When AI output can be copyrighted is when copyrighted elements are expressed in it, like if you put copyrighted content in a prompt and it is expressed in the output, or the output is transformed substantially with human creativity in arrangement, form, composition, etc.
[1] https://newsroom.loc.gov/news/copyright-office-releases-part...
It's also not really clear if you can or cannot copyright AI output. The case that everyone cites didn't even reach the point where courts had to rule on that. The human in that case decided to file the copyright for an AI, and the courts ruled that according to the existing laws copyright must be filed by a person/human/whatever.
So we don't yet have caselaw where someone used AIgen and claimed the output as written by them.
Does a digitally encoded version resemble a copyrighted work in some shape or form? </snark>
Where is this hangup on models being something entirely different than an encoding coming from? Given enough prodding they can reproduce training data verbatim or close to that. Okay, given enough prodding notepad can do that too, so uncertainty is understandable.
This is one of the big reasons companies are putting effort into the so called "safety": when the legal battles are eventually fought, they would have an argument that they made their best so that the amount of prodding required to extract any information potentially putting them under liability is too great to matter.
Well that's different because an encoded image or video clearly intends to reproduce the original perfectly and the end result after decoding is (intentionally) very close to form of the original. Which makes it a clear cut case of being a copy of the original.
The reason so many cases don't get very far is that mostly judges and lawyers don't think like engineers. Copyright law predates most modern technology. So, everything needs to be rephrased in terms of people copying stuff for commercial gain. The original target of the law was people using printing presses to create copies of books written by others. Which was hugely annoying to some publishers who thought they had exclusive deals with authors. But what about academics quoting each other? Or literary reviews. Or summaries. Or people reading from a book on the radio? This stuff gets complicated quickly. Most of those things were settled a long time ago. Fair use is a concept that gets wielded a lot for this. Yes its a copy but its entirely reasonable for the copy holder to be doing what they are doing and therefore not considered an infringement.
The rest is just centuries of legal interpretation of that and how it applies to modern technology. Whether that's DJs sampling music or artists working in visual imagery into their art works. AI is mostly just more of the same here. Yes there are some legally interesting aspects with AI but not that many new ones. Judges are unlikely to rethink centuries of legal interpretations here and are more likely to try to reconcile AI in with existing decisions. Any changes to the law would have to be driven by politicians; judges tend to be conservative with their interpretations.
So if the AI outputs Starry Night or Starry Night in different color theme, that's likely infringement without permission from van Gogh, who would have recourse against someone, either the user or the AI provider.
But a starry-night style picture of an aquarium might not be infringing at all.
>For small contributions to the Linux kernel it would be hard to argue that a passing resemblance of say a for loop in the contribution to some for loop in somebody else's code base would be anything else than coincidence or fair use.
I would argue that if it was a verbatim reproduction of a copyrighted piece of software, that would likely be infringing. But if it was similar only in style, with different function names and structure, probably not infringing.
Folks will argue that some things might be too small to do any different, for example a tiny snippet like python print("hello") or 1+1=2 or a for loop in your example. In that case it's too lacking in original expression to qualify for copyright protection anyway.
But your point still stands.
That is a non sequitur. Also, I'm not sure if copyright applies to humans, or persons (not that I have encountered particularly creative corporations, but Taranaki Maunga has been known for large scale decorative works)
However, if the code has been slightly changed by a human, it can be copyrighted again. I think.
US Copyright Office guidance in 2023 said work created with the help of AI can be registered as long as there is "sufficient human creative input". I don't believe that has ever been qualified with respect to code, but my instinct is that the way most people use coding agents (especially for something like kernel development) would qualify.
Though I guess such a suit is unlikely if the defendant could just AI wash the work in the first place.
I don't believe the idea that humans can or can't claim copyright over AI-authored works has been tested. The Copyright Office says your prompt doesn't count and you need some human-authored element in the final work. We'll have to see.
Copyright requires some amount of human originality. You could copyright the prompt, and if you modify the generated code you can claim copyright on your modifications.
The closest applicable case would be the monkey selfie.
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
No, my understanding is that AI generated content can't be copyrighted by the AI. A human can still copyright it, however.
Whether a person can claim copyright of the output of a computer program is generally understood as depending on whether there was sufficient creative effort from said person, and it doesn't really matter whether the program is Photoshop or ChatGPT.