Case 1:22-cv-01564-BAH Document 17 Filed 02/07/23 Page 31 of 34
new expressive material. Dkt. 13-7 at US_0000024–25; see also id. at US_0000024 (arguing that “[b]oth the U.S. Constitution and principles of good public policy require that the Office permit ‘AI-generated works’ or ‘computer-generated works’ (CGWs) to receive copyright protection”).
Regardless of Plaintiff’s own views, the Constitutional purpose of copyright is to incentivize humans to create expressive works. “[T]he Framers intended copyright itself to be the engine of free expression,” by “suppl[ying] the economic incentive to create and disseminate ideas.” Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 558 (1985). Unlike humans, machines do not have rights of free expression, and do not need economic incentives to create and disseminate expressive content. Cf. Dkt. 13-7 at US_0000025 (Plaintiff’s admission that “machines do not have legal personality”). For this reason, the Supreme Court has described copyright as “advanc[ing] public welfare,” by rewarding “[s]acrificial days devoted to such creative activities.” Mazer, 347 U.S. at 219. But machines built to generate works autonomously—like the Creativity Machine—do not “sacrifice” time. A machine functions as designed without motivation or reward.[1]
In any event, this is not the forum to resolve Plaintiff’s policy arguments. The rapid development of AI technology, particularly systems capable of generating expressive material, raises many questions about its interplay with copyright law. See, e.g., James Vincent, The scary truth about AI copyright is nobody knows what will happen next, The Verge (Nov. 15, 2022), https://www.theverge.com/23444685/generative-ai-copyright-infringement-legal-fair-use-
- ↑ As the Office’s decision noted, the Supreme Court’s construction of the Copyright Clause suggested that the Constitution itself limits copyright protection to only creations of “authors,” i.e., humans. See Dkt. 13-8 at US_0000034 n.6 (citing Sarony, 111 U.S. at 56 (describing beneficiaries of the Constitution’s intellectual property clause as “authors,” who are, along with inventors, one of “two classes” of “persons”)).
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