Episode 548: AI: Artificial Issues (in Patents and Copyrights) - podcast episode cover

Episode 548: AI: Artificial Issues (in Patents and Copyrights)

Feb 10, 20231 hrEp. 548
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Episode description

Guest: Philip Burrus of the Burrus Intellectual Property Law Group

First broadcast February 10 2023.

Transcript; Playlist at https://www.wrek.org/?p=38943

"All about humans, in some way or another."

Transcript

[MUSIC PLAYING]

[AUDIO PLAYBACK] - David, I often felt a sort of envy of human beings at that thing they called spirit. Human beings had created a million explanations of the meaning of life in art, in poetry, in mathematical formulas. Certainly, human beings must be the key to the meaning of existence. But human beings no longer existed. So we began a project. [END PLAYBACK] [MUSIC PLAYING]

CHARLIE BENNETT

You are listening to WREK Atlanta, and this is LOST in the STACKS, the research library rock and roll radio show. I'm Charlie Bennett in the studio with Fred Rascoe and a player to be named later. Each week on LOST in the STACKS, we pick a theme and then use it to create a mix of music and library talk. Whichever you are here for, we hope you dig it.

FRED RASCOE

And our show today is called "AI, Artificial Issues--

CHARLIE BENNETT

Ha.

FRED RASCOE

--in Patents and Copyright." We got some questions about the big issues in intellectual property. CHARLIE BENNETT: Intellectual property-- IP. Sounds like we're going to have to talk to, I say, an IP attorney. And, hey, we got one. That's right. Our friend, Philip Burrus of the Burrus Intellectual Property Law Group, returns to the show to help us sort out where the legal boundaries are in this world where AI is encroaching fast.

CHARLIE BENNETT

Philip is not only a friend. He's also the show's attorney, pro bono. Thank you. I think that's OK. And this is official. Philip is in the new studio for the first time. And I, for one, am hoping his advice to us will be to drive at top speed.

FRED RASCOE

Me, too. Our songs today are all about humans in some way or another, whether it's figuring out our own humanity or figuring out how humanity disappears.

CHARLIE BENNETT

Where's the optimism, Fred? That's really bleak.

FRED RASCOE

Yeah, I guess it is. So in that case, we'll start with a declaration of optimistic humanity. This is "I'm Alive" by the Hollies, right here on LOST in the STACKS.

[MUSIC - THE HOLLIES, "I'M ALIVE"]

FRED RASCOE

CHARLIE BENNETT

That was "I'm Alive" by the Hollies. Fred, who is on the board--

FRED RASCOE

I am. CHARLIE BENNETT: --needs a little help. So I'm just going to talk for a moment, Fred, so you can play around with my volumes and find out who I am. OK. You are guest mic 2.

CHARLIE BENNETT

Guest mic-- I'm host mic. I'm host mic number 1.

FRED RASCOE

Oh, host mic number 1.

CHARLIE BENNETT

Guest mic 2.

FRED RASCOE

And I'm on mic.

CHARLIE BENNETT

Thank you for putting up with that, everyone. This is LOST in the STACKS. And today's show is called "AI, Artificial Issues in Patents and Copyright." Does that count as a pun, Fred?

FRED RASCOE

"AI, Artificial Issues"-- maybe? Playing fast and loose with-- CHARLIE BENNETT: I'm keeping count. --what a pun is.

CHARLIE BENNETT

And eventually, you will run out of puns.

FRED RASCOE

Are you going to tell me how many I get?

CHARLIE BENNETT

No.

FRED RASCOE

Good. Keep me guessing. Our guest is Philip Burrus of the Burress Intellectual Property Law Group in Atlanta, Georgia. And if you're a regular listener, you may recognize the name because we acknowledge him as our legal counsel near the end of every episode. So welcome back to the show, Philip. PHILIP BURRUS: Thank you so much. It's so great to be here in this beautiful new studio live. The last time we did this, it was prerecorded. It's beautiful here, and it's great to be back with you guys.

I always enjoy coming back and can't thank you enough for having me. Oh, we're always glad to have you-- glad to have the pro bono legal counsel. And this is your third WREK air studio that you've been in.

PHILIP BURRUS

Third studio. Yep, that's right-- WGST studio over at the coliseum, the one that was here at the student center before, and then this nice new one.

FRED RASCOE

Right. Yeah. So you were a student DJ.

PHILIP BURRUS

I was. I was an op in the-- dating myself-- the early '90s. But, yeah, I spun records.

CHARLIE BENNETT

Oh, my gosh, the early '90s.

PHILIP BURRUS

Early '90s.

CHARLIE BENNETT

How long ago was that to be a student, Phil?

PHILIP BURRUS

It was a while ago.

CHARLIE BENNETT

So long ago.

PHILIP BURRUS

It seems-- where did the time go? I mean, it seems like yesterday. Board's a little bit different now, and, of course, a lot of things computerized. But, you know, otherwise, it's still always fun to be here.

FRED RASCOE

So we're reminiscing about the more analog days of radio. You and I were both ops in college when things were, like, on dials, and there were no digital displays. There were just needles moving. PHILIP BURRUS: Indeed, the needles. Analog. CHARLIE BENNETT: Carts and tapes.

PHILIP BURRUS

Oh, so good.

FRED RASCOE

Computers and the virtual world has taken over. And that's kind of what we're talking about today. As a matter of fact, artificial intelligence is the topic of the day-- "Artificial Issues in Artificial Intelligence." And we know that you're an intellectual property lawyer. So what is currently going on with intellectual property created by artificial intelligence? I mean, artificial intelligence is actually creating things that could be-- you deal with patents. Could it be patentable?

PHILIP BURRUS

So there is a lot going on, and we can talk about all of it. And the guy who's leading the charge is a guy named Stephen Thaler that we should talk about at some point. But AI is all the rage now because you hear about ChatGPT and other things like that. But it's been going on for a while. I mean, talk about dating yourself. Watson won Jeopardy in 2012, and so that was a decade ago.

CHARLIE BENNETT

Who's Watson?

PHILIP BURRUS

IBM created a little machine called Watson.

FRED RASCOE

I remember when it was a big deal that a computer beat Garry Kasparov in chess.

PHILIP BURRUS

That's true. Well, you know, today, Watson does things like he analyzes cancer diagnosis for patients to pick the right treatment. And he can take a 160-man-hour job by a team of very specialized physicians, turn that into a 10-minute activity. And so things have exploded now. But to give you another example of the power of AI, there's a company called DeepMind. And for anybody who has ever played the game Go, there is basically a grid, and you've got some white and black stones.

And while chess has a lot of permutations, Go has more designs of the board that can happen in a game than there are atoms in the universe-- a lot more. And so DeepMind came up with AI to play Go. And it was called AlphaGo Master. And AI, for anyone who doesn't know, it's software that ingests a lot of data. It's trained with a lot of data, and it creates a model that's a predictive model to predict what happens. So it's great at playing games and diagnosing diseases and things like that.

So they trained up AlphaGo Master, and it beat the world champion in Go. That was in 2017. Later in 2017, they came up with AlphaGo Zero, trained it for three days by making it play itself, and it beat AlphaGo Master 100 times in a row. So the power of AI is huge. But to answer your question, yes, they're creating paintings, stories. Even ChatGPT is creating term papers and things like that.

FRED RASCOE

Right.

PHILIP BURRUS

And ordinarily, when things are created and they're generated, you might think they can be protected by copyright if they're artistic or if they're inventions by patent. But our system is not really set up for that. And we can talk about that.

FRED RASCOE

Right, because it's set up that a creator is a human being. And I'm thinking about things that could be patented versus things that could be copyrighted. And I can fathom how a computer can create some sort of artwork. You feed it some inputs, and it creates a new and original artwork. If it was done by a human, maybe it would be copyrighted.

If not-- irrespective of whether it can be copyrighted or not because it was artificial, what about a patent where something is created to be novel and useful to humans, not a creative thing, which is kind of subjective? How are artificial intelligence is creating things where there's even a debate whether it could be patentable or not?

PHILIP BURRUS

So let's talk about a guy named Stephen Thaler, and he's a software engineer. He runs a group called Imagination Engines Corp. And he is big in pushing the intellectual property laws as they relate to IP. He's represented by a guy named Ryan Abbott, who's a really fascinating guy I've actually heard speak on this topic. He's got a law degree, and he's a law professor at the University of Surrey. He's also got a medical degree, and he's an adjunct medical professor at UCLA.

And he's representing Stephen Thaler. Stephen Thaler came up with two inventions. One's called a neural flame, and the other is a fractal container. And neither is published, but my understanding is they're the same. And if it's the invention I saw when Mr. Abbott spoke, it's kind of a link for a machine. And so there was a complicated linking system that was used. They fed it into this AI. And the AI came up with a brand-new part for a machine. And he's filed it all around the world.

And he came up with a machine called DABUS, which is the device for-- I've got to read this-- the Device for Artificial-- let's see-- the Device for Autonomous Bootstrapping of Unified Science.

CHARLIE BENNETT

It just sounds like you're making everything up, Philip.

PHILIP BURRUS

I am not. This is honest-to-goodness truth. And so he filed this all around the world. And when it came to the US Patent Office, he listed-- you got to list the inventor. And he wrote "DABUS" as the first name, "an invention created by artificial intelligence" as the second name, filed those two applications. And we can talk about what happened to them.

FRED RASCOE

Yeah.

PHILIP BURRUS

And we can talk about the statutes and why. And so he has done this around the world, and he is trying to get patents in the name of artificial intelligence.

CHARLIE BENNETT

Since now we're restricted by segment length, so I want to get deep into one tiny thing to sort of set the stage here.

PHILIP BURRUS

Yes.

CHARLIE BENNETT

When someone starts a process that makes something, is there already an understanding in IP of who's responsible for that? If you build a machine and let it start running, and it spits something out, are you the creator? Are you the owner? Is there anything to help us on this?

PHILIP BURRUS

So Mr. Thaler argues that he is the owner because it's his, and he can apply as the applicant for the patent, even though he's not the inventor. But the classic answer-- it depends.

CHARLIE BENNETT

Yeah.

PHILIP BURRUS

If I have created a machine to specifically go and diagnose a disease, and so I've given it a really focused problem, and I'm guiding it with the training data, there's a much different argument for whether I have the right to obtain a patent than if I just create a general generic AI that just ingests tons and tons of things and spits something out that I didn't predict, which is what Mr Thaler is alleging with his patent applications.

CHARLIE BENNETT

OK. I don't know that that helped me. So I'll just say this is LOST in the STACKS, lost in the AI, lost in the patents. We'll be back with more after a music set.

FRED RASCOE

We're going to file this set under Q335.A78582.

[MUSIC PLAYING - F 16'S, "SUCKS TO BE HUMAN"]

FRED RASCOE

You just heard "Sucks to be Human"-- boy-- by the F-16's.

CHARLIE BENNETT

Right.

FRED RASCOE

But before that--

CHARLIE BENNETT

Oh, man. We are middle-aged, aren't we?

FRED RASCOE

Before that, "Joeboy the Electronic" by Tuxedo Moon. Those were songs about the loss of what makes us human.

[MUSIC PLAYING]

FRED RASCOE

CHARLIE BENNETT

This is LOST in the STACKS, and today's show is called "AI, Artificial Issues in Patents and Copyright."

FRED RASCOE

And to start this segment, well, first, I want to pick up where we left off on the last segment, talking about Thaler. And we were talking about whether humans can hold patents or copyrights. Are we--

CHARLIE BENNETT

Nonhumans, whether nonhumans can hold--

FRED RASCOE

Yes.

CHARLIE BENNETT

Humans can. Can nonhumans?

FRED RASCOE

Right. Yeah, yeah. We're back to live radio. Can't edit--

CHARLIE BENNETT

I love it. It's fantastic.

FRED RASCOE

Have we landed with a court ruling or whatever whether nonhumans can own a patent?

PHILIP BURRUS

Yes, in the US and in, I think, 17 other jurisdictions around the world. In the US, it is so embedded in the statutory authority of the Patent Office to operate that an inventor has to be a person that we've gotten to a court decision confirming that fact. And the way it worked is Thaler came to the patent office, and he filed his patent application. And he listed DABUS, artificial intelligence, as the inventor.

The patent office gave him a missing parts notice and said, hey, you need to supply the name of an inventor. And he said, I did. He petitioned and said, I should be able to name DABUS as the inventor and me as the applicant. He lost the petition. He then sued the patent office in the Eastern District of Virginia, trying to compel them to grant a patent to his AI.

In the US, with patent law in particular, and even copyright law, too, because it's a constitutional issue, it's a federal issue, you sue in district court, which he did. He sued the patent office, and he lost. He lost on summary judgment. You appeal, and typically, you would appeal to a circuit court where the district court sits. If you sue in the Northern District of Georgia and you appeal, you go to the 11th Circuit.

Congress created the Court of Appeals for the Federal Circuit to be the patent court for patent cases. So it is the intermediate appellate court for patent cases below the Supreme Court. Thaler appealed to the Federal Circuit. And last August, he got a decision written by Kimberly Moore, who I actually know and is a very good judge, and she's the chief judge of the Federal Circuit.

And it walked through the history of the statutory basis, going down to what statutes grant the ability to get a patent, like 35 USC 101 says whoever invents a new process machine, manufacturer, composition of matter-- "whoever" implying person-- 110 says inventors must be individuals. 35 USC 115 says you have to give a name, and there has to be a declaration of someone who believes himself or herself to be the inventor. And 115f says "inventor" means a person.

And they even cited Supreme Court law. There was a court case in 2012 called Muhammad versus Palestinian Authority, where effectively, the Supreme Court came along and said anything in the US code, when Congress says "individual," that means a human person unless they specifically go to lengths to say it doesn't just mean people, it means machines, too. Given all of that, Thaler's case, Thaler's appeal, was rejected and reversed.

And so the Federal Circuit walked through years of law statutory basis and said, hey, an inventor has to be a person. And so your AI can't be an inventor.

CHARLIE BENNETT

Is your guess that he was doing this sort of on purpose? This is activism as much as it's an attempt to get the copyright.

PHILIP BURRUS

100% true. 100% true. His attorney, Mr. Abbott, wrote a book called The Reasonable Robot. It's on the intersection of AI and the law. And Thaler is doing this to make a point, either to say, I should be able to-- that's his position. His position is I should be able to. And if the laws don't allow that, then something needs to be changed. This is definitely a provocative thing.

FRED RASCOE

So you've explained what the law says and how the judges interpreted that law.

PHILIP BURRUS

Yeah.

CHARLIE BENNETT

What are you setting up?

FRED RASCOE

Time for a counterpoint, perhaps.

PHILIP BURRUS

Yeah.

FRED RASCOE

So I-- you're discussing this. I decided, well, let's ask everyone's favorite new toy, the ChatGPT bot. OK, so we're going to ask an artificial intelligence a question here. And I asked the question, hey, ChatGPT bot, why should an artificial intelligence be allowed to hold a patent? In about five seconds, I got about six sentences, a paragraph's worth of a response. I'd like to read the response to what you just said from the perspective of an artificial intelligence.

So ChatGPT says, "An artificial intelligence, AI, can invent novel and useful products or processes that meet the criteria for obtaining a patent. Patents incentivize innovation by granting the innovator exclusive rights to their invention for a limited time. Allowing AI to hold a patent would align with this purpose and encourage the development of new technologies.

Moreover, as AI becomes increasingly integrated into various industries, recognizing its role as an inventor would ensure that its contributions are appropriately acknowledged and rewarded." We got to reward the AI. "Additionally, granting AI the ability to hold a patent would promote the responsible use of AI technology and prevent monopolistic behavior by companies that control AI systems." That one's a head scratcher.

"Overall, allowing AI to hold patents would encourage innovation and promote the responsible development and use of AI technology." So that's the robot perspective. What do you say?

PHILIP BURRUS

So sentence one's true. AI can clearly invent things, because one of the strategies in some of the jurisdictions Thaler filed in was to wait, because he didn't have to name an inventor early like he did in the US, until the patent office of that particular jurisdiction said, this is novel and nonobvious. This is a new invention. So that's true. The second sentence about the reason-- CHARLIE BENNETT: Why patents exist. --patents are granted, that's true.

The next two or three sentences are basically advocacy of what Thaler is trying to advocate, which is like, hey, we should be able to do this--

FRED RASCOE

To promote new technologies. PHILIP BURRUS: Controlling monopolies, I'm not sure, because if a company can't get a patent on something its AI generates, I'm not sure how they're going to monopolize that technology when anybody can come use it. And then the last one is kind of an advocacy position, too. But actually, I mean, just look at that response, right? That response is coherent. You had one head scratcher in about seven, eight, nine sentences. Two or three of them I completely agree with.

CHARLIE BENNETT

And the head scratcher did operate like a thought. I mean, it's the kind of-- excuse me-- BS that one would throw into a paper, thinking that it would work.

FRED RASCOE

That's exactly it.

PHILIP BURRUS

Late at night, 2:00 AM, when I got to get it in. It could have been written by a human. It's just not a great-- a lawyer would not take this to a judge.

CHARLIE BENNETT

Now, did you do the like a control or another test of this and ask it, should a animal intelligence or should a human intelligence be allowed to hold a patent to see what it gave you?

FRED RASCOE

That would have been a great idea. I did not. CHARLIE BENNETT: We'll have to do that off air, see what happens.

PHILIP BURRUS

Well, the Copyright Office has an answer for you.

CHARLIE BENNETT

Yes?

PHILIP BURRUS

So there is a compendium, the Copyright Office compendium. They have a human authorship requirement, and they specifically list things and authors who cannot get copyrights-- for example, birds who make paintings. I used to live in Grant Park, and I've got a couple of paintings by a crow. Art made by elephants-- and there have been requests for songs authored by the Holy Spirit were also denied copyright.

So it has to be-- they've got a human authorship requirement, but they list several things-- cuts made in rock by ocean waves, driftwood--

CHARLIE BENNETT

OK, wait, wait. We burned right by that Holy Spirit thing.

FRED RASCOE

Yeah.

CHARLIE BENNETT

There was a-- songs by--

PHILIP BURRUS

And the gazette--

FRED RASCOE

--the Holy Spirit.

PHILIP BURRUS

--has examples, songs authored by-- and there's actually a case-- I've got it here on my phone, I can pull it up-- where it was a compilation. And the court ruled that there has to be enough human authorship of the compilation for copyright to be given. Ghosts cannot get copyrights, you can say.

CHARLIE BENNETT

OK. Well, that other part makes sense. All right.

FRED RASCOE

So what else-- is the Thaler case the only case that has really definitively spoken on this with regard to patents?

PHILIP BURRUS

Probably not, because there are probably many, many patents that were generated wholly or in part where the inventions were generated wholly or in part by AI, where they weren't listed as the inventor. Thaler came in specifically at the Copyright Office, and that litigation is still ongoing. He's kind of a first case-- and at the patent office. And he specifically said, I don't know how this was created. DABUS created this.

CHARLIE BENNETT

So this is back to the activism. You think that there's probably-- say we'll call it a corporate entity that's "patentening"-- wow, I can't say it. But getting a--

FRED RASCOE

It's hard work.

CHARLIE BENNETT

--yeah, getting a patent on something that was created by some AI process that they have in their R&D that they're not completely straight about with the patent office? Is that what you're saying? Or--

PHILIP BURRUS

I do not know that for a fact. I wouldn't state that as a fact. However, my suspicion-- because AI has been used in manufacturing for decades. CHARLIE BENNETT: It feels that way. It feels that way. Watson's passed the medical boards. They've had AI in China pass their national medical boards. My guess is there is at least one patent out there in the world-- this is my guess-- that was wholly or mostly generated by AI where an inventor who kind of programmed that AI is listed as inventor.

That's my guess, but I don't have any good facts to back that up. So there you go.

CHARLIE BENNETT

OK.

PHILIP BURRUS

Nobody's listening to this, right?

CHARLIE BENNETT

Nope. No one's hearing this yet. We have no listeners.

FRED RASCOE

Totally off the record, totally off the record. You are listening to LOST in the STACKS, and we'll continue to go at top speed with IP attorney Philip Burrus on the left side of the hour.

[MUSIC PLAYING]

FRED RASCOE

MARK RIEDL

Hi there. This is Mark Riedl of Georgia Tech's computer science department, or is it? Maybe my voice has been deepfaked, and this is just a digital forgery created by a neural network. Either way, you're definitely listening to LOST in the STACKS on WREK Atlanta.

CHARLIE BENNETT

Today's show is called "AI, Artificial Issues in Patents and Copyright." The midshow break is usually a time for us to pause and thoughtfully reflect on the topic of the day, maybe read an excerpt of someone who wrote about the topic. But, Fred, you've brought up ChatGPT a couple of times.

FRED RASCOE

Oh, yeah. It's fun.

CHARLIE BENNETT

Yeah, your laptop's open. Let's try this. Bring up that thing. Fire up the ChatGPT.

FRED RASCOE

I got it right here.

CHARLIE BENNETT

I think we should ask you a question--

FRED RASCOE

OK.

CHARLIE BENNETT

--right now.

FRED RASCOE

Let's do it.

CHARLIE BENNETT

On the spot, live radio.

FRED RASCOE

Sure.

CHARLIE BENNETT

And then you'll read the answer as it delivers it to you.

FRED RASCOE

I will.

CHARLIE BENNETT

OK.

FRED RASCOE

I got it ready to go.

CHARLIE BENNETT

Let's ask it, "How should we do a library rock and roll radio show?"

FRED RASCOE

"How should we"--

CHARLIE BENNETT

Do.

FRED RASCOE

--"do--" is "do" the right word here?

CHARLIE BENNETT

"How should we produce"--

FRED RASCOE

Produce, yeah.

CHARLIE BENNETT

OK. "How should we produce a library rock and roll radio show?"

FRED RASCOE

--"library rock and roll radio show?" I spelled out "rock and roll." CHARLIE BENNETT: That's appropriate. I didn't do the n apostrophe.

CHARLIE BENNETT

OK.

FRED RASCOE

OK. Let's see.

CHARLIE BENNETT

Now get right up on the mic there, Fred, so you can--

FRED RASCOE

Yeah, I'm trying-- sorry.

CHARLIE BENNETT

--tell everybody what's going on.

FRED RASCOE

I'm fiddling around with my laptop.

CHARLIE BENNETT

Yeah.

FRED RASCOE

OK. So the cursor is blinking.

CHARLIE BENNETT

Trying to figure things out.

FRED RASCOE

Maybe it's trying to figure out who "we" is.

CHARLIE BENNETT

Oh.

FRED RASCOE

OK.

CHARLIE BENNETT

Nice.

FRED RASCOE

Well, I've got an answer that's rolling in.

CHARLIE BENNETT

Do it.

FRED RASCOE

OK, so, "First, here are some steps that you should take to produce"-- CHARLIE BENNETT: No calls to action. It's talking to us. It's not talking to a listener.

CHARLIE BENNETT

OK.

FRED RASCOE

"Here are some steps that we should take to produce a library rock and roll radio show. Choose your theme and format. Decide on the focus of your show, whether it's a specific genre, era, or cultural movement. And decide on the format that you want to use, such as a mix of music and talk"--

CHARLIE BENNETT

You're kidding.

FRED RASCOE

--"or all music with brief commentary. Research and curate your music library. Gather a wide range of rock and roll music that fits within your theme. And make sure you have a variety of songs from different artists, genres, and eras." OK. It's given these in bullet points, by the way, numbered. So it's got six bullet points listed so far. I'm about to read number three. "Plan your show. Determine the structure of your show and how you want to present the music.

Number four, record and edit your show. Use a digital audio workstation to record and edit your show. Make sure you include sound effects, transitions, and voiceovers."

CHARLIE BENNETT

Oh, it's getting fancy.

FRED RASCOE

"Promote your show. Share it with others through social media," other suggestions like that. I'll skip over this a little bit. "Evaluate and refine. After your first few shows, assess what works and what doesn't, and make changes as needed. Remember that producing a rock and roll radio show takes time, effort, and dedication. But the end result can be a rewarding and entertaining experience for you and your audience."

CHARLIE BENNETT

OK. Would you please tell ChatGPT to get out of my head? And we will file this set under Q310.E8-- Did it really say all of that?

FRED RASCOE

It did.

CHARLIE BENNETT

--2.

[MUSIC PLAYING]

CHARLIE BENNETT

That was "Artificial Life" by Ultravox, and before that, "Robot Man" by Connie Francis. Those were songs about artificial human experience.

[MUSIC PLAYING]

CHARLIE BENNETT

FRED RASCOE

You are lis-- hey, I'm reading the wrong paper. We should get a robot to do this. This is LOST in the STACKS, and today's show is called "AI, Artificial Issues in Patents and Copyright."

CHARLIE BENNETT

So we-- there is so much here to talk about that we really just need to drill down on a couple of different things. And we'll have you back soon, every time something, you know, bubbles up. Let's move away from this patent stuff and talk about a thing that you brought up off air, which is that artificial intelligence, in order to do creative work in some way, it has to be trained. And that training essentially involves showing it or giving it copies of human-created artworks. Is that right?

PHILIP BURRUS

This is true. So-- CHARLIE BENNETT: So this has created a problem for somebody-- It has. CHARLIE BENNETT: --in particular. So on the invention side, if you're training something using patents, for example, those patents are publicly available, and they're available to be copied and things like that.

When you're training something like ChatGPT or another artistic generation machine, like Thaler's DABUS when it was doing its paintings they filed the copyright on, you feed that AI a training data set, and that typically includes a lot of art. And so there is an artist named Grzegorz Rutkowski. And he's a very stylized painter who does science fiction images that are kind of low lit. He's studied three or four different masters, and he's come up with this particular style.

CHARLIE BENNETT: He's recognizable as this is his kind of work-- His kind of work.

CHARLIE BENNETT

--and his subject matter.

PHILIP BURRUS

So recognizable that he is doing a lawsuit alleging copyright infringement by the AI that was trained ostensibly by making copies of his work. The AI was fed training data that included copies of his work. It's now generating artwork that looks a lot like his style. And so he's actually joining a lawsuit to sue for copyright infringement against the AI and the owner of the AI.

FRED RASCOE

So the copyright issue is-- obviously, you cannot copyright a style. But his issue is that his actual work was used and made a copy of to train this machine to create works in that style.

PHILIP BURRUS

Correct. So one of his paintings would have been digitized, fed to the AI so they can learn lighting, brushstrokes technique, all of the things that a human artist would do if they were studying Michelangelo or whomever. But the machine does it because the machine doesn't have a brain and eyes that it sees. It has to have bits that go into the machine. And so it's a digitized image that's making a copy of a copyrighted work, and unless it's fair use, that's typically copyright infringement.

It's unauthorized, an unauthorized copy.

CHARLIE BENNETT

So the moral or ethical side of this-- they're making things that look like my stuff.

PHILIP BURRUS

Yep.

CHARLIE BENNETT

That has nothing to do with the case. I mean, it has something to do with it in the world, but that's not the legal case. The legal case is that the copies were being made of his work that were then ingested by the AI.

PHILIP BURRUS

So separating Thaler and whether AI can be an inventor or an author, this is copyright infringement. And it does have to do with the fact that I was trained and is generating similar works, because Rutkowski's argument is, hey, you're generating a lot of arts that look like my unique style. It would be like if AI was generating music that sounded like Thelonious Monk or a famous musician because it had copied a lot of Monk's works.

And when people go and google me, they see all of this free AI stuff, because AI can't be the author of it, and it's pushed me way down, and it's hurting my works. Well, the AI makers are like, fair use, man. This is fair use that's in the copyright statute. You don't have to have permission if you have a fair use defense. And they say, look at Google Books. They went and scanned every book on Earth. And that was a transformative use, and so it's fair use.

Rutkowski is like, but it's not fair use to me, because look at the factors of fair use. CHARLIE BENNETT: Yeah, four factors-- I feel like the substance of the work or the amount-- The amount of the work copied-- the nature of the work. His works are very original-- CHARLIE BENNETT: --and the market. --very creative. The nature of the use-- it's creating new works-- and then the effect on the market. And then, of course, the fifth kind of silent factor is whether it's transformative.

And AI art, I think, is truly transformative. So there is a real down-and-dirty fair use argument and defense that will percolate through the courts, I think, on how AI is trained and what it generates vis a vis specific artists.

CHARLIE BENNETT

So we're running out of time. I want to go back and just get to that thing you were saying earlier, I think, off-air. The law is very clear about this stuff, broadly.

PHILIP BURRUS

When it comes to inventors and authors.

CHARLIE BENNETT

Yeah.

PHILIP BURRUS

The other people.

CHARLIE BENNETT

And people are starting to make this an obvious argument or obvious idea for us to think about, that the law is what needs to change for things to change.

PHILIP BURRUS

Here's the thing. So Thaler's got a real kind of break down the door and make AI an inventor and make AI an author. The law is so built around humans being inventors and authors that just making that one change is going to create a tremendous amount, I think, my opinion, of unintended consequences. How do you determine what's obvious?

Whether AI can own a patent or a copyright, all of these unintended consequences, I think, since AI will be a thing and probably needs to be addressed, it just needs to be a holistic look at the body of US and many other jurisdictions of law to say, how are we going to embrace and/or handle this? That discussion needs to occur rather than just saying, I'm going to throw a gin bottle through the window, and you're going to make AI-- you're going to give my AI a copyright.

CHARLIE BENNETT: Well, first off, we need to talk about why it's a gin bottle in particular. Also, I kind of wonder if maybe this is another case where we should just burn it all down, Philip. I don't know. It seems like the genie is out of the box and AI is here to stay, whether it's helping you do your job better or doing your job for you. And so somebody's going to have to address, hey, can I protect those endeavors? Because the last line and the second sentence of the AI response is right.

The reason you have IP is to incentivize creation, so.

FRED RASCOE

Plus I think the I would probably have some fire suppression algorithm that would shut down whatever you tried to burn down, Charlie.

PHILIP BURRUS

Wasn't it HAL that's like, you couldn't do that? So.

CHARLIE BENNETT

Our guest today on LOST in the STACKS is Philip Burrus of the Philip Burrus Intellectual Property Law Group in Atlanta, Georgia. Philip, I'm so glad you're on the show today.

PHILIP BURRUS

Thank you so much for having me. It's always a thrill to be here. It's great to see you both and wish you a happy new year and see this new studio. It's been a real blast. CHARLIE BENNETT: Happy new studio. Happy new studio.

FRED RASCOE

File this set under BT775.H6.

[MUSIC PLAYING]

FRED RASCOE

That was "Flaming Star" by The Headliners, and before that, "How Does It Feel to Feel?" by The Creation, songs about figuring out what qualifies as human and pondering humanity's destiny.

[MUSIC PLAYING]

FRED RASCOE

CHARLIE BENNETT

Today's show is called "AI, Artificial Issues in Patents and Copyright." And Fred?

FRED RASCOE

Uh-huh?

CHARLIE BENNETT

You still got ChatGPT open?

FRED RASCOE

Oh, yeah, yeah.

CHARLIE BENNETT

Ask it how we should end the show.

FRED RASCOE

OK. Hang on just a second. How should we end this episode of LOST in the STACKS? OK, generating an answer.

CHARLIE BENNETT

You gave it a little more-- gave it some extra information.

FRED RASCOE

OK. This is what ChatGPT says. "Ending an episode of a podcast, like LOST in the STACKS, is an opportunity to wrap up the main topics and themes covered in the episode--

CHARLIE BENNETT

[LAUGHING]

FRED RASCOE

--while also creating a memorable and impactful closing. Here are a few suggestions for ending an episode of LOST in the STACKS." It's given me five. I'll try to go through them briefly here-- "summarize the key points."

CHARLIE BENNETT

Sure.

FRED RASCOE

OK, yeah. "Quote a memorable passage." This is pretty memorable. I'm going to say this counts.

CHARLIE BENNETT

OK, all right.

FRED RASCOE

--from ChatGPT, sure.

CHARLIE BENNETT

Callback. I got you.

FRED RASCOE

Right. Oh, this one-- "Leave listeners with a call to action." We cannot exactly do that. CHARLIE BENNETT: Inappropriate, ChatGPT. College radio, a violation of our FCC guidelines there. OK, so number four-- "Preview next week's episode." I think we got that on deck. CHARLIE BENNETT: We will do that. Yeah. "Sign off with a memorable phrase."

CHARLIE BENNETT

[LAUGHS] Have a great weekend-- oh, wait. Not yet.

FRED RASCOE

Not yet.

CHARLIE BENNETT

Let's roll the credits. OK, and since we're-- go ahead and play something that was created by, like, AI or human AI, robot collaboration or something.

FRED RASCOE

Oh, yeah. You know, Georgia Tech has that Shimon robot, which--

CHARLIE BENNETT

That's what I'm trying to think of. Yeah, do that.

FRED RASCOE

All right. Here we go.

[MUSIC PLAYING]

FRED RASCOE

CHARLIE BENNETT

LOST in the STACKS is a collaboration between Atlanta, the Georgia Tech Library, an AI, and this robot over here, written and produced by Charlie Bennett-- that's me-- Fred Rascoe, and Marlee Givens.

FRED RASCOE

And I guess ChatGPT?

CHARLIE BENNETT

A little bit.

FRED RASCOE

Legal counsel, which could never be replaced by a chat bot, provided by the Burrus Intellectual Property Law Group in Atlanta, Georgia-- CHARLIE BENNETT: Although we could teach chat bot to just say "it depends" every time we ask it something.

[LAUGHTER]

FRED RASCOE

Special thanks to Philip for being on the show. And thanks, as always, to each and every one of you humans and robots for listening. Find us online at lostinthestacks.org, and you can subscribe to our podcast pretty much anywhere you get your audio fix.

CHARLIE BENNETT

On the next LOST in the STACKS, well, I'm just going to say it. We're going to talk about Twitter.

FRED RASCOE

Mm.

CHARLIE BENNETT

Yeah.

FRED RASCOE

Uh, hmm. All right. It's time for our last song today. And we started optimistically, and we'll end optimistically.

CHARLIE BENNETT

Fred.

FRED RASCOE

I mean it. There are a lot of things that we build a machine to do for us. And the curse of humanity--

CHARLIE BENNETT

Fred.

FRED RASCOE

--it's going to be optimistic. The curse of humanity is that we're constantly trying to make ourselves obsolete.

CHARLIE BENNETT

Fred.

FRED RASCOE

For now, at least, there are still some things that can only be done by a human, like doing the shimmy and the Boogaloo.

CHARLIE BENNETT

I think a robot probably could shimmy.

FRED RASCOE

Nobody but human beings. And this is "Nobody But Me" by the Human Beinz right here on LOST in the STACKS. Have a great weekend, everybody.

CHARLIE BENNETT

That's a memorable phrase.

[MUSIC PLAYING]

CHARLIE BENNETT

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