[thepasch]

> But the pure output of a generative model cannot be copyrighted, regardless of how complex the prompt is

If that’s how the court interpreted it, then the software industry is hosed, since that’d mean none of the generated code running in production right now is under any sort of copyright or otherwise protection, lol.

[circuit10]

I doubt that much software is entirely AI-generated with no human review or testing, it’s probably more like integrating some public domain snippets you found online into your code (which doesn’t invalidate copyright on the rest of it, or the way it’s put together) or having some files auto-generated by a script (like a C header containing a lookup table for a simple mathematical function, the table isn’t copyrightable itself maybe but the software as a whole still is)

[AnthonyMouse]

Never mind that.

If a deterministic machine transformation from a copyrightable prompt results in an uncopyrightable image, what do you think a compiler is doing to source code?

[compsciphd]

AI is not specifically not deterministic from the enduser's perspective. they throw randomness into it and hence why an exact prompt wont produce the same exact result.

a compiler on the other hand is generally pretty deterministic. The non determinism that we see in output is usually non determinism (such as generated dates) in the code that it consumes.

[AnthonyMouse]

If your argument is that compiler output is more deterministic than image generators, how does that help?

[compsciphd]

because they are just translating code (that everyone agrees is copyrightable) in a deterministic manner into another medium.

I'm not saying AI art should or shouldn't be copyrightable. One can argue the inputs into the AI generator are copyrightable, but if the output isn't deterministic translation of the input, its a different argument.

[AnthonyMouse]

The original argument was that AI works wouldn't be copyrightable because they are deterministic, i.e. are just an algorithmic transformation lacking in creativity.

[freejazz]

> human review or testing

Review and testing do not confer a copyright the work reviewed or tested

[circuit10]

I guess I was thinking more when it involves rewriting large parts of it because they don't work

[freejazz]

That would be authorship, no?

[circuit10]

It sounds like they might be under the impression that having any AI-generated output in the code even if parts are human authored would invalidate the copyright, which isn’t true

[freejazz]

>If that’s how the court interpreted it, then the software industry is hosed, since that’d mean none of the generated code running in production right now is under any sort of copyright or otherwise protection, lol.

Correct, the jurisprudence there hasn't changed.

[JeremyNT]

I'm not sure this is really true, since copyright applies to distribution.

If you have a substantial amount of backend code (as with most SaaS projects) you're never actually distributing the code, and copyright is never at play. Computer generated artifacts are already in this boat and are protected by virtue of being trade secrets not by copyright.

This could maybe be true of shipping javascript to the browser, which presumably is not going to qualify as a trande secret, but I don't think that's where most companies derive value.

[dragonwriter]

The idea that copyright applies solely to distribution is a popular myth, but it has no support in the actual copyright law. The core exclusive rights in copyright are (in the US, 17 USC § 106):

---

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

---

OTOH, distributing copies created in violation of copyright is a good way to cause legally-cognizable harms to the copyright holder that will increase the potential damage award when you are found liable for copyright infringement, and it also makes it much more likely that someone will notice the infringement in the first place. But its not where the law, on its own terms, begins to apply. Doing any of those without permission (unless it falls into one of the exceptions to copyright protection, like fair use) is a violation of copyright.

[freejazz]

>I'm not sure this is really true, since copyright applies to distribution.

Do you mean that a work has to be published prior to registration? What do you mean by "copyright applies to distribution"?

[JeremyNT]

The idea of copyright is to prohibit unauthorized use and reproduction, but none of this actually happens with a proprietary software SaaS backend. You don't actually give anybody the code - they connect to the service.

Access to the service is already governed by computer access laws, which don't depend on copyright. And if you never intentionally distributed your code outside of your org, you can call it a trade secret and nobody else has any legitimate right to access it - whether or not it is copyrightable.

There are other things that aren't copyrightable that are trade secrets already. This would be true of any kind of automated data collection for example. You couldn't copyright it but you can call it a trade secret.

And for any of that stuff, if you want to share it and limit distribution, you just have whoever wants access explicitly agree to be bound by contract law.

[freejazz]

>The idea of copyright is to prohibit unauthorized use and reproduction, but none of this actually happens with a proprietary software SaaS backend. You don't actually give anybody the code - they connect to the service.

The point isn't that you have to give it to people, but okay?

>Access to the service is already governed by computer access laws, which don't depend on copyright

Yeah, copyright doesn't control everything, and?

>There are other things that aren't copyrightable that are trade secrets already. This would be true of any kind of automated data collection for example. You couldn't copyright it but you can call it a trade secret.

Okay?

>And for any of that stuff, if you want to share it and limit distribution, you just have whoever wants access explicitly agree to be bound by contract law.

Your point being? You're just rambling assumptions about copyright and other things, which don't even track the actual law.

[JeremyNT]

> Your point being? You're just rambling assumptions about copyright and other things, which don't even track the actual law.

I'm replying to the post that claimed:

> If that’s how the court interpreted it, then the software industry is hosed, since that’d mean none of the generated code running in production right now is under any sort of copyright or otherwise protection, lol.

There is in fact "otherwise protection" for the software industry by... not distributing the code. They don't need copyright over the generated code if they vibe code a SaaS backend. Whether there's copyright or not is irrelevant for the business model.

[freejazz]

Copyright is the strongest legal protection available. It does not have a state of mind element. Breach of contract is much more complicated and context-dependent.

>There is in fact "otherwise protection" for the software industry by... not distributing the code.

Copyright protects against reverse engineering in some circumstances, for example.

>Whether there's copyright or not is irrelevant for the business model.

Yeah, I'm going to continue to disagree with you as I'm actually a litigator.

[cadamsdotcom]

“I can stop on an ant, and I can stomp on a flower, so look out, elephants”