Copyright Guide: Subscribe to News

Is A.I. the Death of I.P.? | The New Yorker

But every right is also a prohibition. My right of ownership of some piece of intellectual property bars everyone else from using that property without my consent. I.P. rights have an economic value but a social cost. Is that cost too high?

I.P. ownership comes in several legal varieties: copyrights, patents, design rights, publicity rights, and trademarks. And it’s everywhere you look. United Parcel Service has a trademark on the shade of brown it paints its delivery trucks. If you paint your delivery trucks the same color, UPS can get a court to make you repaint them. Coca-Cola owns the design rights to the Coke bottle: same deal. Some models of the Apple Watch were taken off the market this past Christmas after the United States International Trade Commission determined that Apple had violated the patent rights of a medical-device firm called Masimo. (A court subsequently paused the ban.)

...

Bellos, a comparative-literature professor at Princeton, and Montagu, an intellectual-property lawyer, find this kind of rent-seeking objectionable. They complain that corporate copyright owners “strut the world stage as the new barons of the twenty-first century,” and they call copyright “the biggest money machine the world has seen.” They point out that, at a time when corporate ownership of copyrights has boomed, the income of authors, apart from a few superstars, has been falling. They think that I.P. law is not a set of rules protecting individual rights so much as a regulatory instrument for business.

But what Bellos and Montagu are ultimately distressed about isn’t that businesses like Sony are sucking in large sums for the right to play music they didn’t create, or that you and I have to pay to listen to it. We always had to pay to listen to it. The problem, as they see it, is that corporate control of cultural capital robs the commons.

...

Bellos and Montagu argue that copyright law, originally enacted in Britain in the eighteenth century to protect publishers (and, to some extent, writers) from pirates, has evolved into a protection for corporate colossi with global reach. The law today treats companies as “authors,” and classifies things like the source code of software as “literary works,” giving software a much longer period of protection than it would have if it were classified only as an invention and eligible for a patent (now good for twenty years, with some exceptions).

...

Most litigation over copyright...involves a term that has eluded precise judicial definition: fair use. Fair use is where the commons enters the picture. When Ezra Pound said “Make It New,” he meant that putting old expressions to new uses is how civilizations evolve. The higher the firewall protecting the old expressions, the less dynamic the culture has a chance to be.

As Bellos and Montagu repeatedly point out, all new creations derive from existing creations. In our head when we write a poem or make a movie are all the poems we have read or movies we have seen. Philosophers build on the work of prior philosophers; historians rely on other historians. The same principle applies to TikTok videos. The same principle applies, really, to life. Living is a group effort.

The no man’s land between acceptable borrowing and penalizable theft is therefore where most copyright wars are waged. One thing that makes borrowing legal is a finding that the use of the original material is “transformative,” but that term does not appear in any statute. It’s a judge-made standard and plainly subjective. Fair-use litigation can make your head spin, not just because the claims of infringement often seem far-fetched—where is the damage to the rights holder, exactly?—but because the outcomes are unpredictable. And unpredictability is bad for business.

..

Some people may say that A.I. is robbing the commons. But A.I. is only doing what I do when I write a poem. It is reviewing all the poems it has encountered and using them to make something new. A.I. just “remembers” far more poems than I can, and it makes new poems a lot faster than I ever could. I don’t need permission to read those older poems. Why should ChatGPT? Are we penalizing a chatbot for doing what all human beings do just because it does so more efficiently? If the results are banal, so are most poems. God knows mine are.

Read the rest.