Art Tech L@w
COPYRIGHT: The Legal Matrix

My Matrix parody of copyright laws:

Matrix Parody - Long Form

Here are some xkcd comics I found hilariously inspiring:

Top Ten Supreme Court Copyright Holdings
The Constitutional grant of power allows copyright holders limited monopolies to incentivize further creative production. Does the case history bear this out?
Golan v. Holder, 132 S.Ct. 873 (2012) The Supreme Court held that works in the public domain can be pulled out and put back undercopyright. This was in response to treaties signed in the Uruguay round of negotiations. It means any good-faith users may become liable for statutory damages upwards of hundreds of thousands of dollars forcopyright infringement, so the law can encourage further creative production by artists who have been dead for more than 70 years.

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005) Grokster effectively established the “inducement doctrine” that invalidated Sony’s safe harborby finding secondary liability where a technological platform existed to induce infringement.

Eldred v. Ashcroft, 537 U.S. 186 (2003). Approved the constitutionality of the Sonny Bono CopyrightTerm Extension Act, which extended copyright protection to life + 70 years and applied retroactively. Congress appeared to be extending protection ad infinitum. The Supreme Court upheld this, past any reasonable expectation of incentivizing dead people to produce more, and violating both Congress’ Constitutional grant of power and the First Amendment.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571, 114 S. Ct. 1164, 1167, 127 L. Ed. 2d 500 (1994) Reinforced parody exception to copyright, and holding that commercial use does not create presumption against fair use so long as the use is transformative. Fair use is highly fact dependent, with no bright-line rules.

Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) Feist established a cornerstone of what copyright IS, establishing that a copyrightable work must evidence at least a minimal amount of originality, and rejecting protecting for purely factual compilations and databases.

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, (1985) Utilizing content from an unpublished work is less likely to be fair use insofar as an author has a right to control the first public appearance of their work. Taking the “heart” of a work for a commercial purpose is presumptively an unfair use.

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984) Sony is a landmark Supreme Court case that established a copyright safe harbor to protect technological development. If a device is sold for legitimate purposes and has substantial non-infringing uses, then the manufacturers are buffered from secondary liability for contributory copyright infringement. Also known as the “Betamax case,” this case became an important, though ineffective, defense to liability for P2P sites.

Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460 (1954). Extending copyright protection to the aesthetic elements of a functional object.

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct.279 (1884) Providing the old-school precedent which grants copyright protection to works produced on a digital platform, Burrow-Giles held that even photography – which utilizes a machine to produce creative content – is copyrightable insofar as it embodies the original intellectual conceptions of the author.

Post #4 in Copyright 500 SeriesCopyright Law in 500 Words or Less

Creativity Machines

Artificial intelligence (“AI”) is, simply put, “The science and engineering of making intelligent machines.”[1] So research into AI has resulted in a lot of the technology we associate with the modern age.

Neuroscientists look deep into the workings of the brains, and are trying to build an artificial brain from scratch by running simulations of each individual neuron, through each neocortical column, up through an entire mind. (Check out If I Only Had a (Blue) BrainSkynet and HAL are AI archetypes to be aspired to even while they’re feared, but looking into possibilities of artificial sentience makes us look critically at what makes us human. What is consciousness? Is it something we can build up or that just appears with self-awareness?

There is a lot of debate as to what an intelligent machine would be. Would it need to merely respond to input like a human, or really think like a human, be self-aware, or do its own thing apart from human intervention? Similarly, artificial creativity (aka computational creativity) aims to figure out what creativity is in a human, then replicate or enhance it using artificial methods.

What is creativity, and who has it?

A key development within AI programs is the incorporation of dynamic processes we associate with intelligent life. In a shift away from Turing-tradition weak AI, some projects have begun incorporating elements inspired from biological functions. Particularly salient are algorithms inspired by genetics and network structures based on neurological connections.[2] Evolutionary algorithms, of which genetic algorithms are a subset, generate solutions to optimization problems using strategies such as reproduction, mutation, and inheritance.

Artificial neural networks were inspired by the inner workings of the brain and are often adaptive systems that change structure in response to information forms.[3] Neural networks are generally “trained” by being provided with paradigmatic examples from the domain of interest — such as art, science, or technology. The network can learn by increasing or decreasing the dominance of any given neural node depending on the desirability or correctness of its output, just as neurons within a human brain reinforce commonly used neurological pathways but prune undesirable connections.[4]

Using neural networks, Stephan Thaler built a “Creativity Machine” in 1994 that autonomously produced patentable inventions and composed music. Thaler compared the neural circuitry in the machine, achieved through genetic programming, to reflex reactions in the brain and spinal cord. The Creativity Machine consisted of two interconnected neural networks. One network was designed to be “noisy” by randomly removing small bits of information it had learned during training. The noise allowed the first network to generate novel output by filling in the missing information with patterns it extrapolated from training data.  The other network was used to analyze the output and adjust the parameters of the first network to optimize performance. If the first network was too noisy, then it would generate output of dubious usefulness, yet if it was too constrained, it would not generate much at all.

If a machine is creative in and of itself, no one could claim authorship in what the machine produces. If the artificial neural network learns for itself, then IT would have a colorable claim to the intellectual property rights in its creations. Since machines aren’t terribly interested in economic incentives and proprietary rights, then what it produces should smoothly flow into the public domain. Early generations of the Creativity Machine created novel chemical patents and poetry, and more recently creativity machines have been used by the US military to design new weapons. The latest versions of the Machine have incorporated  self-training artificial neural network objects (STANNO) that essentially allow the machines to “dream” in a virtual reality and run simulations and exercise crucial skills that it can perfect in an ongoing bootstrapping cycle. These machines can learn and train themselves with little to no human input beyond the initial engineering. As such, there are instances when there is no human creativity directly involved in the “creative” output, even if humans built the machine itself.

In closing: many have speculated that some day machines will become intelligent enough to self-manage and self-improve. Well, it’s happening. Perhaps it’s time we thought about what we train these machines to be.

Broken Patents and Obvious Art

The Constitution grants exclusive intellectual property rights “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[1]

There are a number of prerequisites which must be met before apatent can be granted. I’ve covered software patents already, yet the patent system covers much more than software.Copyright protects the literal expression of things, yet excludes ideas, methods, and systems as the purview of patent law.[2]

Patents are disallowed for subject matter in the categories of “laws of nature, natural phenomena, and abstract ideas.” In order to obtain a patent, an invention must be: (1) patent-eligible subject matter; (2) useful; (3) novel; and (4) nonobvious.

Nonobviousness seems to have become one of those things that, despite it’s “obviousness” to the layperson, has gone the way of the copyright “creativity” requirement. More specifically: trivial advances or those that are logical steps to those “skilled in the art” are not supposed to be patentable. Yet somehow, they are.

Filed in 1997, granted in 1999:

United States Patent number 6,004,596 for a “Sealed Crustless Sandwich.”

A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed be-tween the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is pre-vented from radiating outwardly into and through the bread portions from the surrounding peanut butter. (Boyle, The Public Domain)

Filed in 1997, granted in 1999:

United States Patent number 5,960,411 for Amazon’s patent on one-click check out:

The 1-Click patent, which lists Amazon founder and CEO Jeff Bezos as one of its inventors, was filed in 1997 and refers to a “Method and system for placing a purchase order via a communications network.” Amazon in the past has used 1-Click to sue rival bookseller Barnes & Noble and licensed the technology to Apple. (from

Apple’s patent on making phone numbers in texts and e-mails dialable on click:

In one prong of the many-pronged attack that Apple has been making on Android, it’s scored a victory at the International Trade Commission, where it’s been determined that the idea of making a phone number in an email or on a web-page clickable to dial it is so special and wonderful that only Apple could possibly come have up with it. (from

While I have my reservations about the over-reach of copyright law, at least independant creation is an affirmative defense in an infringement suit. Not so in patent law, where even if you innovate solutions to common problems on your own, you are still vulnerable to infringement suits. Hence, the over-reach of patent grants tend to be more insidious: even if you independently solve a novel problem to the benefit of society, you could still be liable for enormous fines should your solution be similar enough to a previously patented solution.

To avoid or counter possible legal liability, companies attempt to hoard patent to buffer themselves against possible liability (Google and their purchase of Motorola). Alternatively, smaller entities could be forced out of the business by patent trolls (Recent victory/quick description of patent trollsrighthaven)

Anyways. It gets even more ridiculous. Check out Bloomberg Businessweek for some of the silliest patents ever filed (not that there’s a shortage of ridiculous patents). [4] Which makes me increasingly dubious that patent law is fulfilling its objective of incentivizing the progress of science and the useful arts. Soon the Onion’s 1998 satire “Microsoft Patents Ones and Zeros,”[5] will no longer seem so far-fetched, especially in light of Amazon’s recent patenting of social networking. (see Albert’s comment below)

Intentional Art or Public Domain?

MonkeyfaceCreative computer

Do you need to intend to produce a work of art in order to get copyright it? After all, scientists often apply for patent rights in discoveries they make while they are researching something else. How attenuated does that intention have to be before it’s close enough to qualify for copyright protection?

Copyright law has grown to be highly inclusive, yet there does come a point when an object or work is so lacking in human creativity that copyright will fail to apply. Creative production may occur intentionally — through the labor of an artist or author in their creative endeavor, or unintentionally — as when an appropriation artist finds an object and presents it in a new light. Copyright law is meant to apply to the first, yet unintentional creations are beyond the scope of copyright.

Purely mechanized works lack sufficient creativity to qualify for copyright protection, as do works created by animals or natural forces. For example, this past summer a popular photo a monkey took of itself was held to be uncopyrightable. The monkey had stolen photographer David Slater camera — no intentionality could be traced to the closest “human author.” The monkey itself could not claim or assign copyright — animals have no legal standing. What was left was public domain. Objects created by natural forces are uncopyrightable as well. Even if a human recognizes, polishes, and displays a particularly beautiful piece of driftwood, there is no intentionality in its genesis. However, an artist may claim rights in whatever elements were intentionally added.

A cornerstone of copyright law is the ideas/expression dichotomy. Namely, the expression of things is copyrightable while the ideas behind them are not. The monkey picture raises the interesting question: Would there be a copyright if Slater intentionally left his camera out for the monkeys, and no copyright if it was a complete accident? Slater claims copyright because the monkey cannot. Yet while he initially claimed the whole thing was an accident, he eventually changed his tune and declared that he had the artistic idea to leave his camera out in the hopes that monkeys would take it.

A similar question would arise if it was an autonomic computing program (read: AI) producing the content. When people use machines to produce some form of artistic expression, they receive rights to that creative work. It would be a little different if the machine itself is the sole author, and any humans involved in the creation of the machine intended it to make anything creative. What happens if a machine goes haywire and starts producing some masterpiece form of art? Still outside of copyright, according to the Copyright office. The machine was made with no intention of producing a novel work. But where would the line be?

If copyright can only attach to a human author, and there is no human author… who gets the copyright? The public domain, one would hope.