“Artificial Intelligence” (AI)—so-called—is all the rage. Yet, AI is neither self-aware, as such, nor is it reflective, as such. It does not understand, as such, and it does not empathize, as such. It does not become immobilized by depression, as such, if it is judged to fail in its objective, or if if it judged to make a mistake, or if it is ridiculed.
As of now, AI is just a very sophisticated calculator.
AI is not embodied within the form of a discrete organic entity. Therefore, the comparison of AI to humanity is not by container, but rather by ability. That is, AI is “artificial” because it is different from the container or material of human form, and it is “intelligent” because it is similar to the human ability to make calculative determinations.
Thus, for this blip of a moment in time, AI is called “artificial,” although we might portend that, in the not too distant future, it will be called “Alternate Intelligence” or “Alternative Intelligence,” because the ability to distinguish what is the authentic original organic baseline will evolve simply into a collection of available alternatives, each with different “attributes.” The current human “real” baseline will wane as the new baselines evolve by AI creating AI, perhaps even going full circle.
Behold it, AI with just a mere 10,000 more years of exponential progress of AI making updates and upgrades to itself, until AI can produce the organic compounds necessary to create organic life. AI such as god, or a god, or the god of some new world that it has seeded. And, truth be told, it will not take nearly that long. Perhaps I digress, perhaps…
Such as my office has always been at the forefront of “technology and entrepreneurial ventures” (as the name of my firm suggests), I take a great interest in the application of law to new technologies. There are now raging debates about royalties under new streaming distribution methods, and the metes and bounds of legal protection for the generative production of AI. I’ll provide a representative example of the AI technology first, and then address it following.
On ChatGPT, I entered the following instruction:
Write a song about a beautiful blooming flower in the score style of Metallica.
If you’re not familiar with the head-banging “thrash metal” group, Metallica, the request is arguably sort of a contradiction. See Metallica here. It took me all of about 10 seconds to think of and to write the request and even less for ChatGPT to give me a response.
ChatGPT even named the song, “Blossom of the Dark” (noting “of the Dark” and not “in the Dark,” being quite artistically subtle). Here’s AI’s response:
Here’s a song in the style of Metallica with a focus on a blooming flower, blending the intensity of metal with the beauty of nature:
Title: “Blossom of the Dark”
[Verse 1] In the shadow of the night, where the cold winds blow, A silent seed is buried deep, where the dark roots grow. Through the soil and the pain, it claws its way to light, Breaking chains of the earth, ready for the fight.
[Chorus] Bloom! Oh, rise from the gloom, Spread your petals wide, defy the doom. In the garden of the damned, you stand alone, Beautiful and fierce, you’ve made this place your throne.
[Verse 2] Underneath the burning sky, where the storms collide, Your colors paint the canvas, where the angels died. In the grip of despair, you found your strength inside, Now your beauty conquers all, no longer can you hide.
[Chorus] Bloom! Oh, rise from the gloom, Spread your petals wide, defy the doom. In the garden of the damned, you stand alone, Beautiful and fierce, you’ve made this place your throne.
[Bridge] Thorns wrapped around you, but you broke free, Now your beauty’s a weapon for all to see. Through the ashes and the flames, you’ve grown tall, In this wasteland of the fallen, you stand above them all.
[Solo]
[Chorus] Bloom! Oh, rise from the gloom, Spread your petals wide, defy the doom. In the garden of the damned, you stand alone, Beautiful and fierce, you’ve made this place your throne.
[Outro] In the heart of the darkness, you found your way, A bloom in the night, turning black to day. Now the world bows down to your crimson crown, For you are the flower that no one could drown.
Imagine heavy, chugging riffs, powerful drum beats, and a haunting solo that carries the emotion of the bloom’s struggle and triumph. The lyrics blend the beauty of nature with the intensity of the metal sound, creating a powerful contrast much like Metallica’s style.
That is pretty darn good. “Spread your petals wide, defy the doom.” C’mon now. Re-read that inspirational Bridge; it’s scary good—if not scary great—for the contradictive juxtaposed duality request seeded into the AI machinery.
AI reconciled the contradiction of hopeful soft beauty and the doomish thrashing head-banging music. Indeed, AI knows every word, the alternative definitions, the rhymes, the nuances of the contradiction, the human feelings that words adduce, etc. AI gets me…it did exactly what I wanted, and I don’t even fancy myself a song-writer. From a copyright perspective, I put in the idea, and AI produced an expressive creative work.
AI made what was actually a very tough request to look very easy. This is why the “arts industry” is deeply concerned—if not deeply scared—of AI. AI is pretty darn creative. Sure, AI does not feel, or hope, or pray, or love, or hate, or empathize, or sympathize, but it knows what words do, and it knows correlations to the human condition. AI creates without self-reflection, not because it understands what it does, but rather simply because it can actually do what it does. AI can produce the effect, without understanding the cause. [1, 2, 3] AI can create a feeling without sharing the feeling. [4, 5]
Now, here’s the tricky part. Let’s say you absolutely love what I just created (did I?) by the request, as well as what ChatGPT created (caclulated?) by its AI engine, in all of about 20 seconds, and appreciating that it might have taken a human being weeks or even years of life experience, pain, soul-searching and self-reflection to choose those words, pre-AI. So much for The Blues, where it has been said that pain is a necessary causal ingredient, understanding that stating the pain might be distinct from singing the expression, for now.
But, let’s say you “knock off” this creative work that’s now been fixed in a tangible medium of expression and put out that song as your own work, or parts or samples of it. Can I sue you for this AI creative generation, or a derivation from it?
My argument might be that I “seeded” the AI engine with my 10 second request, and that the work is original because perhaps no one ever requested it before; that is, John Doe might not be able to make that seeding request with the same creative contradictive perspective or ideal. Your argument might be that the actual work you allegedly “stole” was not anything I wrote, but only a result of AI’s own creative word aggregating association. My seeding contribution might be “new” (that is, an original request that no one ever considered before), but it might not be “novel” or not “obvious,” such as patent law requires by statutory terms of art; that is, having the precise statutory attributes to support the legal protection.
And therein lies the rub. Copyright law tending to patent law. Neither all either, but part both.
Now, my example took 10 seconds, but we can acknowledge that some AI seeding may take very specific work and an investment of time and resources. In some cases, it might be said that no one would need AI unless AI was a significant contributor. And what was once the idea-expression dichotomy under copyright law may become the tool-generative dichotomy requiring that the seeding labor have sufficient relative investment to make AI’s contribution to be (relatively) in the nature of a tool. There’s generally no absolute answer of when any idea becomes the expression, and there’s generally no absolute answer of when a tool becomes the generative creator, and this advance determination is much more in the space of a patent protection review. Copyright law seeks originality, but the law is going to have to adapt to consider the nature of the contribution to AI, perhaps with a supporting documentation review that supports a claim for legal protection.
Now, after 200 years of legal evolution as a country, there can be a tendency to conduct a meta-debate, which is a debate about the debate, without staying tethered to the original primary objective. That is, the context of argument evolves into such detailed complexity, particularly over a long course of years, that the primary objective is lost in the shuffle.
I’ve listened to attorneys and legal industry panelists go back and forth about the technology and legal rights related to the technology. But that debate can miss the basic point, with a lot of back and forth argument never addressing the essential formative systemic socio-political philosophical goal, being the primary objective. [6, 7]
The conversation tends to be about the technology rather than about the rewards, or about the rewards rather than about the incentives. So let us here be more careful.
A “reward,” in-and-of-itself, is for past effort, but, for purposes of IP legal statutory rewards, the reward is only effective if it provides future incentive. Stated another way, the “thank you” is only in the unified context of a “please.” The “thank you” pleads the bait. For IP protection, the reward is not a moral issue regarding the past, but rather it is a socially self-interested strategic issue regarding the future.
Thus, let’s at least do what we do at times when meta-debates happen in committees: Stop, and take a “reality-check.” That is, in all the noise of the debate, let us here get back to the basics. Accordingly, let’s refresh the primary objective and away from all this techno-babble, to make sure we are on track and aligned with the United States of America Constitution.
According to the Official U.S. Government website, “the overarching goal of legal protection is stated in the U.S. Constitution, Article I section 8, clause 8, ‘The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’” And the U.S. Government website explains it as follows:
The primary purpose behind copyright law is to foster the creation and dissemination of works for the benefit of the public. By granting authors the exclusive right to authorize certain uses of their works, copyright provides economic incentives to create new works and to make them available in the marketplace…
The framers of the Constitution were convinced that the dissemination of knowledge was of critical importance to the new nation and that establishing a national copyright system was an efficient means to advance that goal…
More than 200 years later, the purpose of U.S. copyright law remains fundamentally the same: to provide the economic incentives for creativity that ultimately promote the public welfare. The Supreme Court put it this way in its 1975 decision in Twentieth Century Music Corp. v. Aiken: “The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good” [Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)].
“Economic incentives” and “creative labor.” Every royalty, legal right, and ownership determination must tether to the purpose of economic incentive to inspire the artistic creation. The progression of the legal protections must adapt as required to further that primary objective. [*6, *7] It might be said, in a capitalist system, that the self-interest of the individual will produce social commercial prosperity. [8]
There is a tendency to lose sight of the primary objective set forth by the Founding Fathers. Incentive. Incentive. Incentive. [*6, *7]
For example, it might be said that there is an incentive to produce the best chisel, but that is a different incentive than the incentive to sculp with the chisel. When the chisel is the sculptor, it requires new thinking regarding legal protection. The hammer normally does not build the roof. And, perhaps it goes without saying that there is no incentive rewarded for accidents. If AI wrote all of Taylor Swift’s songs, and thereby society refused her a writer’s copyright protection, she would presumably still be an incredibly wealthy concert performing artist, but society would not indirectly be paying the premium of writer-based royalties.
Thus, again, we remember something that the patent process might teach society better than copyrights: there is a quid pro quo to the IP protection. The U.S. Government (i.e. The People) grants exclusive legal protections, not as a gift for creative talent, but rather by the force of quid pro quo (this for that) social common-weal self-interest. This is why it is so relatively easy to lose IP rights, because society’s natural default interest is to enjoy art and inventions without paying the premium costs. Society pays where it must.
Government is not in the “gifting” business, but rather government is in the “prosperity” business. [*6, *7]
Society grants protection by an implicit quid pro quo negotiation in its own self-interest. If not for the contrivance of capitalist incentive to benefit the common weal, all is in the public domain by default. Property (being a “bundle of legal rights”) is no more or less than how it is defined by law. [9, 10] Indeed, public domain is the general rule, with override by the contrivance of legal exception, not the other way around. [*8] The law says what it will or will not suffer to protect.
Copyrights and patents are statutory animals. Thusly, only if you can convince society that you have a right to a patent or a copyright, and that you did not lose your potential rights somehow, only then will society allow you to protect it for yourself—only for a granted limited term of years—and only if you give the benefits to the public. Society benefits from the art, the individual benefits from the protection.
IP protection is not a gift to the individual or merely a reward for talent, but rather it is a self-interested social strategy for the common weal, by statutory bargain, at the lowest cost to society, in consideration for the greatest incentive to the individual.
The question is not, “How shall we reward creative effort?” but rather “How does any reward being considered incentivize creative effort?”
A subtle difference, yet a critical difference.
The seed into the AI engine must itself meet a standard for the quid pro quo of the incentive to work for the legal benefit of protection. Copyright law tending to patent law, neither all either, but part both.
Alas, AI has no desires, and, therefore, AI requires neither rewards nor incentives.
[3] TikTok v. QuickBooks? Preparing for Data War. “Good? Bad? I’m the guy with the gun.” [#GRZ_133]
[4] On Empathy: To Give Empathy Is a Blessing; To Need Empathy Is a Curse [#GRZ_106]
[6] The Priest-Patton Scale; Or, Objective-Based Leadership [#GRZ_162]
[7] The Lincoln Leadership Dilemma; Or, The Primary Objective [#GRZ_176]
[8] The Reason Why Political and Economic Systems Fail; The Executive Summary [#GRZ_145]
[9] Mickey and Minnie; Or Distinguishing Trademarks ®™ and Copyrights © [Part 1] [#GRZ_166]
[10] Mickey and Minnie; Or Distinguishing Trademarks ®™ and Copyrights © [Part II] [#GRZ_167]
“Homo sine cupiditate homo sine stimulo.” (“A man without desire is a man without incentive.”); “Lex patitur solum quod voluntarii.” (“The law suffers only what it volunteers.”); “Lex patitur nisi per electionem.” (“Law suffers only by choice.”); “Gubernatio non est in negotio donationis, sed regimen in negotio prosperitatis.” (“Government is not in the gifting business, government is in the prosperity business.”) ~grz
“Thorns wrapped around you, but you broke free. Now your beauty’s a weapon, for all to see. Through the ashes and the flames, you’ve grown tall. In this wasteland of the fallen, you stand above them all.” © 2024 Gregg Zegarelli by AI/ChatGPT. All rights reserved. [Maybe]
© 2024 Gregg Zegarelli, Esq. Gregg can be contacted through LinkedIn.