by guest blogger Heather Whitney
To the surprise of no one, a D.C. district court granted summary judgment for the Copyright Office in Thaler v. Perlmutter, No. 1:22-cv-01564 (D.D.C. Aug. 18, 2023), affirming the Copyright Office’s position that “a work generated entirely by an artificial system absent human involvement [is not] eligible for copyright.” U.S. copyright law protects only works of human authorship, and the defendant, Stephen Thaler, expressly told the Copyright Office that the work at issue, titled “A Recent Entrance to Paradise,” “lack[ed] traditional human authorship.” Eric previously blogged about the Copyright Review Board’s affirmance of the Office’s repeated refusal to register the work back in March 2022.
The Thaler decision is unlikely to have any great impact. There aren’t many people trying to register works “autonomously created by a computer algorithm running on a machine” and disclaiming any human authorship at the outset. The much harder question of “how much human input is necessary to qualify the user of an AI system as the ‘author’ of a generated work” was not before the court. That said, while not presented with the question of how much human input is enough, the court’s dicta arguably suggests that it thinks there is some amount of human input to a generative AI tool that would render the relevant human an author of the resulting output.
This post focuses on the district court’s reasoning. However, before getting to Thaler, it’s worth pausing to underscore the impact that the answer to this harder human-authorship-of-works-created-using-generative-AI question will have.
Take the software industry. Coding assistants like GitHub Copilot, which can auto-complete code, are used by a lot of developers to generate a lot of code. Microsoft’s CEO, Satya Nadella, said last month that 27,000 companies are paying for a GitHub Copilot enterprise license. Just think about how many engineers are using coding assistants without their employers paying for it (or knowing about it). As of February 2023, GitHub announced that, for developers using Copilot, Copilot is behind 46% of the “developers’” code across all programming languages and 61% of all code written in Java. Those percentages are only going to go up as these tools get better, and companies are currently competing to provide the go-to coding assistant tool that developers will use.
But if developers aren’t the “authors” of code they create using coding assistants (and they aren’t adding copyrightable expression to the assistant-generated code after the fact) and the bulk of a company’s proprietary code is generated by a coding assistant, that means the bulk of a company’s proprietary code is not protected by copyright. Regardless of one’s views on the extent to which copyright should protect code, that it might not protect the majority of code created moving forward is a big (and underappreciated) deal.
Thaler Decision: “Works of (Human) Authorship”
The Progress Clause of the Constitution gives Congress the power to “promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings[.]” U.S. Const. art. I § 8, cl. 8. Pursuant to this authorization, the Copyright Act extends copyrights to “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). The Copyright Act neither defines “authorship” nor “works of authorship.” That said, something cannot be a work of authorship without being the work of at least one author, if for no other reason than t
