The Legal World for AI is Muddy and Getting Muddier

As I teased last week, the law is always behind the tech world. Way behind. AI is no different.

But that doesn’t mean that the government isn’t going to try.

On March 15th the Copyright Office issued registration guidance on works containing material generated by AI.

This is probably not something you are thinking about. You are just excited that the AI is making your life easier.

Many companies are using AI to write code, create pictures, generate documents and many other things.

What if, that AI generated code was used by your competitor? That artwork which really helps you enhance your product.

Today a client told me that he was using AI to create blog posts. It was basically free and took 1/50th the time.

What if your competitor saw those posts or that code and took it as theirs.

Well, it turns out, you have no recourse. Really. None.

The Copyright Office says the law requires that a work can only be copyrighted by a HUMAN creator. Not by someone who told the AI to create it.

The Copyright Office says that it is regularly getting requests to copyright AI generated work.

The answer is no.

So, assuming that your competitor didn’t break some other law to get your content, they are free to use it. After all, that is basically what the AI is doing anyway. Your competitor is just skipping the middleman.

What if you put a copyright notice on that blog? Are you committing fraud?

The Copyright Office is now requiring that you disclose what parts of whatever you are trying to register were created by an AI.

In many cases, something is not formally registered until someone misuses it and you want to go after them. That could be months or years later. Do you think your developers are going to remember what code was generated by an AI and what code was generated by them? Not likely.

So lets assume that your law firm lies and tells the Copyright Office that it was all human (and maybe they actually believe that).

What logically follows is a lawsuit.

So now you have discovery.

The opposing side deposes your developer and the developer, who may not even work for you anymore, decides that he or she does not want to go to prison and tells the truth and says the code or art or document or whatever was generated by AI.

What happens next?

Likely the Copyright Office voids your registration.

Your opponent counter sues you and asks for damages.

Possibly you get charged with falsifying a U.S. government document – committing perjury.

Your lawyer, if he or she knew that the statements were false, could get brought up on ethics charges. Or worse.

Do you kind of get that this could be a mess?

What if the work was generated by an AI and then modified by a human? Does that mean putting a period at the end of the sentence or does it mean totally redoing what the AI created?

Congress is not in love with big tech at this moment and that is who Congress is likely going to think is going to benefit from changing the law. Do you think they are going to have a lovefest to help out big tech? Even if it also benefits the small player?

Do you think this will get solved soon? Not likely.

Credit: Pryor Cashman law firm

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