Tag Archive for: tech

The AI Copyright Quandary: Originality, Creativity, and the Machine

By Lauren Mack, with the assistance of ChatGPT

Questions surrounding the protectability of output produced by artificial intelligence (AI) under copyright law are becoming increasingly significant for content creators and businesses alike. The current legal framework in the United States and many other countries requires that, in order to be eligible for copyright protection, a creative work must be created by a human. However, as AI technologies continue to advance and produce increasingly creative and original works, there is a growing debate about whether these works should also be eligible for copyright protection.

Who Should be the Author of AI-Created Works?

One of the key issues in the debate over whether AI-generated works should be copyrightable is the question of who should be considered the author of such works. Traditionally, the author of a work is the person who created it, and that person is entitled to the exclusive rights of copyright protection. However, in the case of AI-generated works, there is no clear person or group of people who can be considered the author of the work. Instead, the work is the result of a complex and often opaque set of algorithms and processes that may involve many different inputs and variables.

The most persuasive approach to resolving this issue in favor of technology is to consider the role of human input in the creation of AI-generated works. While AI systems may be capable of producing works that are original and creative, these systems generally still require significant input and direction from humans. For example, an artist may use an AI algorithm to create a painting, but the artist is still responsible for selecting the colors, composition, and other elements of the work. Similarly, a musician may use an AI system to generate a melody, but the musician is still responsible for arranging and producing the final song. This could be analogized to taking a photograph with a camera – while the camera creates the picture, it is the human behind the camera who selects the subject, angle, lighting, etc., and who is therefore the copyright owner in the ultimate photograph. Proponents of this approach argue that the human input and direction involved in the creation of AI-generated works is sufficient to satisfy the “human authorship” requirement under copyright law.

A less common argument is that the AI itself is the copyright owner. This argument appears destined to fail, as the US Copyright Office has consistently stated that only humans can author a copyrightable work, including in connection with a case where PETA brought an action claiming that the copyright in a selfie taken by a monkey named Naruto using a camera set up by a nature photographer was owned by the monkey (the lawsuit was ultimately settled). Others have argued that the AI program is the author, which creates the work on behalf of the AI creator as a “work made for hire” under the US Copyright Act, making the creator of the AI program the ultimate owner in the works it creates.

One such argument is being made by Stephen Thaler, who submitted an application to register a copyright in an AI-generated work of art titled A Recent Entrance to Paradise in 2018. He listed the author of the work as his Creative Machine system, known as DAUBUS, which he claimed “autonomously” created the work. He further listed himself as the copyright claimant under the “work made for hire” theory. The US Copyright Office rejected his application, stating that current copyright law only provides protection to “the fruits of intellectual labor” that “are founded in the creative powers of the mind”, and AI-generated works do not meet this requirement. Thaler appealed the decision to the US District Court in Washington, D.C., arguing that protecting AI-generated works under copyright law is necessary to promote the production of socially valuable content and is required under current legal frameworks. While the Copyright Office’s decision here is in line with its previous statements and court rulings, these novel arguments could result in disrupting current norms.

Further clarification from the Copyright Office has recently determined that works not created entirely by AI may have limited copyright protection. In September 2022, Kristina Kashtanova attempted to register the copyright in their comic book entitled Zarya of the Dawn. The story was written by Kashtanova themself, however they used the AI art generator Midjourney to create the illustrations. Although they described the time-intensive process of describing how each image should look to the AI platform in order to obtain their desired output, the Copyright Office was unpersuaded that it was enough human creativity to merit full copyright protection. As of this week, the Copyright Office has cancelled their copyright registration and reissued it to exclude protection for the Midjourney-created art, but provided protection for the text written by Kashtanova and for the comic as a “compilation due to her creative selection, coordination, and arrangement of the text and images”. Whether Kashtanova will also appeal this decision to federal court as Thaler did remains to be seen.

That’s Output, But What About Input?

Whether AI output is copyrightable is not the only question being posed to US courts. For AI to learn how to create text, art, sound, or other output, its algorithm needs to be fed a large amount of information to analyze, from which it learns how to create the desired output. In January 2023, three artists filed a lawsuit in California federal court against DeviantArt, Midjourney, and Stability AI for using their artwork to train AI generators and requested certification of a class action on behalf of similarly situated artists. The plaintiffs asserted that the defendants fed their art to the AI algorithm, thus using it to create new images that were unauthorized derivative works of their original artwork. They further allege that the defendants have profited from these infringing artworks and have used the artist’s names to sell their AI products and services by virtue of being able to copy their artistic styles. The outcome of this lawsuit could have a serious impact on evolving technologies and/or the ability for artists to continue to make a living.

This tension between artists and technology has been a hot button issue since the advent of the commercial Internet. Without large amounts of information to teach the AI algorithm, it could not produce useful output, however if AI output can be used to replace artists by consuming their art, then human artists may not be able to survive. Ultimately, the question of whether AI-generated works should be copyrightable and what permissions are needed to teach that AI, if any, is likely to remain a contentious and evolving area of the law throughout the next few years.

Breaking Up Is Hard To Do: Big Tech and the Coming Antitrust Assault

By: Rob Griffitts

Big tech has been under assault by Europe’s regulators for years now, but until recently, not much has been happening in the US.  But after a series of scandals, most notably Facebook’s privacy issues with Cambridge Analytica and a shift in the political climate, a US backlash is gaining momentum.  Detractors on both sides of the political aisle claim big tech is hurting consumers, our democracy and our economy.

The biggest tech companies – namely Facebook, Amazon, Apple, and Google –  are under investigation from multiple federal, state and congressional regulators.  

Google faces four antitrust cases and is being accused of using its stranglehold on the internet search to the detriment of others.  Facebook, which also owns some of the world’s largest messaging apps, also faces four antitrust cases (and five other cases for privacy practices).  Amazon faces three antitrust cases, and questions center on whether the giant favors its own private label goods over those of third parties. And Apple faces three antitrust investigations that focus on whether its app store practices harm competitors.

Put simply, they are being accused of being too big and wielding too much power. The conversations being had about these antitrust investigations assume that, if the companies lose, they will be broken up.  That’s highly unlikely, though.

First, historically, antitrust cases have been brought in situations where consumers are harmed due to a lack of competition, which usually took the form of a monopoly that charged excessively high prices.  That’s not the case here. In fact, the opposite is true: services are continually expanding, and prices – if they aren’t already at zero – are decreasing. This would complicate any argument that consumers are being harmed, and antitrust laws are all about protecting harm to consumers.

Second, antitrust cases take a very long time to resolve and are difficult for regulators to win.  Take the case against Microsoft. The FTC started its investigation in 1990, and the Justice Department started its own case in 1998, claiming that the bundling of its Internet Explorer browser with Windows created an unfair advantage over other browsers.  Not until 2002 – 12 years later – was the case settled, on terms significantly diluted from what regulators were initially asking, even though when the case was brought, Microsoft owned about 90 percent of the PC market. These are lessons that regulators are not likely to have forgotten. 

It’s also worth noting that “behavioral remedies” are increasingly out of fashion among regulators, meaning they’re more likely to seek civil damages or fines.  And if big tech’s responses to Europe’s fines are any indication, fines levied here in the US will have little, if no impact.

All that is not to say the whole affair will be a walk in the park.  To the contrary, responding to years-long investigations from multiple agencies will prove to be a big distraction, and one only needs to look at the depressed stock prices of companies under investigation to see how the markets feel about all the uncertainty.


CES 2019: Trends in Technology Cause Regulatory Action For Data and Privacy

By: Steve Masur

CES 2019, recently concluded in Las Vegas and Masur Griffitts Avidor LLP was asked to moderate several panels pertaining to intellectual property and virtual reality at the Digital Hollywood event. Serving as the global stage for innovation, CES introduced many new tech products across a variety of industries. Some exciting new devices like the Samsung GEMS-H demonstrated the possibility of futuristic human abilities—creating a complete lower body exoskeleton. Cars were a focal point at the show as well;he Mercedes-Benz CLA 2020 exhibited heart rate monitoring to control temperatures, music and lighting.

Another major trend at CES was products that utilize location and voice-activated services.Voice assistants, with tracking and location services, are able to power features like traffic predictions and restaurant recommendations. Amazon’s Alexa continues to be built into more products, and CES 2019 displayed many newly-Alexa-enabled products such as Jabra’s Elite 85H Headphones and Lenovo’s Smart Tablet.

Although the convenience of location enabled technology allows for more fluid day-to-day functions and potentially faster exchange of information, they introduce a host of privacy concerns and legal ramifications.

In the first week of 2019, Los Angeles prosecutors sued, Weather: The Weather Channel. The nexus of the claim is that the app tracked the whereabouts of its users and sold it to third-party websites for targeted ads. After high-profile conglomerates like Facebook faced major scrutiny for sharing consumer data, this is the newest lawsuit that relates to online consumer privacy. Mike Feuer, the Los Angeles City prosecutor on the case questions, “This case against the operators of the Weather Channel app goes to the core of today’s most fundamental issues: How do we maintain privacy in the digital age?”

One proposed solution comes in the form of a “Do Not Track Option”. In the face of continued privacy breaches, Senator Ron Wyden of Oregon, one of privacy’s most vocal advocates, doesn’t have faith in big tech companies to regulate themselves, and he has proposed the Consumer Data Protection Act. The proposed regulation is an amendment to the Federal Trade Commission Act. Senator Wyden writes in his discussion draft that he hopes to “establish requirements and responsibilities for entities that use, store, or share personal information, to protect personal information, and for other purposes.”

The proposed bill calls for big tech companies to submit to the government annual data protection reports, which should outline the measures the companies took to ensure the security of all collected personal information. The “Do Not Track Option” section will allow people to opt-out entirely of having their data sold or shared to third-parties and companies that personalize advertisements. This concept is essentially the same as the Do Not Call Registry that was established by the FTC in 2003, where people were given a choice to opt-out of receiving phone calls from telemarketers. The “Do Not Track Option” seems to match up as the digital age’s edition of that. Senator Wyden also proposes to hire 175 more government staff to regulate the market for private data that may have potentially been sold or transacted between companies who possess the data banks. Finally, to ensure cooperation with his proposed legislation, Senator Wyden has included language that outlines prison sentences of up to 20 years for executives who do not abide by the proposed terms. (You can read Senator Wyden’s one-pager underlying the proposed framework here.)

Although this is a valiant effort to maintain consumer privacy in the digital age, it will be a battle for Senator Wyden to have this bill signed into law. The tech lobby has a powerful influence on federal and state policy. Lobbyists pour massive funds into opposing bills that are not in their favor. Amazon, Microsoft, Uber, Facebook, Google, AT&T, and Verizon previously teamed up to work against the proposed California Consumer Privacy Act. The legislation requires companies to share the data they collect from users and also give users similar opt-out option of having their information sold to the highest bidder. Although this was signed into law several months ago, the tech companies put up a fight, and will likely oppose Senator Wyden’s Consumer Data Protection Act as well.

The future of online data privacy is uncertain, but with continued legislative attempts and investigations, it seems as if big conglomerates are also taking steps to make changes to their privacy practices. Just last week, face with a federal investigation, AT&T said they will stop selling location data and pledged to suspend current deals and terminate all remaining deals pertaining to location data. Given the push for legislation reform, tech companies could potentially see massive fines and other consequences. Ultimately, the revenue generated from selling consumer location data may have to become more transparent. For the present moment, consumers intrigued by the new location service enabled tech products at CES can rest a little more comfortably knowing that there are measures being taken to ensure that they retain privacy and control of their data.


We would like to thank Sasha Safavi for his contribution to this article.

I’ve Seen the Future, and It’s Voice Activated

By: Steve Masur

Smartphones are awesome. But aren’t you sick of looking at the tiny screen, especially if you wear glasses? A hundred times a day you stop in your tracks to navigate some groovy mobile interface to get a tiny piece of information—an address, a gate number, maybe a change in direction. The screen is a litter bigger now with plus sized phones, but we’re talking micro-centimeters, which isn’t going to solve text neck or reduce your chiropractor visits. For years, I have been waiting for the virtual reality device that would replace smartphones. Would it be Google Glass, or Cardboard, or would Samsung, Apple, or some other tech innovator change the world with something new? It is actually none of these. It’s the voice interface, with products like Alexa and Siri.

Done right, it’s a lot easier and faster to say something and get an answer than to use a visual interface. Waze has already solved thousands of car accidents—and 65% of all family arguments—just by telling us which direction to turn. Siri and Alexa are okay, but many people agree that, as annoying as it might be to others, whispering or yelling emails and text messages at your iPhone is magical in terms of convenience. These days, almost everyone has become conditioned to expect that words will be wrong in texts, or emails, but they still get what you mean. So it’s not a problem that your emails don’t come out exactly right.

But there’s still a long way to go. Alexa is just a fun toy. It takes too long to wake up, you have to think too hard about how to phrase your question, and the answers are still too rudimentary to be really useful. If, like one of my friends, your name is actually Alexa, forget about it; your home life will be a living robotic hell. But the voice interface is going to get better. Artificial intelligence technology will cause it to understand you and your speech pattern and quirks, and the answers will get more and more exact and nuanced.

Consider the potential applications and market opportunities, as people think of more and better ways to exploit this new interface. It is still early, but it’s obvious that there will be some big financial wins in this space. The Beats sale to Apple was just the beginning of the big tech companies’ increasing and accelerating foray into audio. As voice activation gets better, the headphone and Bluetooth speaker markets will go crazy and this will drive more innovation in apps. This is great news for artists and the music streaming business. These technologies will create greater penetration of sound devices in our everyday lives. Hopefully, there will come a time when you can’t avoid having excellent sound.

But the music business is not even the half of it. Voice activation is the next big thing in mobile, home, and automobile computing. As a sector, it has the potential to change computing as much as mobile phones or efficient search engines. Any application you can think of can be, and will become, accessible by voice technology, and this will drive an enormous amount of financial value in the capital markets over the next five years. Audio will not eclipse the changes that virtual reality will bring. They are on parallel paths. But audio will hit consumers in a big way, and sooner. And for augmented reality applications, audio will do far more than any fancy visual interface could ever have done.

App Promo Summit

Every once in a while, we will let you know about events of interest produced by others.  On April 6, the App Promo Summit is coming to the Stewart Hotel in New York.  The event is about mobile apps.  As you have probably heard, regardless of how many they download, the average person uses 5 or fewer apps on their mobile phone.  The showstopper at the Consumer Electronics Show was Alexa, which blindsided a lot of people in mobile media.  We believe the mobile app market is ripe for disruption, as people adopt voice-activated services over those that require looking at a tiny mobile screen.

App Promo Summit is special because it attracts a much more international crowd, creating something of a miniature, C-level GSMA Mobile World Congress staged in New York.  This allows one to gain insights into what is happening worldwide, not only in the US.

The App Promotion Summit will feature presenters from eBay, the New York Times, Jet.com, Urban Airship, 1stdibs, Dashlane, iHeartRadio, TodayTix, Duolingo, Nickelodeon, and many more.