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Legal (and Moral) Issues in AI-Generated Content

Someone on a laptop using Chat GPT
By Michael DeRienzo, Esq. and Vaidehi Mehta, Esq. | Last updated on

You can't help but remember that iconic 1984 cinematic moment when Arnold Schwarzenegger rose from the ground amid sea of lightning and declared that he would "be back" to find and kill Sarah Connor in the classic movie, The Terminator.

You watched in amazement when in 2011 the IBM-designed computer named Watson won a round of Jeopardy by besting two of the most successful gameshow contestants of all time.

But by 2023, you went from delight to horror after Elon Musk and Steve Wozniak — two of the most prominent tech entrepreneurs of all time — declared in an open letter that human survival depended on the immediate stoppage of artificial intelligence,

Whether you work in the legal department of an accounting firm, are an engineer for a company that designs rocket launchers to Mars, or sell bubblegum on the street, artificial intelligence is a part of your life now. Artificial intelligence, or AI, is often defined as a machine with the capability to mimic or predict what a human being can or will do. Like it or not, it's looking like this technology is here to stay, and soon enough it'll become more difficult to determine who — or what — is real.

There is an old internet meme in which Abraham Lincoln fictitiously advises not to believe everything read on the internet. Sure, he may have died more than 120 years before dial-up was a thing, but that doesn't make the advice of this Internet Abe any less "honest."

What do you believe on the internet then? How do you know you can believe it? And where does the line get drawn over content creation?

Imagine you ask Chat GPT to "write a revenge story using an animal antagonist in the style of Edgar Allan Poe." The application creates "The Raven 2: Raven's Revenge," and it becomes an amazing success. Why shouldn't it be considered your own work? After all, you thought of the idea — so shouldn't you get the credit? Is it so different from a former president using ghostwriters to draft a manuscript of his "autobiography"? And how often has a law firm partner taken credit for the research and brief drafted by her mid-level associates?

If the "Raven 2" hypo sounds a bit far-fetched, what about using Adobe Photoshop? Say you, with all your well-intentioned but aggressively amateur photography skills, take a picture of the sunset that is just awful. But then you spend hours on the computer editing every aspect of it to make absolutely stunning, and your "photograph" wins an award. Would that be fair? After all, the work might be originally yours, but a computer program (with some AI tools) made it something award-worthy. Who really deserves that award, you or Shantanu Narayen, the CEO of Adobe? Without you, there would be no original picture; but without Narayen's product, the award would go to someone else, as it should — or should it?

What about this article? The author used spell-check, autocorrect, and a handful of other digital tools, not to mention a human editor who had to fix all of these typos. So who is the real author here?

Like any tool, AI has its advantages and disadvantages. In the right hands, it can save lives. In the wrong hands, it could be a dangerous weapon that has the power to destroy lives. But what happens when it starts using its own hands?

AI Wreaks Havoc on Intellectual Property

Questions about who owns what have plagued copyright holders and their attorneys for as long as there have been words to describe it. But when it comes to AI-generated content, or content created by an algorithm based on the suggestion (or not) of a human, the debate is only just getting started.

In fact, Congress itself is actively attempting to get ahead of the issue and recently commissioned a Congressional Research Service dossier to analyze this new issue of who owns AI-generated content and is it copyrightable?

According to Legislative Attorney Christopher T. Zirpoli, the question might come down to the human's involvement in the creation itself. "Assuming that a copyrightable work requires a human author," he says, "works created by humans using generative AI could arguably be entitled to copyright protection, depending on the nature of human involvement in the creative process."

Some would argue that if the issue is only about who owns what, then that's a small price to pay for all the good AI can do. Sure, AI has great potential on both personal and global issues, but it can also cause much more harm than a battle over intellectual property.

This past May, Senator Richard Blumenthal (D-Conn.) opened his subcommittee meeting by playing a speech written by ChatGPT and spoken by an AI-generated voice. The Senator seemed impressed, noting that this speech (composited together from various others previous speeches) sounded almost exactly like his own voice. But he also posed the question: what if the AI-generated voice chose to give a speech endorsing Ukraine's surrender to Russia? How quickly would there be catastrophic consequences? And who would be to blame?

Suffice it to say that there are no easy answers to the new questions posed by this brave new world. Like every significant breakthrough in human history, technology has advanced faster than anticipated. Where the technology and regulations go from here is not clear. But perhaps, with the right mindset, legal and regulatory experts can figure out a way to navigate the murky waters of artificial intelligence and hopefully avoid Judgment Day. For now, start making friends with every Sarah Connor you know, just in case.

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