the Copyright Office refused copyright registration of an AI-generated image. Steven Thaler had filed an application to register a copyright in an AI-generated image called “A Recent Entrance to Paradise.” He listed himself as the copyright owner. The Copyright Office denied registration on the grounds that the work lacked human authorship. Thaler filed a lawsuit in federal court seeking to overturn that determination. The lawsuit is still pending. A motion for summary judgment has been filed.

For an update on this case, read A Recent Exit from Paradise. 

The core issue

The core issue, of course, is whether a person who uses AI to generate content such as text or artwork can claim copyright protection in the content so generated. Put another way, can a user who deploys artificial intelligence to generate a seemingly expressive work (such as artwork or a novel) claim authorship? (See AI can create, but is it art?)

This question is not as simple as it may seem. There can be 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. Text and images can be generated by these systems with minimal human input. If the only human input is a user’s directive to “Write a story” or “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.

Peering into the worm can

The complicating consideration with content-generative AI mechanisms is that they have the potential to allow many different levels of user involvement in the generation of output. The more details a user adds to the instructions s/he gives to the machine, the more it begins to appear that the user is, in fact, contributing something creative to the project.

Is a prompt to “Write a story about a dog” a sufficiently creative contribution to the resulting output to qualify the user as an “author”? Maybe not. But what about, “Write a story about a dog who joins a travelling circus”? Or “Write a story about a dog named Pablo who joins a travelling circus”? Or “Write a story about a dog with a peculiar bark that begins, ‘Once upon a time, there was a dog named Pablo who joined a circus,’ and ends with Pablo deciding to return home”?

At what point along the spectrum of user-provided detail does copyright-protectable authorship come into existence?

A question that is just as important to ask is: How much, if at all, should the Copyright Office involve itself with ascertaining the details of the creative process that were involved in a work?

In a similar vein, should copyright registration applicants be required to disclose whether their works contain AI-generated content? Should they be required to affirmatively disclaim rights in elements of AI-generated content that are not protected by copyright?

Expanding the Rule of Doubt

Alternatively, should the U.S. Copyright Office adopt something like a Rule of Doubt when copyright is claimed in AI-generated content? The Rule of Doubt, in its current form, is the rule that the U.S. Copyright Office will accept a copyright registration of a claim containing software object code, even though the Copyright Office is unable to verify whether the object code contains copyrightable work. If effect, if the applicant attests that the code is copyrightable, then the Copyright Office will assume that it is and will register the claim. Under 37 C.F.R. § 202.20(c)(2)(vii)(B), this may be done when an applicant seeks to register a copyright in object code rather than source code. The same is true of material that is redacted to protect a trade secret.

When the Office issues a registration under the Rule of Doubt, it adds an annotation to the certificate and to the public record indicating that the copyright was registered under the Rule of Doubt.

Under the existing rule, the applicant must file a declaration stating that material for which registration is sought does, in fact, contain original authorship.

This approach allows registration but leaves it to courts (not the Copyright Office) to decide on a case-by-case basis whether material for which copyright is claimed contains copyrightable authorship.  

Expanding the Rule of Doubt to apply to material generated at least in part by AI might not be the most satisfying solution for AI users, but it is one that could result in fewer snags and delays in the registration process.

Conclusion

The Copyright Office has said that it soon will be developing registration guidance for works created in part using material generated by artificial intelligence technology. Public notices and events relating to this topic may be expected in the coming months.

Visit my extensive Copyright FAQs page.

Need help with a copyright matter? Contact attorney Thomas James.