On: All AI-generated code should be Open Source

In the United States the Copyright Office actually has guidance on this that I feel most people aren’t aware of.

https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...

An excerpt, with emphasis mine:

• Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.

• The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.

• Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.

• Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.

• Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.

• Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.

• Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.

• The case has not been made for additional copyright or sui generis protection for AI- generated content.

I am sure there will be many more legal battles and probably legislation about this to come.

So...

• What about non-ai code generators (such as https://heyapi.dev/)?

• And what about a code generator that is a hybrid? (So: Something like heyapi but with LLM/agents intertwined)

This is why I keep a comprehensive and exhaustive record of infrastructural, architectural, business logic and code-level decisions in the form of tasks/issues for everything I build. It’s literally a real-time record of my personal involvement in the design of the system.

Everyone should have an engineering notebook. A lot of people will find out the hard way that engineering notebooks are just table stakes in the new era.

Having said that, it's important to point out, at least as far as attorneys have advised me, that notebooks do not protect you from copyright claims if an LLM generates a section of your code that is a verbatim (or near verbatim) copy of already copyrighted code. So if you're using llm's to generate something similar to some open source project somewhere, tread lightly. I assume using llm's to generate something similar to some proprietary software package would be less of an issue since the llm would never have had access to that software's codebase in any case.

So copyright only applies if there's sufficient human control, and prompts alone do not demonstrate sufficient control. Exactly what counts as "sufficient human control" must be analyzed on a case-by-case basis.

That means I can't know if my AI generated code can be copyrighted unless someone takes it to court?

It doesn't say much about the copyrights of the many authors whose work was in the model training data, or does it?

Courts have been deeming that fair use due to the transformative nature.

"Transformative nature" is just one of several factors that go into deciding if something is fair use. Also, fair use is decided case by case in the courts, so one can't say that "training LLMs on copyrighted materials is fair use".

Model vendors know this isn't fair use, given that they're self-censoring the training and/or generation of copyrighted materials by entities big enough to hurt them. As usual, the rest of us have no recourse other than bend over and take it.

Yes.

One precedent is that it's not unusual for artists to practice by going to art galleries and sketching or drawing the art on display. It's a standard art student assignment. If that's not a copyright violation, an LLM doing something similar isn't.

How is the LLM case similar at all? As soon as the student’s use of the museum piece crosses into the commercial realm (eg pay the student to draw it for you), I expect you to have legal trouble.

Wrong. You're missing the point. A student goes and trains on preexisting work.

They don't sell that exact work verbatim. It's part of their training as an artist. They don't sell their student assignment. It prepares to them to go on and create their own works, which of course, then they can sell.

In the same way the LLM is synthesizing new works based on training, not a 1:1 copy.

I'm not endorsing a particular perspective but you need to at least understand the argument if you're going to dismiss it.

What if it’s verbatim though? If I go to a museum and photograph the work and then sell prints of the photo is that find also?

> LLM doing something similar isn't.

Why? An LLM isn’t a human. Why should the same rules apply to it?

the same rules apply to the humans building, operating, and using them

objects don't have legal entity status

Sure it does - completely illegal. Also, to use someones work (a result of creativity) in a certain way you need a permission to use it that way - even if you owned a book you need a specific permission to feed it to llm. However there's also the golden rule - who has gold makes the rules.

> Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.

Does creatively hitting RETURN count? Asking for a friend.

It does not, even if you prompt it to do stuff, it does not.

"Prompt to do stuff" could mean "make me a game. make it good" or it could mean line by line guidance and specific input on every algorithm.

Sometimes I prompt simply to save me typing.

How dare you disrupt the narrative with facts and moderate positions!

OP would much prefer their fantasy of tearing the world down with “one weird trick” that only they were brilliant enough to notice.

seems rather vague

Of course it is vague, these things always are for both good reasons (it avoids objective limits creating silly situations between what is protected and what can be had through an obvious loophole) and bad (written by lawyers to keep lawyers in business interpreting and arguing about it).

It is fairly explicit in saying that what AI makes for your is not copyrightable, the vague comes from how much work you need to do to make it your output and not the AIs. Too many people seem to equate "asking for something to be made" with "I made this!", as difficult as it will be to make a prescriptive rule about that which pleases enough people (you'll never please everyone) it would appear to be necessary unless we just accept the free-for-all "no one owns anything because it can just be copied, and the copies copied too" option.

It’s always been rather vague. It sort of has to be because humans are always thinking up new ways to express themselves creatively.

Why did Andy Warhol hold the copyright on his painting of a Campbell’s soup can?

Reasonable people have been disagreeing about where human expression begins and ends for centuries.

Wait until you learn about how we determine whether use of copyrighted content is an infringement or not:

https://fairuse.stanford.edu/overview/fair-use/four-factors/

> Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.

So slop doesn’t qualify for copyright. I’m not sure why you didn’t emphasize this one.

It’s so reasonable, it’s almost offensive. /s

I’ve encountered (many times) people talking about the copyright office as if they don’t support copyright of things touched by AI and I’m constantly correcting them that their guidance is driven by human expression (and not the tools used). It seems like a lot of people don’t want to accept that a reasonable premise is set because it doesn’t fit their agenda or outrage engagement.

Would you argue that the output of a zero or one shot prompt was sufficiently influenced by human creativity to qualify for copyright?

With the caveat that this is my own extrapolation of the rules - and what I think is reasonable: How creative was the prompt?

"Translate my very detailed pseudocode into Ruby: <pages of pseudocode>": probably.

"Write me a game about a horse. Don't stop until it's finished. Make no mistakes.": probably not.

And unfortunately for us engineers, there's a very big, fuzzy, not-precisely-definable range in between of "I'll know it when I see it".