The January 12, 2024 edition of The New Yorker has a fascinating article that asks whether Artificial Intelligence (AI) will spell the death of Intellectual Property (IP). The article, by Louis Menand, is a must read for entrepreneurs.
If IP is at risk, the stakes are quite high. To quote Mr. Menand:
“Intellectual property accounts for some or all of the wealth of at least half of the world’s fifty richest people, and it has been estimated to account for fifty two percent of the value of US merchandise exports.”
There are countless unanswered questions concerning how AI impacts IP. Let’s first look at those involving information sourcing. ChatGPT and other large language models learn by processing huge amounts of data. Data are scoured from online sources, including news feeds, websites, social media posts . . . whatever. These include so-called shadow libraries. Inevitably, much of the processed information is copyrighted. To be determined, therefore, is whether the access/use of this copyrighted information by AI is considered fair use.
Additional questions involve AI output. For instance: Are works created by AI copyrightable? Is human authorship a necessary requirement for granting a copyright? What if the work created by AI is “based” on copyrighted material? Like a song that (perfectly) mimics the voice of a popular singer? If so, who owns the copyright?
The questions go on and on.
The courts are being asked to provide answers. In December, The New York Times sued OpenAI and Microsoft seeking damages for their unauthorized use of the newspaper’s archives. The Times is not the first such plaintiff; it certainly won’t be the last. The US court system will soon be awash in lawsuits seeking answers to AI/IP related questions.
It’s all new ground.
Why? Because the Copyright Act of 1976 and its later amendments are hopelessly outdated. Nor is effective new legislation likely. To be charitable, Congress is not up to the task of addressing the problem, at least in the near term. Solutions will likely happen in the form of licensing agreements, copyright protections, contracts, and other legal compromises. To be more precise, such solutions will be available to those with the financial wherewithal to foot the legal bills.
Did I mention that now would be a very good time for young law students to specialize in intellectual property law? At least until AI makes their jobs obsolete.
Peter has spent the past twenty-plus years as an acting/consulting CFO for a number of small businesses in a wide range of industries. Peter’s prior experience is that of a serial entrepreneur, managing various start-up and turnaround projects. He is a co-founder of Keurig.
