[00:00:01] Speaker 01: Place number 23-5233. [00:00:04] Speaker 01: Steven Thaler, an individual, an appellant, versus Sheryl Perlmutter in her official capacity as Registrar of Copyrights and Director of the United States Copyright Office and U.S. [00:00:13] Speaker 01: Copyright Office. [00:00:15] Speaker 01: Mr. Abbott, pretty appellant. [00:00:16] Speaker 01: Mr. Crown, pretty appellate. [00:00:20] Speaker 03: Good morning. [00:00:21] Speaker 03: May it please the court, my name is Ryan Abbott, Counsel for Appellant Steven Thaler. [00:00:25] Speaker 03: This is a case of first impression, whether an original work generated by an AI system in the absence of a traditional human author is copyright. [00:00:35] Speaker 03: In this case, the work satisfies all the statutory requirements under the Copyright Act to receive protection, but the Copyright Office has denied registration by reading a requirement into the Act that does not exist. [00:00:46] Speaker 03: Nowhere in the Copyright Act does it say that a work requires a human author, much less a traditional human author, as the office is now requiring. [00:00:54] Speaker 03: The Copyright Act does not define the term author, and it expressly permits non-human authorship by allowing corporations, governments, and other non-human entities to be authors. [00:01:04] Speaker 02: I don't understand why you're saying this does not involve a traditional human author. [00:01:10] Speaker 02: I mean, the administrative record document says that there was no human involvement. [00:01:16] Speaker 02: This was completely autonomous. [00:01:19] Speaker 02: So, in your theory for authorship wasn't that [00:01:29] Speaker 02: Dr. Thaler was an author and the machine assisted him in authoring or something, some sort of work for hire or some other sort of theory was that the machine itself was completely the author. [00:01:46] Speaker 02: So it's not that this is a non-traditional human author. [00:01:51] Speaker 02: It's nothing human at all about this under your theory of copyright ownership. [00:01:57] Speaker 03: Well, Your Honor, I respectfully would disagree with several aspects of that and that that does not accurately reflect the administrative record, although that is what the Copyright Office is saying. [00:02:06] Speaker 03: The record shows that, you know, the Copyright Office's test is they will grant copyright if a human rather than an AI meets the traditional elements of authorship. [00:02:16] Speaker 03: And the submission noted that the AI autonomously made the image. [00:02:20] Speaker 03: That isn't to say that Dr. Thaler wasn't involved in it. [00:02:23] Speaker 03: The registration also said that Dr. Thaler made and used the AI to make the image. [00:02:28] Speaker 05: Now, this fit into the Copyright Office's test, which is not in the Copyright Act, which is... Hang on, so your application is author, creativity machine, author created, 2D artwork created autonomously by machine. [00:02:43] Speaker 05: And only thing receiving the Thaler is ownership of machine. [00:02:46] Speaker 03: Well, that was in the registration form. [00:02:48] Speaker 03: And then there were a series of submissions in the request for reconsideration that expanded and elaborated on the role of this. [00:02:54] Speaker 03: And those submissions explain. [00:02:56] Speaker 05: Did you change that then? [00:02:57] Speaker 05: Was that no longer accurate? [00:02:59] Speaker 03: Well, Your Honor, that is accurate. [00:03:01] Speaker 05: OK, then it's autonomously made by the machine. [00:03:04] Speaker 05: And Stephen Thaler's only connection is he owns the machine. [00:03:06] Speaker 03: Well, no, Your Honor. [00:03:07] Speaker 03: That is not the full record. [00:03:10] Speaker 03: That was the one-page registration form. [00:03:12] Speaker 03: The submission explains, which is in the record, [00:03:15] Speaker 03: The machine did the thing, one traditionally associates with authorship, making directly the image. [00:03:22] Speaker 03: It also explained that Dr. Thaler built and used the machine to make the image. [00:03:25] Speaker 03: It's not claiming that he did. [00:03:27] Speaker 05: But the machine acted autonomously. [00:03:29] Speaker 05: Have you changed, it says on the form, that the machine autonomously created the image? [00:03:36] Speaker 03: Right. [00:03:36] Speaker 03: And I think, Your Honor, this may be [00:03:39] Speaker 03: having to do with how autonomously is used in computer science. [00:03:42] Speaker 03: It is automating the traditional act of authorship. [00:03:46] Speaker 03: So for example, if I ask my phone, generate a creative image, and it does, the phone is automating the traditional elements of authorship. [00:03:55] Speaker 03: Nevertheless, there is a human originator who programs the phone to do that, who instructs the phone to do something. [00:04:03] Speaker 03: It is both true that the machine autonomously traditionally conceived of the elements of authorship and that Dr. Thaler originated it by building and using a machine to make the image. [00:04:14] Speaker 02: Then why not just have Dr. Thaler say he's the author? [00:04:19] Speaker 03: Well, that is one of our alternate arguments that Dr. Tyler is the author, but the Copyright Office. [00:04:23] Speaker 02: You didn't put that on the registration form and that's not the issue before us because the issue before us is that the Copyright Office didn't approve your desired [00:04:34] Speaker 02: registration the way that your client articulated it on the form? [00:04:39] Speaker 03: Well, respectfully, Your Honor, we disagree with that. [00:04:41] Speaker 03: That was in the submissions and the request for reconsideration that the copyright could also go directly to Dr. Thaler as the user, programmer and owner of the machine that made the image. [00:04:51] Speaker 03: That is in the record. [00:04:52] Speaker 03: The district court did not acknowledge that. [00:04:54] Speaker 03: The Copyright Office has not acknowledged that, but that is in the submissions, the Copyright Office in the request for reconsideration. [00:05:00] Speaker 05: The case before us, in your brief, is a creative work generated by an artificial intelligence system in the absence of direct contribution by a traditional human author, copyrightable. [00:05:10] Speaker 05: Is that accurate? [00:05:11] Speaker 04: Yes. [00:05:12] Speaker 05: OK. [00:05:13] Speaker 05: And so it's created in the absence of any direct contribution. [00:05:17] Speaker 05: Well, I think- Direct is someone had to build the machine. [00:05:19] Speaker 05: Well- Someone had to turn the machine on. [00:05:21] Speaker 03: So one of the questions that's posed is- Is that accurate? [00:05:24] Speaker 05: What do you mean by direct contribution? [00:05:26] Speaker 03: Well, precisely, right? [00:05:28] Speaker 03: What does it mean to author or originate a work? [00:05:31] Speaker 03: The Copyright Office's compendium says that if the traditional elements of authorship are done by an AI, you can't get a copyright. [00:05:38] Speaker 03: And that is the position of our case. [00:05:40] Speaker 03: The AI did do that. [00:05:42] Speaker 03: But authorship and originality [00:05:44] Speaker 03: mean that a work created and stemmed from someone and came as a result of someone's efforts. [00:05:52] Speaker 03: That is all also true, that if not for Dr. Thaler building a machine and using a machine to make an image, the work wouldn't exist. [00:05:59] Speaker 03: And so as the copyright office thinks of an author, he is not an author. [00:06:04] Speaker 03: As I would urge this court to consider an author, he is an author because all it means is Dr. Thaler caused the work to come about [00:06:12] Speaker 03: But we did want to be candid that this was not done in the way that one, you know, paints a picture. [00:06:18] Speaker 03: He instructed a machine to do something that it then did. [00:06:20] Speaker 05: If I tell my printer, I turn it on, I purchase it. [00:06:25] Speaker 05: Let's say actually I'm a really, this is totally made up. [00:06:28] Speaker 05: If I actually knew something, I built my own printer. [00:06:31] Speaker 05: I turn it on, I pick something up, tell it to print. [00:06:35] Speaker 05: It's printing, and then all of a sudden, it jams up. [00:06:38] Speaker 05: And instead of just reproducing information, outcomes, a Shmiri image created entirely by the machine because it jammed up. [00:06:49] Speaker 05: Is that, have I made an indirect contribution to the creation of that Shmiri image work? [00:06:55] Speaker 03: Yes, Your Honor, and I would say that if- Do you say that I could get a copyright? [00:06:59] Speaker 05: in that miscue by the jammed machine? [00:07:02] Speaker 03: I would say if the work is original, then yes. [00:07:05] Speaker 05: Yes, we'll say it's original. [00:07:08] Speaker 03: Okay, then I would say yes. [00:07:09] Speaker 05: It's a schmear like I do. [00:07:10] Speaker 03: If you caused an original work to come about and you are the only human author, then yes, you would be the author. [00:07:18] Speaker 05: And asking them to do something that is actually not copyrightable. [00:07:22] Speaker 05: Correct. [00:07:23] Speaker 05: Copy stuff. [00:07:24] Speaker 03: Well, and I think, Your Honor, when one- And out it comes. [00:07:26] Speaker 05: I have created. [00:07:27] Speaker 05: That's your argument here? [00:07:28] Speaker 03: Yes, Your Honor. [00:07:29] Speaker 05: Okay. [00:07:30] Speaker 03: Well, Your Honor, I think- That's the argument you presented. [00:07:32] Speaker 03: In the creative process, one does things all the time that don't necessarily result in an intended outcome, and these remain original works. [00:07:39] Speaker 03: An originator literally means the work came as a result of someone's effort. [00:07:44] Speaker 03: Someone had possession over the [00:07:46] Speaker 05: And if this court is looking for a human author, the result of efforts and possession are different things. [00:07:52] Speaker 03: Well, indeed they are. [00:07:54] Speaker 03: But in both cases, Dr. Thaler, on the record, would be the author of this. [00:07:58] Speaker 03: And both are consistent with the definition of authorship. [00:08:00] Speaker 05: I thought your theory was this was a work for hire. [00:08:02] Speaker 03: Well, that is an alternate theory that we're arguing, that under the work for. [00:08:05] Speaker 05: Again, where in the record did you say you're not just arguing for hire, which is what your application says? [00:08:13] Speaker 03: These were in the request for reconsideration where it noted that the AI was the proximate author of the work and that it should go to Dr. Thaler either by operation of law or under the work for hire doctrine. [00:08:24] Speaker 05: What operation of law would there be other than a work for hire? [00:08:28] Speaker 03: By possession or accession. [00:08:32] Speaker 05: Is your common law property theory? [00:08:34] Speaker 03: And it is a theory that applies to ownership of tangible and intangible property in a wide variety of concepts. [00:08:41] Speaker 05: Ownership is not creation. [00:08:43] Speaker 05: What is your best case that ownership is what counts as authorship under the Copyright Act? [00:08:49] Speaker 03: Oh, I'm not suggesting that ownership is what counts as authorship. [00:08:52] Speaker 05: You just did. [00:08:53] Speaker 05: You just said because he owns it under common law, he possesses it, and so he's creator. [00:08:57] Speaker 05: He's the author of it. [00:08:58] Speaker 03: No, Your Honor. [00:09:02] Speaker 03: possesses the work. [00:09:03] Speaker 03: Possession is a basis for ownership. [00:09:11] Speaker 03: Yes. [00:09:13] Speaker 03: Sorry, I got a little mixed up there. [00:09:16] Speaker 03: I mean, one theory of unowned property is if the AI made an image that's original and protectable and no one else owned it, then he owned it by first possession the way one owns unowned property by first possession. [00:09:29] Speaker 05: That's not authorship. [00:09:31] Speaker 05: Unless you're calling it work for hire. [00:09:33] Speaker 05: Well, which is why we argue that also I am getting profoundly confused by what your theory is here. [00:09:39] Speaker 05: Our theory is that for hire and that can as a matter of law make something created by one employee automatically. [00:09:47] Speaker 05: The employer becomes the author or is deemed to the author for purpose as a matter of law. [00:09:52] Speaker 05: I asked you for another whatever you said operation of law apart from work for hire would make him. [00:09:58] Speaker 05: I thought you said would make him the author. [00:10:00] Speaker 05: I don't care about owning. [00:10:01] Speaker 05: I care. [00:10:01] Speaker 03: No, no, no. [00:10:02] Speaker 03: That would make him the owner, not the author. [00:10:03] Speaker 03: I'm sorry. [00:10:04] Speaker 05: We only care about authors. [00:10:06] Speaker 03: Right. [00:10:06] Speaker 03: And so there are three options for how authorship could work if the court finds this is a protectable original work, which we believe it is. [00:10:13] Speaker 03: First, that the AI is the author because it was factually the proximate creator of the work and that Dr. Thaler owns it by operation of law. [00:10:20] Speaker 03: Second, that Dr. Thaler is deemed the owner under the work for hire doctrine. [00:10:23] Speaker 03: Or third, that Dr. Thaler is directly the author because he is the originator of the work even though he didn't make a direct traditional sort of contribution to the work. [00:10:32] Speaker 05: That's just another way of your first argument. [00:10:34] Speaker 05: Your third is just rephrasing your first one. [00:10:36] Speaker 05: I don't have to make any contribution to it. [00:10:38] Speaker 05: It can be autonomously created by the computer as long as there's a human that turns a machine on, maybe builds a machine. [00:10:44] Speaker 03: Well, well, exactly. [00:10:45] Speaker 03: I mean, but that is a contribution. [00:10:46] Speaker 05: That's going to be stating up your first argument. [00:10:48] Speaker 05: And that only works if the matter created by the image, the work, [00:10:54] Speaker 05: is still, under your third theory, the work is still autonomously created by the computer. [00:11:00] Speaker 05: That hasn't changed. [00:11:01] Speaker 03: That hasn't. [00:11:02] Speaker 05: What you're doing is adding, you're reminding us that he built and owns the machine, maybe turned it on that morning. [00:11:07] Speaker 03: Well, Your Honor, under the third theory, he directly qualifies as an author by virtue of what he did, which was indirect, which was building and using a machine. [00:11:16] Speaker 03: Under the first theory, he is merely acquiring. [00:11:19] Speaker 05: Building's got nothing to do. [00:11:21] Speaker 05: Well, I mean, sorry, Kodak builds cameras. [00:11:25] Speaker 05: And so therefore they can be the authors of pictures that someone takes with a Kodak camera. [00:11:30] Speaker 03: Well, in fairness, much like Borough Giles, people are the authors of pictures that their cameras take. [00:11:38] Speaker 05: People can take the photo. [00:11:39] Speaker 05: Come on, the analysis there was all about the artistry and setting up the photo, the angles, the lighting, the image you choose to do, how you choose to do it, how you frame the person. [00:11:47] Speaker 05: That's not done by Kodak. [00:11:49] Speaker 03: That's not done by Kodak, but that is increasingly done in an autonomous fashion, you know, compared to Napoleon Cironi. [00:11:56] Speaker 03: I'll leave the remainder of my time for rebuttal if that's all right. [00:12:00] Speaker 05: Sorry, do you have any other questions? [00:12:02] Speaker 05: Do you have any questions, Judge Rogers? [00:12:04] Speaker 05: No, thanks. [00:12:05] Speaker 04: All right. [00:12:05] Speaker 04: Thank you. [00:12:17] Speaker 05: Can you start by telling us what the question is in this case, according to the administrative record? [00:12:22] Speaker 00: Of course, good morning, Nicholas Crown for the government. [00:12:24] Speaker 00: The question in this case is narrow to whether under APA review, the Copyright Office correctly denied a registration application that claimed on its face that the work was autonomously generated by an AI and identified as the author, not a human being, but the AI. [00:12:41] Speaker 00: Judge Wilkins, you asked some questions about what was in the administrative record. [00:12:44] Speaker 00: I think you're exactly right. [00:12:45] Speaker 00: There are a couple other citations I'd like to give the court, maybe working backwards, in the district court. [00:12:51] Speaker 00: In fact, at the summary judgment stage, Dr. Thaler asserted it was an undisputed material fact that, quote, there was no issue of human involvement in this case. [00:13:03] Speaker 00: That was the basis on which the agency rendered its decision and made that clear in footnote [00:13:07] Speaker 00: on second reconsideration that it understood that there were no questions of human involvement. [00:13:13] Speaker 00: Dr. Thaler was not claiming that he was the author of this work. [00:13:17] Speaker 00: Instead, his theory, this was a test case, he was asserting that an autonomously created image that was generated by a non-human AI was the author. [00:13:27] Speaker 00: As we pointed out in our papers, as the agency pointed out on first and second reconsideration, and as the district court pointed out, [00:13:35] Speaker 00: the statutory text and structure make clear that authors are human beings. [00:13:40] Speaker 00: As for the other theories that Dr. Thaler has presented here, for example, the work made for hire doctrine, that just doesn't work. [00:13:47] Speaker 00: The Supreme Court made clear in the Reid decision, there are two mutually exclusive ways in which you could have a work made for hire. [00:13:54] Speaker 00: Dr. Thaler doesn't make any arguments that this was a specially commissioned work because he concedes his AI can't enter the contracts or the arrangements necessary there. [00:14:01] Speaker 00: And again, he conceded that his AI is not his legal employee. [00:14:07] Speaker 02: Can I just ask a procedural question? [00:14:10] Speaker 02: Of course. [00:14:10] Speaker 02: If the registration form says one thing and then [00:14:14] Speaker 02: The copyright office denies the registration, and the applicant moves for reconsideration. [00:14:25] Speaker 02: And they have a different theory. [00:14:26] Speaker 02: Like they started saying, well, I'm the author for whatever reason that gets denied. [00:14:33] Speaker 02: And then they say, OK, I'm under the work for hire doctrine. [00:14:38] Speaker 02: I should be registered as the author [00:14:41] Speaker 02: Do they have to file a new registration form or does the fact that they assert that in their motion for reconsideration kind of essentially amend their registration? [00:14:54] Speaker 00: I think it depends on the circumstances. [00:14:56] Speaker 00: If it's an example here where the theory is diametrically opposed to what was on the face of the application and was the basis of the decision in the first place, I think it would be a tough argument to say all you're doing is supplementing or amending the registration. [00:15:07] Speaker 00: I think Dr. Thaler, in some circumstances, could generate a new image. [00:15:10] Speaker 00: He could file a new application, raise the same theories that he seems to be raising in federal court, but he did not raise before the agency in the first instance. [00:15:20] Speaker 05: What does it mean to amend? [00:15:23] Speaker 00: As pointed out in our brief, there are circumstances when there can be correspondence between the registration specialist and the applicant if it looks like on the face of the application is a mistake or something is not particularly clear. [00:15:35] Speaker 00: So in the AI context, as the agency made clear in its guidance document in March of 2023, there are circumstances when [00:15:43] Speaker 00: The agency will register works that contain AI-generated material, but that might require the applicant to disclaim certain parts of the work that was generated exclusively by the AI. [00:15:55] Speaker 00: And in those circumstances, you could have an amendment to the application where the new statement is disclaiming some parts of the work, while other parts can be entitled to copyright protection, or at least entitled to registration, which is prima facie evidence that you have a valid copyright. [00:16:11] Speaker 05: One of your arguments in your brief was about the inability of machines to hold the property rights that come with the copyright and license and to pass things on to heirs. [00:16:24] Speaker 05: How do you reconcile that with the Supreme Court's decision in Belford versus Scribner in the 1800s that recognized the copyright in a woman even though a woman could not have any personal property rights? [00:16:35] Speaker 00: I think there, what we're talking about is the 1976 act. [00:16:39] Speaker 00: And what the question is here is whether authorship requires a human being. [00:16:44] Speaker 05: So I think that's- So it didn't require someone who could have property rights in the 1800s, but it does now? [00:16:50] Speaker 00: Well, no, I guess I'm coming up from a different angle. [00:16:52] Speaker 00: So for purposes of the 1976 act, the way we know that an artificial intelligence or a machine, for example, my car, my navigation system, Siri, if I ask for weather updates, the way we know that is not going to be the author of a creative work is, among other things, because it can't actually have any of the rights that accrue to a human being as recognized in the 1976 act. [00:17:13] Speaker 05: A young child creates something. [00:17:16] Speaker 05: They can't have property. [00:17:17] Speaker 05: They aren't of the age to consent to anything or to exercise property rights. [00:17:22] Speaker 05: It all has to be done by someone else. [00:17:26] Speaker 00: I want to be clear what we're talking about here, because I think there is a distinction between having property rights and being an author. [00:17:32] Speaker 00: So for purposes of authorship, what the Copyright Act requires is there has to be some level of originality, which the Supreme Court has explained involves a level of creativity. [00:17:41] Speaker 00: I think a human child could exhibit. [00:17:44] Speaker 05: But for purposes of the Copyright Act, create a machine, create something that's original and has some element of creativity. [00:17:51] Speaker 05: And so I thought part of your argument was looking at the structure of the statute [00:17:55] Speaker 05: has all these references to sort of handling a property and treating the copyright that you obtain as a property interest and passing it on, or licensing people to use the material, which [00:18:10] Speaker 05: Sure. [00:18:11] Speaker 05: It couldn't do. [00:18:11] Speaker 05: And so I'm asking, how does that apply then if you have a young child or someone who, for whatever reason, is under guardianship and can't exercise property rights? [00:18:20] Speaker 00: Well, even in the guardianship example, we're still talking about human beings. [00:18:23] Speaker 05: And as you pointed out, the Copyright Act does allow a human being or some something that can hold property rights. [00:18:30] Speaker 00: I'm sorry. [00:18:30] Speaker 05: I thought you were your argument about property rights. [00:18:34] Speaker 05: Do you have to be able to I had read your brief. [00:18:36] Speaker 05: And if I'm wrong, correct me to point to as [00:18:41] Speaker 05: Some of the textual indicia that you pointed to is say that this statute envisions only humans holding copyrights. [00:18:49] Speaker 05: And part of that was humans can have property rights and machines cannot. [00:18:56] Speaker 05: Is that did I misread your brief? [00:18:59] Speaker 00: No, and I want to be clear here. [00:19:00] Speaker 00: I think what we're talking about is authorship, which is distinct from ownership, of course. [00:19:05] Speaker 00: But in terms of the structure of the Copyright Act, I think you're right. [00:19:08] Speaker 00: What we're talking about here are all these things that indicate humanity as opposed to an inanimate object or a machine. [00:19:14] Speaker 04: So, for example, children can hold property rights. [00:19:17] Speaker 00: Children can have under the Copyright Act, for example, they can have the rights to terminate a license passed on to them. [00:19:24] Speaker 00: So that's something that's reflected in the Copyright Act. [00:19:26] Speaker 00: But when it refers to an author's widow, an author's widower, children, grandchildren, that's all indicating humanity. [00:19:34] Speaker 05: In the Scribner case, the Belford v. Scribner, you're pretty clear you can hold a copyright even if you don't have personal property rights. [00:19:44] Speaker 05: So that was the holding. [00:19:47] Speaker 00: And I don't think that's particularly informative of the 1976 Act and the dispute here. [00:19:52] Speaker 00: The narrow question is whether an AI can be the sole author of a copyright. [00:19:58] Speaker 00: And the answer, we think, based on the 76 Acts text and structure, the decisions from the Ninth Circuit and the Seventh Circuit discussing human authorship, [00:20:08] Speaker 00: And the longstanding interpretation that the Supreme Court has had since serenity on down, including the Copyright Office's views from before the 1976 Act and consistent after the 1976 Act all show that copyright authorship is a human endeavor. [00:20:26] Speaker 00: And again, that's why copyright duration in the standard case is going to be measured by the life and death of the author, and a machine doesn't have a life or death. [00:20:37] Speaker 02: So you're using the kind of, you know, presence of property rights as a kind of a way, an indicator, Congress included, intended for [00:20:54] Speaker 02: human authorship only as opposed to saying that in order to be an author, you have to have been able to exercise property rights. [00:21:05] Speaker 00: Right. [00:21:05] Speaker 00: It's one of dozens of indications that we think are present in the act. [00:21:09] Speaker 02: Do you know whether enslaved people were ever granted copyrights? [00:21:16] Speaker 00: I don't know the answer to that question. [00:21:18] Speaker 00: But what I can tell you is in the 1976 act that Congress enacted, again, that was about 10 years after the Copyright Office made clear its views that there's a distinction for authorship purposes between just the mechanical reproduction of something that a machine does versus human interaction and human ingenuity. [00:21:36] Speaker 00: 10 years later, Congress steps in and enacts the Copyright Act. [00:21:41] Speaker 00: Four years later, it adds computer programs to the definition of literacy. [00:21:45] Speaker 00: works in section 101 again not disturbing the long-standing definition of authorship in 1998 it extends copyright duration from 50 years to 20 years from the author's death so again all these indications that authorship is always required for the 1976 act the very least that there has to be some human input in creating the work now what about the argument made by appellant and [00:22:10] Speaker 02: and also made forcefully by Amiki that your proffered interpretation of the Act will, you know, stifle innovation and create the wrong sorts of incentives. [00:22:28] Speaker 00: I think a couple responses to that one, as we pointed out in our brief, I think the amici might be laboring under a misimpression that the Copyright Office will never grant registrations in the context of works that involve AI generated content. [00:22:39] Speaker 00: But in terms of the policy arguments about what are the right incentives, what's the right balance to strike, again, as the Supreme Court recognized in [00:22:47] Speaker 00: Georgia case pointed it out again in the Sony case. [00:22:51] Speaker 00: Those are really questions for Congress to answer. [00:22:53] Speaker 00: So the copyright clause in the Constitution is a legislative grant of power. [00:22:57] Speaker 00: And within those limits, Congress gets to set its policy choices in terms of where the proper incentives lie. [00:23:04] Speaker 00: And I think for purposes of this case, when that question's not [00:23:07] Speaker 00: presented squarely here when we have a hotly contested issues in terms of AI and what the proper incentives should be for intellectual property. [00:23:16] Speaker 00: Those are really questions for Congress, not for this court on APA review of an agency decision based on this limited record. [00:23:23] Speaker 06: Well, I wondered whether or not the president didn't suggest that maybe the question isn't for a lower appellate court, but maybe the Supreme Court. [00:23:33] Speaker 06: would be more responsive to the notion of what the original purpose of copyright was and some of the arguments appellant makes here. [00:23:43] Speaker 06: But as my colleagues' questions have re-emphasized and is in your brief, the question before this court is very narrow because of the way it was formed. [00:23:55] Speaker 06: So a lot of these intriguing questions really are presented for decision here. [00:24:03] Speaker 06: And I thought that's the way the district court treated the case as well. [00:24:09] Speaker 00: That's exactly right. [00:24:10] Speaker 00: And I think there's wisdom in the district court's approach here when it recognized, based on plaintiff's own framing of this case, the case presents a very narrow question. [00:24:18] Speaker 00: And that's all the district court passed on. [00:24:20] Speaker 00: And we think that's the only thing that's up for review in this APA posture before this court. [00:24:24] Speaker 06: So what's your response to Appellant's argument that the district court [00:24:32] Speaker 06: I can't remember the verb he used, but basically ignored the representations made in the petitions for reconsideration. [00:24:42] Speaker 00: We respectfully but forcefully disagree with that statement. [00:24:45] Speaker 00: If I could just point out a couple of spots in the record, starting just with the complaint. [00:24:51] Speaker 00: This is JA 25 paragraph 18 of the corrected complaint. [00:24:56] Speaker 00: Plaintiff alleged, quote, plaintiff separately noted in the application that the work was autonomously created by a computer. [00:25:03] Speaker 00: Paragraph 22, this is JA25, quote, the USCO, that is the Copyright Office, accepted that the work was autonomously created by artificial intelligence without any creative contribution from a human actor. [00:25:18] Speaker 00: So I don't see how the district court could have erred. [00:25:20] Speaker 00: when it sees these representations made in the complaint. [00:25:23] Speaker 00: And you add to that J92 paragraph 9 of the motion for summary judgment, when again, plaintiff himself recognized that the only question that the Copyright Office passed on was the one presented in the application. [00:25:36] Speaker 00: And quote, there was no issue of human author involvement. [00:25:40] Speaker 00: He stated that as an undisputed fact. [00:25:41] Speaker 00: But I don't think it's error for the district court to have taken plaintiff at his word, just as it was an error for the agency to take the application on its face. [00:25:51] Speaker 05: Thank you. [00:25:53] Speaker 05: Does the copyright office, when it receives an application for something that is created by AI, but in which the human has a role in [00:26:11] Speaker 05: contours of what it once made, maybe the sources to which it points the machine, and the type of images and colors and judgments about what it should produce. [00:26:25] Speaker 05: Does it look at those the same way? [00:26:28] Speaker 05: So there are dials in the camera situation, or does it have a [00:26:35] Speaker 05: Making seem to suggest a higher stricter standard of AIs involved. [00:26:38] Speaker 00: So I think the most recent views are in that 2023 guidance we cited and permalinked in our brief. [00:26:43] Speaker 00: But in general, yes, the answer is it's a careful inquiry based on the record that's before it. [00:26:49] Speaker 00: So things [00:26:50] Speaker 05: I'm sure it's always a careful inquiry. [00:26:53] Speaker 00: I think some of the questions that the Copyright Office would ask, if it had been presented in this case with an application like the ones that you posited, it would ask things like, well, if Dr. Thaler trained the machine, how did he train his AI? [00:27:05] Speaker 00: What prompts did he use in creating this work? [00:27:08] Speaker 00: What were the initial results? [00:27:10] Speaker 00: What did Dr. Thaler do in response to getting those results? [00:27:12] Speaker 00: How long did it take? [00:27:14] Speaker 00: Is this image just a carbon copy of something the machine had already been trained on such that it wouldn't be original at all? [00:27:22] Speaker 00: Those are the types of nuanced and careful questions and analysis the Copyright Office would engage in if it's getting that type of application involving AI-generated works. [00:27:31] Speaker 00: But of course, that didn't happen here because that wasn't the theory or even the representations made in the application here. [00:27:37] Speaker 00: Didn't have a chance to make those types of determinations because Dr. Thaler presented a very different case. [00:27:43] Speaker 05: Tell her, AI, give me an image of a dog that's rainbow colored and a mix of three breeds. [00:27:51] Speaker 05: I'm trying to come up with something that I'm assuming is going to be original, which is hard in this world of the internet. [00:27:55] Speaker 05: But along those lines, give me something like that. [00:27:59] Speaker 05: Would that be sufficient to have the role of human creativity? [00:28:03] Speaker 05: I'm just trying to understand how it works in this context. [00:28:06] Speaker 05: I understand the factors you just said, but it sounds to me like it may be more exacting than it would be in a barrow guile. [00:28:13] Speaker 00: Candidly, I think the office does take a careful look. [00:28:16] Speaker 00: I just don't know. [00:28:17] Speaker 00: It's hard to say in the abstract what the office would do based on these circumstances because it will just depend on the particulars of the work and what the human did. [00:28:27] Speaker 00: But I think in terms of this test case, the whole point is you don't have to draw those lines. [00:28:33] Speaker 00: This is just an up-down vote on whether you have to have some human involvement in creating the work. [00:28:37] Speaker 00: We think the answer is yes for all the reasons we pointed out as the district court explained. [00:28:40] Speaker 05: The House and Senate each have task force or groups looking into AI. [00:28:45] Speaker 05: This is extra record, so if you don't know, that's fine. [00:28:49] Speaker 05: I just didn't know, is the Copyright Office, are they aware of communications with or working with Congress on legislation on this matter? [00:28:57] Speaker 00: I want to be careful and answer your question accurately. [00:29:00] Speaker 00: I'm not aware of particular correspondence that has happened [00:29:04] Speaker 00: Very recently, what I can tell you is that the office had a notice of inquiry to the public. [00:29:09] Speaker 00: I think that issued in August of 23, the common period was extended, the office received 10,000 responses, and it is working on a report that's going to assimilate and respond and provide views, including recommendations for Congress on what to do next based on a whole host of topics. [00:29:24] Speaker 00: I think the most recent volume one of the report dealt with digital replicas, so for example, the fake Drake song, [00:29:32] Speaker 00: that came out, I think, over the summer. [00:29:34] Speaker 05: There has been bills and things on those, at least already. [00:29:38] Speaker 00: Yeah, and I'm not aware of any particular correspondence between the two. [00:29:42] Speaker 00: That's not in this record. [00:29:44] Speaker ?: Okay. [00:29:44] Speaker 05: Are there any other questions? [00:29:46] Speaker 05: Ms. [00:29:46] Speaker 05: Rogers, do you have any more questions? [00:29:48] Speaker 05: No, thank you. [00:29:50] Speaker 00: We would ask the court to affirm. [00:29:51] Speaker 00: Thank you. [00:29:55] Speaker 05: Okay, sorry, Mr. Thaler. [00:29:58] Speaker 05: Mr. Abbott, we'll give you two minutes. [00:30:00] Speaker 03: Thank you, your honor. [00:30:02] Speaker 03: And I think that this case has exactly the factual record for the important issues this case is raising and that they have been misconstrued by the Copyright Office in the district court. [00:30:10] Speaker 03: It is not. [00:30:11] Speaker 05: Okay, so just stop right there. [00:30:13] Speaker 05: So when the district court held that you attempted to transform the issue by asserting new facts about what you were calling indirect control of the machine, [00:30:23] Speaker 05: And then that hadn't been raised before the court or the or the or the agency. [00:30:27] Speaker 05: Are you arguing that that was error by the district court? [00:30:31] Speaker 03: Yes, your honor. [00:30:32] Speaker 05: I mean, for example, in appendix blue brief, you raise a challenge to the waiver decision by the district court. [00:30:41] Speaker 03: Yes, Your Honor. [00:30:43] Speaker 03: I mean, we do make the case that Dr. Thaler also directly qualifies. [00:30:46] Speaker 05: No, no, no. [00:30:47] Speaker 05: So the district court, you made this argument to the district court. [00:30:50] Speaker 03: Yes, Your Honor. [00:30:51] Speaker 05: And the district court said you waived that. [00:30:52] Speaker 05: You didn't raise it before the agency. [00:30:54] Speaker 03: Well, but that was incorrect. [00:30:55] Speaker 05: OK. [00:30:56] Speaker 05: And you get to come here and you get to argue to us that district courts made errors. [00:31:00] Speaker 05: But you have to raise them in your brief. [00:31:02] Speaker 05: So where in your blue brief do you dispute the district court's waiver decision on that issue? [00:31:08] Speaker 03: Well, we didn't specifically use the word waiver, but in raising that argument. [00:31:12] Speaker 05: Okay, where do you conclude the district court's ruling? [00:31:14] Speaker 03: Oh, well, in all the sections about where Dr. Thaler directly qualifies as an author. [00:31:18] Speaker 05: But say, making an argument that someone qualifies as an author is not the same thing as saying we adequately preserved this argument before the agency and the district court erred in concluding otherwise. [00:31:28] Speaker 05: That's a very different argument. [00:31:29] Speaker 05: Just making the argument here is a legal argument to us. [00:31:33] Speaker 05: What I'm asking you for is where have you challenged that aspect of the district court's decision? [00:31:38] Speaker 03: Apologies, your honor. [00:31:39] Speaker 03: I think that is implied in our brief. [00:31:41] Speaker 05: So we don't have to imply it. [00:31:43] Speaker 05: You get to either raise the issue or you don't. [00:31:44] Speaker 03: But we didn't. [00:31:44] Speaker 05: I see your issues presented. [00:31:46] Speaker 05: I see it nowhere in your argument about the claim of indirect authorship. [00:31:50] Speaker 03: I think that's extensively in our brief, your honor. [00:31:53] Speaker 05: In the challenge to the district court's decision? [00:31:55] Speaker 03: Correct, your honor. [00:31:56] Speaker 05: Point me to the pages. [00:31:57] Speaker 03: I'd have to grab my laptop, your honor. [00:31:59] Speaker 03: Just the brief there. [00:32:00] Speaker 03: I can't remember the pages. [00:32:02] Speaker 05: Or if you want to do it after argument, send a letter and tell us where in your blue brief. [00:32:05] Speaker 03: I will. [00:32:06] Speaker 05: And challenge the district court's decision that you waived that argument. [00:32:11] Speaker 03: And these facts were presented in answer to your question, the Copyright Office, the request for reconsideration are a back and forth with the office. [00:32:19] Speaker 03: I mean, the one page form is very simple. [00:32:21] Speaker 05: I'm asking you where you challenged the district court's ruling that you waived this argument. [00:32:25] Speaker 03: And I will supplement with an answer to that, Your Honor. [00:32:27] Speaker 05: It has to be in your blue brief. [00:32:28] Speaker 03: It has to be in the brief. [00:32:29] Speaker 05: And it can't be implicit. [00:32:30] Speaker 05: It needs to be in words. [00:32:31] Speaker 03: And in the record, in the back and forth with the Copyright Office, for example, in Appendix 52, we say Dr. Thaler can also qualify. [00:32:38] Speaker 03: He is the user and the programmer of the AI. [00:32:40] Speaker 02: The problem that I have with all of this, and this is why I asked you the very first question that I did, is that, oh, that's well and good, but your complaint doesn't say, [00:32:53] Speaker 02: that the Copyright Office erred by denying our modified theory on reconsideration. [00:33:04] Speaker 02: Your complaint says that we assert that with no human involvement, we should be able to get a copyright, and the Copyright Office said no, and that's wrong, and that's arbitrary and capricious under the APA. [00:33:22] Speaker 02: That was your theory. [00:33:25] Speaker 03: Right. [00:33:25] Speaker 02: And that does remain. [00:33:26] Speaker 02: Why are you arguing to us about, you know, other things that were said on reconsideration that aren't in your complaint? [00:33:35] Speaker 03: Well, your honor, I mean, there were multiple theories on which we argued in the alternate. [00:33:39] Speaker 03: And the primary one was that even without a direct human contribution to the work, the work remains protectable. [00:33:47] Speaker 03: And [00:33:48] Speaker 03: The Copyright Office says, you know, that's for Congress as a matter of policy. [00:33:51] Speaker 03: Our view is that the Copyright Office is making policy here outside of the statute, because nowhere in the act does it say you have to have a human author or a traditional human author or any of that. [00:34:00] Speaker 03: And the Supreme Court in Blaseystein, among others, has cautioned if there isn't an explicit restriction in the act, then the work should get registration. [00:34:09] Speaker 06: You know, I wondered about that argument in terms of the traditional recognition by the Supreme Court that where Congress amends a statute, it's deemed to adopt the interpretations that are outstanding unless it makes clear that it's changing something. [00:34:34] Speaker 06: And here, we have legislative history where [00:34:39] Speaker 06: at least the House Committee says that the Copyright Office has made it clear that it's not changing anything. [00:34:48] Speaker 06: It's not extending anything. [00:34:50] Speaker 06: It's not withdrawing anything. [00:34:52] Speaker 06: It's simply a continuation. [00:34:54] Speaker 06: And we, the Congress, are going to make several changes, like the number of years, that type of thing. [00:35:00] Speaker 06: So in that circumstance, Congress is deemed [00:35:06] Speaker 06: to have known about the interpretations by the Copyright Office and didn't give any indication that it disagreed with them. [00:35:18] Speaker 06: So if that is the legal framework in which we're dealing, then aren't the questions that my colleagues are pursuing with you as to the clarity of your claim, your theory, and of your claims of error by the [00:35:35] Speaker 06: copyright office, as well as the district court, aren't they crucial for this court to be able to address the arguments you want decided? [00:35:50] Speaker 06: In other words, there's a whole process here. [00:35:53] Speaker 06: And you want to jump the process. [00:35:55] Speaker 06: And you may ultimately persuade. [00:35:59] Speaker 06: But we're a step away from it because of the way the case has been presented to us. [00:36:06] Speaker 06: We're two steps away in the sense of the courts deciding, much less the Congress deciding if it's necessary for it to act. [00:36:17] Speaker 06: Well, Your Honor, I think with regards to whether Congress should act, I think current... Council, what I'm trying to get at is it's critically important for you to alert the court as to what the errors are. [00:36:31] Speaker 06: Not that, well, we made these general arguments about Dr. Thaler should be the owner, should be the author, et cetera, as distinct from pointing out where you raise these points and they were overlooked either in error by the copyright office or error by the district court. [00:36:54] Speaker 06: I mean, that's what I think all these questions are going to. [00:36:58] Speaker 06: And my earlier question was trying to say that. [00:37:00] Speaker 06: I think there are a lot of intriguing arguments you make. [00:37:03] Speaker 06: But the question is, are they before us? [00:37:06] Speaker 06: Have they been preserved for us to address them? [00:37:09] Speaker 03: Right. [00:37:09] Speaker 03: And our view is they have, Your Honor. [00:37:11] Speaker 03: And with respect to the bucket of questions about nuance between what an AI does and what a human does, that's why I think the record is perfect for this court. [00:37:19] Speaker 03: Because we are not in that nuance. [00:37:22] Speaker 03: We agree with the Copyright Office. [00:37:23] Speaker 03: Our position is all that nuanced stuff [00:37:26] Speaker 03: is done by the AI, right? [00:37:28] Speaker 03: Dr. Thaler did not give a direct creative contribution to the machine. [00:37:33] Speaker 03: Under the Copyright Office's policy, even if they had fleshed that out, it would have been rejected. [00:37:38] Speaker 03: As to congressional silence, I believe, you know, we've cited a case, I can't recall it off the top of my head, that Congress's silence is just that silence. [00:37:46] Speaker 03: There's never been a case on which the Copyright Office has publicized denying an application for an AI-generated invention. [00:37:53] Speaker 03: So this is the first case. [00:37:55] Speaker 03: And even if buried in the compendium some time ago, this was a rule somewhere, I don't think we can deem Congress to have known and approved of that. [00:38:02] Speaker 03: When Congress did commission a body to look at this in the context of computer software and copyright, the commission said technology isn't advanced enough that we don't have this kind of direct minimal level of human input into this. [00:38:15] Speaker 03: And now we do. [00:38:16] Speaker 03: So I don't think Congress [00:38:18] Speaker 03: has explicitly weighed in on this, but I think that the Copyright Act itself is clear that it's designed to accommodate technological progress, that is designed to accommodate the benefits of new technologies, and that as the amicus brief discusses, every application the Copyright Office has gotten, they've disclaimed anything that generative AI has touched. [00:38:37] Speaker 03: So while our case is on the far end of the spectrum, that's what makes this an ideal case [00:38:41] Speaker 03: or a legal decision from this court about whether you need a direct, traditional human author to make a work. [00:38:48] Speaker 03: And if not, then the work is protectable and belongs to Dr. Thaler under one of our theories. [00:38:52] Speaker 05: What do we do with all Supreme Court? [00:38:55] Speaker 05: You talked about silence and stuff from Congress, but Supreme Court has said that sound policy as well as history supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. [00:39:09] Speaker 05: accommodating new technology is for Congress. [00:39:13] Speaker 05: Well, yes, regulations of these relationships and any ultimate resolution of the many sensitive and important problems in this field must be left to Congress. [00:39:21] Speaker 03: Well, and as you say, your honor, Congress is considering this matter and they may change the law, whatever this court decides, but current applicants have [00:39:31] Speaker 03: a right to an interpretation of the current Copyright Act, because this is a widespread phenomenon now. [00:39:36] Speaker 03: People are using AI to make images. [00:39:38] Speaker 03: And they should be protectable under the Copyright Act. [00:39:40] Speaker 03: There's no restriction against it. [00:39:43] Speaker 03: And if there's no restriction against it. [00:39:46] Speaker 05: Do you have any more questions? [00:39:48] Speaker 05: No, thank you. [00:39:51] Speaker 05: All right. [00:39:51] Speaker 05: Thank you very much. [00:39:52] Speaker 05: The case is submitted.