How About Using AI To Determine Whether Or Not Something Is Creative Enough To Get Copyright Protection

Copyright

from the put-it-to-good-use dept

There’s been a lot of talk lately about the role of AI and copyright, with much of it focused on fretting by various copyright maximalists about how things created by AI need more copyright or how AI systems are violating the copyright of artists, both of which seem to be fairly questionable claims at best.

But, copyright law professor Brian Frye recently participated in a Copyright Office “listening session” regarding copyright and AI, and he suggested an entirely different way that everyone (including the Copyright Office) should be thinking about. As he notes, the questions everyone seems to be fretting about appear to be easily answered:

I think we are asking the wrong questions about AI and copyright. Everyone is asking whether copyright protects AI-generated works and whether training an AI algorithm infringes copyright. The obvious answer is no and no.

Copyright only protects works created by people. AI doesn’t even create works, it generates content, which we consumers interpret as works. Roland Barthes predicted the death of the author, and AI has written the author’s obituary.

Likewise, training an AI algorithm doesn’t and shouldn’t infringe copyright. AI algorithms don’t copy works, they merely catalog rhetorical conventions and then deploy them to create conventional content.

Instead, he notes, everyone is missing the much bigger picture in that we could be (and arguably should be) using AI to tell us which other works (of the ones created by humans) even have enough creativity to deserve copyright protection in the first place:

We should be asking what AI can tell us about what copyright should protect and why. Copyright can only protect “creative” works. But courts and the Copyright Office have struggled to define “creativity.” Maybe AI can help?

An AI algorithm is essentially a nonsense generator, designed to produce banalities. In other words, AI is uncreative by design. An AI algorithm is a machine for regurgitating conventional wisdom. Indeed, we are amused when an AI “hallucinates” and fails to satisfy our pedestrian expectations.

But we can be just as boring as any AI. And there’s no point in copyright protecting banalities. Maybe AI can help us limit copyright to works that are actually creative. It’s easy, just ask AI to evaluate the “creativity” of works produced by people, to determine whether they deserve copyright. No one knows a fake like a faker, and AI is designed to identify banality. That’s what makes it a killer app.

We don’t know how to identify creativity. But AI can tell us what isn’t creative. Maybe that’s good enough to tell us what is creative, if anything.

Of course, the likelihood of this happening is basically nil, but it’s still a point worth thinking about. In the copyright world, there have long been arguments over what counts as being creative enough to get copyright’s protections. This may have been most notable in the realm of photography, where some (somewhat reasonably!) argued that the photographer, especially in outdoors/landscape photography, was merely capturing a scene created by nature, and therefore had little, if any, creative input into it.

The courts have generally side stepped this issue by arguing that the photographer gets copyright on the artistic decisions in terms of things like “where to point the camera” and “how to frame the photograph.” But that’s often felt like a cop out.

It’s intriguing to think of AI in a different way, as a much more impartial observer of whatever works are seeking copyright, with the ability to say whether or not a give work has the requisite creativity to get copyright. It may seem like a silly (or even trollish) suggestion, but it’s difficult to argue it’s any worse than how things are currently done.

Filed Under: ai, brian frye, copyright, creativity, us copyright office

Own A Bit Of Plagiarism: Our Plagiarism Collection NFT Auction Close This Wednesday

Techdirt

from the plagiarize-away dept

Last month we launched out Plagiarism Collection of NFTs, plagiarized from law professor/conceptual artist Brian L. Frye’s paper (and NFTs) called Deodand. The content isn’t just about plagiarism, they’re instructing people to experiment with plagiarism, so they seem perfectly set up for being plagiarized. And, since straight plagiarism doesn’t add much value, we decided to take his text, and make it a lot nicer by creating wonderful, colorful, animated GIFs, turning them into NFTs and auctioning them off on OpenSea.

Of course, we were realizing, you haven’t really seen these NFTs up close — so today I’m posting all of them for you to see. If you’d like to own the NFT associated with any of them, just click through and bid in the auction:

I think my personal favorite is Plagiarism Piece 2, though others have been growing on me. I was unsure about Plagiarism Piece 7 and Piece 8, but the more I look at each of them, the more both have been growing on me…

Filed Under: brian frye, nfts, plagiarism

Plagiarism By Techdirt: Our Plagiarized NFT Collection Can Now Actually Be Bid On

Techdirt

from the sorry-about-that dept

Place your bids on the Plagiarism NFT Collection by Techdirt »

A few weeks ago, we wrote about our latest experiment with NFTs (which is part of the research we’re doing into NFTs for a deep dive paper I’m working on). There’s a very long explanation to explain the NFTs in question and why we’re plagiarizing Prof. Brian Frye (but making them much, much cooler). But, after we posted that, we discovered one little problem. The platform that we were using, OpenSea (the most popular and user friendly NFT marketplace)… didn’t work. At least not for us. We’ve spent 3 weeks asking OpenSea to fix things and last night they finally figured out the problem, so that you can now (finally) actually bid in the open auction for our plagiarized set of NFTs about plagiarism.

There are tons of reasons to back them — some good, some less good — but at the very least, it will help support Techdirt, it will show that culture works by building on those who came before, not by locking up content, and it will let you experiment with NFTs if you haven’t already. Also, it’ll let you show how maybe people shouldn’t freak out over plagiarism all the time — and when else do you have a chance to do that?

The entire collection can be seen here, and they do look amazing, if I do say so myself.

Filed Under: brian frye, nfts, plagiarism, techdirt

Techdirt's 'Plagiarism Collection': A Plagiarized Set Of NFTs About Plagiarism

Culture

from the figure-this-one-out dept

As we noted last week, I’m going to be writing a deep dive paper, similar to my Protocols, Not Platforms paper, that explores the ins and outs of NFTs — looking at the legal, cultural, economic, environmental issues related to NFTs. The idea is to explore the ways in which digital scarcity could prove to be different and interesting — and also the many ways in which it may not be interesting at all. If you’re at all interested in supporting this project, our crowdfund to back the paper (and to get a piece of the resulting NFT of the paper) is still going, though not for much longer.

As we’re exploring these issues, however, we’re also going to be doing a bit of experimenting with NFTs ourselves, to better understand how everything works. And the first thing we’re doing is plagiarizing works by law professor/conceptual artist Brian L. Frye. You can now see our Techdirt Plagiarism Collection of eight NFTs, plagiarized (but, if I say so myself, vastly improved) from Brian L. Frye (you can see them all in the iframe below, but it’s better to click through and see the whole thing). Those NFTs are now up for auction in an auction that will run for the next 10 days, ending on October 7th at 6pm PT (9pm ET).

I imagine that some of this will require some level of explanation — though, I’m somewhat wary of killing the frog in the process.

If you’re unfamiliar with Prof. Frye’s work, you’re missing out. You may recall us writing about his “OK, Landlord” project last year (which also became “OK, Landlord ?” Techdirt gear).

You may also recall that earlier this year, Frye wrote a piece for Techdirt criticizing the process of legal scholarship. Towards the end of that piece, he mentioned and linked to a recent Law Review piece he had written entitled Deodand, which as Frye describes it:

This article is a work of conceptual art reflecting on the concept of doing conceptual art in the medium of legal scholarship. It is also an homage to Yoko Ono’s work Grapefruit.

The paper itself is well worth reading, explaining what “deodand” means, exploring the nature of common law, our understanding of common law, and explaining what Yoko Ono and her book Grapefruit have to do with all of this (I won’t spoil all of it). I will include this tidbit that explains the structure of the paper, however:

As Ono observed, art is everywhere. But there?s still more of it in some places than others. Unfortunately, legal scholarship usually contains very little art. Or at least, legal scholarship has a hard time seeing itself as an art form. It?s a shame because legal scholarship is as good a medium as any for art?especially conceptual art. After all, every genre has aesthetic qualities, even legal scholarship. If it?s a struggle to make legal scholarship aesthetically pleasing, all the better! Artists have always had to struggle, and there?s no own like a self-own. What?s more, legal scholarship is all about concepts. Usually the concepts are boring and scholastic, but they still matter. There are a lot of mediocre genres. Even if legal scholarship is a mediocre genre, it?s entitled to a little representation, isn?t it, and a little chance? We can?t have only painting, sculpture, and music. Conceptual art is promiscuous. It loves the genre that loves it back.

So, this article is an homage to Ono?s Grapefruit in the genre of legal scholarship. It consists of a number of ?pieces? intended to encourage reflection on the nature and practice of legal scholarship. Of course, it reflects my own particular interests, inter alia discussing the concept of plagiarism, especially as articulated in the context of legal scholarship.

Notably, this is the first article in which I have (intentionally) plagiarized anything. At a certain point, you just have to jump in. For what it?s worth, a considerable part of the plagiarism in this article is self-plagiarism, which is really just plagiarism for plagiarists without the courage of their convictions. But many of the pieces in this article plagiarize other legal scholars. Like any self-respecting plagiarist, I only plagiarized the legal scholars I love the very most. See if you can spot their work. I hope I added something to it.

And then, within the piece, are a long list of “instructions” regarding various topics, including eight such instructions regarding plagiarism — a topic that Frye has also written about extensively, calling into question why plagiarism is considered “the ultimate academic crime,” and suggests that we rethink plagiarism entirely. As he writes in that paper:

Plagiarism norms are primarily an extralegal, inefficient, and illegitimate way for academics to claim property rights in the public domain. Copyright cannot and should not protect ideas, and plagiarism norms are simply copyright by other means. Attributing ideas should be voluntary, not mandatory. Academics should provide citations because they are helpful to readers, not because they are an obligatory form of obeisance. We should encourage people to attribute ideas whenever helpful and appropriate, but we should refuse to recognize the self-interested and unreasonable claims of those who seek to enforce plagiarism norms for their own sake and in their own interests.

Earlier this year, Frye began exploring NFTs, and (among other things) how they fit in under existing law — specifically securities law. He has similarly published another paper, entitled an SEC No-Action Letter Request, in which he explores whether or not selling shares of ownership in the No-Action Letter Request itself is an illegal unregistered security. In order to sell those shares, he has created NFTs associated with the No-Action letter.

Separately, Frye created a bunch of NFTs out of the different “instructions” in the Deodand paper, including the Plagiarism Pieces. This resulted in Josh Lamel, from Insight Public Affairs suggesting that someone should sell plagiarized NFTs of Frye’s NFTs. We have now stepped up to do so.

Because it is plagiarism, and a key point that Frye highlights is that you shouldn’t need to ask for permission, we have not done so — though it certainly appears that Frye endorses this plagiarism, that’s really neither here nor there.

We’ve written plenty about how people overreact to plagiarism in the past, and have noted that plagiarism can often lead to even greater creativity. Often, good plagiarism takes one work and does something else to it, to make it better, or more widely known. We believe we have done that with Frye’s work. His paper, and his NFTs, were fairly boring, typical law review typeface of black letters on a white background. While using his text, we have spiced up all eight of the plagiarism pieces, adding color and (most importantly) animation. Each of the eight NFTs is different, but they are currently being auctioned off, so feel free to own a piece of conceptual art / legal scholarship / plagiarized / case study about plagiarism, ownership, digital ownership and more. Again, the auction will remain live through next Thursday evening.

Filed Under: abundance, brian frye, conceptual art, culture, nfts, ownership, plagiarism, scarcity

OK, Landlord: If Copyright Supporters Are Going To Insist Copyright Is Property, Why Are They So Mad About Being Called Landlords?

Copyright

from the copyright-is-funny dept

After writing this post, we realized that the phrase would make a great t-shirt! So now you can get yourself some OK, Landlord gear from the Techdirt store on Threadless »

For a long time now we’ve explained why comparing copyrights to property is fraught with problems. So much of the reason that we engage in property rights is to enable a more efficient allocation of scarce goods. When you have something that is not-scarce — or as the cool economist kids like to say “non-rivalrous and non-excludable” — treating them in the same manner as if they were scarce creates all sorts of weird problems, many of which we’ve spent two decades detailing on this site. Indeed, for every argument made that copyright is property, you could make a compelling case that it’s actually the opposite of property in that it frequently takes away the rights and ability of individuals to do what they want with products they rightfully own.

Five years ago, I noted that one of the big problems around the concept of “intellectual property” was the failure of people to separate the content, from the exclusive rights. That is, it’s fair to think of the copyright as a form of property — as the “right of exclusion” that it creates is more property-like — but that it must be seen as separate from the underlying content. The “copyright” is not the content. And so much of the discussion around copyrights conflates the right and the underlying content and that creates all sorts of problems.

Meanwhile, law professor Brian Frye has spent the last month or so making a really important point regarding the never-ending “is copyright property” debate — saying that if copyright is property, then copyright holders should be seen and treated as landlords. This whole approach can be summed up in the slightly snarky and trollish phrase: “OK, Landlord” used to respond to all sorts of nonsensical takes in support of more egregious copyright policies:

Like everyone, the copyright cops want to have their cake and eat it too. They claim that copyright is a kind of property, so the law should protect it just like any other kind of property. But they also claim that authors are morally entitled to copyright ownership because of their special contribution to society. I find both claims uncompelling, but in any case, they can?t have it both ways. If copyright is a property right, they have to own it and can?t claim the moral high ground.

What’s been most telling about this useful analogy is just how angry it seems to make copyright holders and copyright-system supporters. They react very negatively to the suggestion that they are “landlords” and any money they make from copyright licensing is a form of “rent.” But if you’re going to claim that your copyright is profit, then, well, the landlord moniker fits.

But the copyright cops persist, insisting that copyright is property, so copyright owners are entitled to the entire value of the works they create because that?s what property means. Accordingly, copying a work of authorship without permission is theft, even though it only increases the number of copies, because the copyright owner didn?t profit. And even consuming a work of authorship without permission is wrong because copyright owners are entitled to profit from every use of the work they own.

The circularity of these claims should be obvious: copyright is property because copyright owners receive exclusive rights, and copyright owners receive exclusive rights because copyright is property. But let?s run with it. Okay, copyright is property and copyright owners are property owners. Why are copyright owners entitled to profit from the use of their property?

Because they?re landlords. Copyright owners want to own the property metaphor? Then, let ?em own it. If copyright is property, then they are landlords and copyright profits are rent. Just like landlords, copyright owners simply make a capital investment in creating or acquiring a property, then sit back and wait for the profits to roll in.

As Frye notes, the whole idea that copyright holders are landlords (even as they claim that they are holding property that you need to pay them to use), shows the sort of emotional trickery that copyright holders use in also claiming some sort of moral right to their works as “creators.” They’re picking and choosing which arguments to use when — and, have long tried to imbue some sort of magical mystical status on holding the copyright to creativity (which is often quite different than creating itself).

Of course, the real issue at play is that many of the most vocal copyright system supporters want to believe that they’re “artists” who are fighting the system and speaking for the oppressed… and being a “landlord” who is renting out their property goes against that self-image. But as Frye notes, they can’t really have it both ways. If they want to declare that they have property rights, they should be perfectly find with recognizing that they are the current landlords for that “property.”

Want to irritate the next copyright holder you meet? Then get yourself an OK, Landlord t-shirt (or hoodie, or button, or notebook, or…) from the Techdirt store on Threadless »

Filed Under: brian frye, copyright, intellectual property, monopoly rents, ok landlord, property rights, rents