Tag: Trial Journal

The Future is Now: Artificial Intelligence and the American Copyright System

July 7, 2023

Photo Credit: https://futureoflife.org/cause-area/artificial-intelligence/ (last visited May 19, 2023).

Authored By: Ben Byard

July 7, 2023

Progress of artificial intelligence (AI) is on the rise and shows no signs of stopping. Recently this technology has exploded in popularity with the likes of ChatGPT and art that is created entirely by AI. These feats can only be achieved after the AI has been properly “trained” to achieve a desired outcome.[i] For many AI models, this training involves taking in many outside images or sources to be able to adequately “learn” what it is trying to do.[ii] This training usually requires thousands or tens of thousands of outside materials to be given to the AI for it to function correctly.[iii] Since most people or companies do not own the requisite amount of images or data themselves, they must use images or data from outside sources.[iv] Checking for copyrights and protections on all of these images would be both extremely time-consuming and expensive, so nearly all AI companies have used copyrighted images to train their AIs without worrying about the potential consequences. This has led to new developments in copyright litigation, where it is unclear whether using copyrighted images to train AI would violate the copyright.

            A very recent case that is currently undecided will provide some of the first laws directly relating to this topic.[v] Getty Images brought a complaint against Stability AI for infringing on their copyright in twelve million images that were used to train Stability’s AI.[vi] While it will take some time for this case to finish, previous case law can still provide some guidance on whether AI would infringe on other’s copyrights. While Stability AI has only responded on jurisdictional grounds to Getty Images, if these arguments fail it is most likely they will make an argument for the fair use of the copyright.[vii] The US Copyright Act allows the use of copyrighted material through the fair use doctrine.[viii] This allows a copyrighted material to be used or reproduced without punishment if the copyrighted work is used “for purposes such as criticism, comment, news reporting, teaching (including multiples copies for classroom use), scholarship, or research. . . .”[ix] Campbell v. Acuff-Rose Music, Inc. also clarifies that the more transformative a work is, the less the other factors against fair use will weigh.[x] This case states that transformative works take the original and add some new value or meaning to it, giving parodies as an example of transformative work.[xi]

This would be the most likely argument for the works produced by AI not to infringe on copyright. AI generators take in thousands upon thousands of images and use those to create a new image based on what the AI has “learned.” Since a single image cannot be used to train an AI completely, it would be hard to argue that an entirely new image created from thousands of photos was not “transformed” enough from the original photo not to be considered transformative for fair use. However, a different problem arises when most or all of the images used for training the AI come from a single source. This is one of Getty’s main complaints, as they claim that Stability used millions of Getty Image photographs while also removing the captions and metadata from those images.[xii] If Stability only used Getty Images material to train their AI, then none of the produced work may be considered transformative enough for fair use. Stability potentially using the AI produced images commercially also may weigh against them in consideration of fair use.[xiii]

Four factors are given when determining whether a copyrighted work falls under fair use. These are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used concerning the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[xiv]

These four factors are the most heavily weighed by courts in copyright infringement decisions, so most arguments should focus on these points. There are potential arguments to be made on both sides, an example being that the work created by AI is transformative, as described earlier. Other arguments that could be made are how much of the work created by AI is currently nonprofit and is for research purposes. AI is still in its infancy, meaning many of the images made by companies using AI have no intention of commercializing these images. While this will most likely change in the future, this current fact favors heavily for fair use. An argument against fair use is that the AI-generated image could potentially not exist without using the copyrighted images. Earlier, it was stated that it would be difficult to argue that a singular image significantly affects what the AI produces. Depending on the sample size used to train the AI, a particular copyrighted image could be highly important to making the AI work properly, meaning this image would be used “substantially” to create the AI-generated image. Furthermore, if AI can take copyrighted images and create very similar facsimiles under the protection of fair use, then this would undoubtedly affect the market for the original copyrighted images, weighing against fair use.

            Another issue to consider is whether the AIs themselves can own a copyright in their work. Currently, only “human authors” can hold a copyright in a product that they themselves produce or inherit.[xv] This was decided in 2018 by the 9th Circuit when there was controversy over whether a photograph that a monkey technically took could own a copyright in that photograph.[xvi] This happened when a wildlife photographer named David Slater left his camera near a reserve of wild monkeys with a mechanism for photos to be automatically taken when a button is pressed.[xvii] A monkey named Naruto pressed the button while smiling at the camera, technically making him the “author” of the photographs.[xviii] The 9th Circuit held that since all the terms used to describe an author or inheritor of a copyright “imply humanity,” animals do not fit in any of these categories and cannot own a copyright.[xix]

            Currently, there have been no other cases or statutes directly addressing this issue, leaving Naruto v. Slater as the sole authority on non-human entities and copyright ownership. This implies that AIs would be in the same category as animals as non-human entities, meaning they cannot own or hold a copyright in something. However, the court in Naruto states explicitly that it is “animals other than humans” that cannot own a copyright or sue under the Copyright Act.[xx] AI is not an animal, meaning it does not fall under this exact definition and is still in a bit of a nebulous area in terms of copyright ownership. This makes sense, as humans did not create animals, and there is, therefore, some “separation” between what an animal creates and what a human creates. The difference with AI is that humans originally made AI, and AI then, in turn, made something else based on the information humans gave it. Is this amount of separation enough to consider an AI image an “independent creation” underserving of copyright protections provided to human creators? Is copyrightable material created by an AI any different than copyrightable material made through other technologies, such as image editing software? For example, people can copyright photos they make through Photoshop, simply editing some original image with tools provided by the program to make a new or transformed image. AI is merely a program created by humans that takes thousands of images instead of a single image to create a new or transformed image. Is the fact that a program produces the image “independently” different than a human simply using a program to modify an image themselves? Or can an AI be considered independent enough to be a separate distinction from a human program? This is a much deeper issue that goes beyond the scope of copyright but is an important question that will almost certainly have many cases pertaining to it in the future.

[i] Jonathan Tarud, AI Model: How Does It Work?, Koombea (March 23, 2023), https://www.koombea.com/blog/ai-model/.

[ii] Id.

[iii] Eugene Dorfman, How Much Data is Required for Machine Learning?, postindustria (March 25, 2022), https://postindustria.com/how-much-data-is-required-for-machine-learning/.

[iv] Id.

[v] Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. May 16, 2023).

[vi] Complaint at 1, Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. Feb. 2, 2023).

[vii] Defendant’s Motion to Dismiss or Transfer this Action, Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. Feb. 2, 2023).

[viii] 17 U.S.C. § 107.

[ix] Id.

[x] 510 U.S. 569, 579 (1994).

[xi] Id.

[xii] Getty Images (US), Inc., supra note 6 at 1.

[xiii] 17 U.S.C. § 107.

[xiv] Id.

[xv] Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).

[xvi] Id. at 420.

[xvii] Id.

[xviii] Id.at 424.

[xix] Id. at 426.

[xx] Id.

American Dream or American Nightmare: The Expiration of Title 42 & What It Means For Asylum Seekers

May 17, 2023

Photo Credit: https://www.aljazeera.com/gallery/2023/5/14/title-42-ends-asylum-rules-change-at-tijuana-san-diego-border

Authored By: Ohtra Awad

May 17, 2023

For many years, the United States has acted as a symbol of new beginnings. A place where anyone can become someone, build a legacy, or live in peace away from the terrors or ruins of their home country. Coined as the American dream, the U.S. has acted as a place of refuge since its founding. The first newcomers to the Americas were those seeking religious freedom, attempting to escape British rule. These American pioneers formed the first colonies with the promise of treating everyone equally and laying the framework for what would eventually become fundamental freedoms for all.

With the expiration of Title 42, the question of whether the American dream still exists begs attention. The Trump Administration introduced the enactment of Title 42 to deter the spread of Covid-19.[i] Title 42 granted the director of the Centers for Disease Control and Prevention (CDC) the ability to block noncitizens from entering the U.S. for public health purposes.[ii] From its enactment in 2020, Title 42 was used more than 2.8 million times to immediately expel migrants to their home country without allowing them to seek asylum.[iii]

Although in place for over three years, Title 42 did not go unchallenged. As seen in Huisha-Huisha v. Mayorkas, a class of noncitizens involving a group of asylum-seeking families brought an action against the Secretary of Homeland Security, alleging violations of several acts, including the Administrative Procedure Act (APA) and the Public Health Service Act which arose from the Title 42 policy that “prohibited introduction into [the] United States of certain noncitizens to prevent [the] spread of Covid-19.”[iv] Here, the court strayed away from the Title 42 policy and decided that memos issued by the CDC introducing certain persons into the U.S. would be suspended.[v] Furthermore, the court decided Title 42 to be “arbitrary and capricious,” which prevented Defendants from applying the Title 42 policy to plaintiff class members.[vi]

As Title 42 expired Thursday, May 11, 2023, the U.S. braces itself for a new era of immigration policies. Set forth by the Biden Administration, the new set of guidelines calls for a harsher crackdown on illegal immigration while providing a new legal pathway for migrants to cross the border more efficiently.[vii] The expiration is anticipated to cause a surge of immigration at the border between Texas and Mexico, roughly 10,000 migrants a day are expected to be crossing the southern border.[viii]

However, the day prior to the expiration of Title 42, President Biden acknowledged that a new rule would be introduced. The administration introduced a new law that has the potential to limit asylum dramatically.[ix] Due to the expiration of Title 42, those that do not use available lawful pathways to enter the United States will face more significant repercussions. Those who arrive at the border without using lawful avenues will be presumed ineligible for asylum, whereas under Title 42, immigration officials were able to quickly turn away migrants at the southern border.[x]

The expiration of Title 42 means that the Biden administration will revert to Title 8 when deciding whether migrants have a lawful reason to seek asylum in the United States.[xi]  Title 8 legislation has been active throughout the usage of Title 42; however, moving forward migrants will now only be subjected to regulations under Title 8. The most significant difference between the two pieces of legislation is that Title 8 typically allows more time for migrants to submit asylum claims than they were granted under Title 42. [xii]

Even though Title 8 will be restored with the expiration of Title 42, many urge Congress to introduce new legislation to supplement Title 8.[xiii] Title 8’s deportation consequences, along with the limited legal pathways to parole some migrants into the U.S. from abroad, has been scrutinized by Biden’s Homeland Security Secretary Alejandro Mayorkas.[xiv] Mayorkas claims that the state of the U.S. immigration lacks vital resources such as personnel, facilities, and transportation.[xv] Mayorkas has anticipated the surge in immigration for approximately two years, which led him to release the DHS Plan for Southwest Border Security and Preparedness in April 2022, which outlined a six-pillar plan to manage an increase in immigration once Title 42 expired.[xvi] The plan was later updated in preparation for Title 42’s expiration.

In addition, the Department of Justice and Homeland Security released a rule on May 10, 2023, implementing an asylum “transit ban” rule.[xvii] The transit ban penalizes those that have entered the U.S. irregularly to fail to apply for protection in other nations they cross through on their way to the U.S.[xviii] In essence, the transit ban would apply to all non-Mexican migrants, except non-accompanied minors, who had not been pre-approved under one of Biden’s parole programs.[xix]  The transit ban is said to be questionable by onlookers as it could endanger the lives of many thousands of people seeking asylum. Moreover, the transit ban will affect people who, even though on U.S. soil, “will be denied the legal right to seek protection”, which could potentially be in violation of U.S. asylum law.[xx] This could have a potential impact on the way this matter is litigated, and which protections are afforded to asylum seekers under the U.S. Constitution.

A similar ban was introduced by the Trump Administration in 2020. Still, it was quickly struck down in Al Otro Lado v. Wolf.[xxi] The transit ban under Trump’s presidency sought to expel thousands of asylum seekers from accessing the U.S. asylum process. The legality of the transit ban, which was applied to asylum seekers who were turned back at the U.S.-Mexico border, was challenged by various legal services organizations.

The question now is whether or not the new transit ban under Biden’s Administration will be struck down as seen during Trump’s Administration. Only time will tell, but for now, we are left with the daunting question of whether this will be an American dream or an American nightmare for those seeking asylum in the U.S.

[i] Title 42 Explained: What is it, why is it ending, what’s next?, The Hill (May 11, 2023), https://thehill.com/homenews/administration/4000948-title-42-explained-what-is-it-why-is-it-ending-whats-next/.

[ii] Id.

[iii] Id.

[iv] Huisha-Huisha v. Mayorkas, No. 21-100 (EGS), 2022 WL 16948610, *1 (D.D.C. Nov. 15, 2022).

[v] Id. at *16.

[vi] Id.

[vii] Migrants Face New Border Reality as Title 42 Pandemic Restrictions Expire, PBS News Hour (May 12, 2023), https://www.pbs.org/newshour/politics/migrants-face-new-border-reality-as-title-42-pandemic-restrictions-expire.

[viii] Title 42 Explained: What is it, why is it ending, what’s next?, The Hill (May 11, 2023), https://thehill.com/homenews/administration/4000948-title-42-explained-what-is-it-why-is-it-ending-whats-next/.

[ix] Id.

[x] Title 42 Immigration Policy Has Expired as Border Officials Prepare for a Possible Influx, NBC News (May 12, 2023), https://www.nbcnews.com/news/latino/live-blog/live-updates-title-42-immigration-policy-set-expire-midnight-rcna83908.

[xi] Id.

[xii] What is Title 8 Immigration Law? And What Happens When Title 42 Ends?, ABC Eyewitness News (May 11, 2023),  https://abc7chicago.com/title-8-immigration-law-42-explained-vs/13234991/#:~:text=Title%208%2C%20which%20includes%20decades,were%20afforded%20under%20Title%2042.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] DHS and DOJ Finalize Rule to Incentive Use of Lawful Immigration Pathways, Homeland Security (May 10, 2023),  https://www.dhs.gov/news/2023/05/10/dhs-and-doj-finalize-rule-incentivize-use-lawful-immigration-pathways.

[xvii] Weekly U.S.-Mexico Border Update: Title 42 Ends, WOLA (May 12, 2023),  https://www.wola.org/2023/05/weekly-u-s-mexico-border-update-title-42-ends/.

[xviii] Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban, American Immigration Council (February 21, 2023), https://www.americanimmigrationcouncil.org/news/department-justice-and-department-homeland-security-release-details-dangerous-new- asylum#:~:text=As%20described%20in%20the%20NPRM,in%20another%20country%20before%20arrival.

[xix] Id.  

[xx] Weekly U.S.-Mexico Border Update: Title 42 Ends, WOLA (May 12, 2023),  https://www.wola.org/2023/05/weekly-u-s-mexico-border-update-title-42-ends/.

[xxi] Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban, American Immigration Council (Feb. 21, 2023), https://www.americanimmigrationcouncil.org/news/department-justice-and-department-homeland-security-release-details-dangerous-new- asylum#:~:text=As%20described%20in%20the%20NPRM,in%20another%20country%20before%20arrival.