By scrubbing the internet for information that it recombines into new texts and images, generative AI has launched a host of new questions about intellectual property law and liability. For instance, who’s responsible if an AI infringes upon your intellectual property? The company that made it? The company that used it? The AI itself? We discuss these questions and more in the latest episode of Real Cases with Professor Darryl C. Wilson, Stetson Law’s Associate Dean for Strategy & Operations.
Speaker 1 (00:01.164)
Right now, you know, we're in a sort of wild, wild west or Star Wars or Star Trek sort of world because there's no solid answers and there haven't been any successful lawsuits by any of these various groups. They a lot of class actions out there right now. And the question is whether or not they'll be successful. But if they're going to be successful, are they going to be successful against who? They can't be successful against
The AI itself, mean, AI, we don't have the rise of the machines in the child neighborhood. can point to a person. just have a program that's getting out there.
This is Real Cases, a legal podcast presented by the Stetson University College of Law. We'll sit down with Stetson Law faculty and students to examine today's critical cases and debates in environmental, international, elder, and business law, plus the role of social justice in these fields. Join us as we open the case file. Episode 23, AI and Intellectual Property Law. I'm Daniel O'Keefe, Master of English Literature from Indiana University.
Today we're joined by Stetson Law Professor and Associate Dean for Strategy and Operations, Darryl C. Wilson. Professor Wilson has co-authored two books on real property law and a casebook on sports law, and he's a regular columnist for the ABA Probate and Property Magazine. He's the faculty advisor for the Intellectual Property Law Society, Sports and Entertainment Law Society, the Black Law Students Association, and the Real Property, Probate, and Trust Law Society.
He's the director of the Institute for Caribbean Law and Policy, and he's also been twice certified as an NFL Players Association contract advisor.
Speaker 2 (01:56.682)
Last time you were on the podcast, you mentioned that the internet age was putting greater attention on intellectual property law than there had ever been before. And so in today's episode, I was hoping to drill down into that issue a little bit further, specifically with regards to AI. But first, could you explain a little bit about what the difference is for people who are unfamiliar with what is the difference between copyrights as opposed to patents, trademarks?
trade secrets. Could you lay that out a little bit first?
Sure. mean, I say this every year to my students to give them an easy grasp. that's that copyrights are for expressions, the way people express themselves. And people express themselves in a number of ways. It can be visual, it can be physical. Dance steps can be what we think of as art, which can...
cover a broad spectrum, whether we're talking about music or we're talking about fine art or things of that nature, any way that you can think of expressions, know, sculptures, illustrations, and what we'll end up talking about a little more in depth later, you know, any type of writings, which includes writing a program, a software program. So copyright is for expression. Trademark.
are for identification. They identify goods and services based on the market gives the consumer and public some indication of where the good or service came from and then a certain quality associated with that. You say hotel and somebody says Four Seasons and somebody else says Motel Six, they're not the same and you don't want.
Speaker 1 (03:57.708)
Motel 6 slapping up a four season sign off the highway to try and get people confused or diverted properly. So, you know, that's the same with any good or service that you sell. And there are lots of classifications. There's an international classification system for all types of products. And that helps as well so that you can have, you know, Delta Fossus and Delta Airlines and nobody be the worst for wear.
Hmm.
And then patents, patents are for inventions. So you have most often what's known as utility inventions, things that work a certain way, they're functional. So you can't have a functional item be a copyright or a trademark. So when somebody has something that's utilitarian in nature, something to serve the benefits of
our society, through the inventive steps that have been taken, those people are entitled to a patent. So copyrights, expressions, trademarks, mean, trademarks, identification, and patents, inventions. Trademark is an area that usually, when you look into it, they usually attach the terminology trademarks and unfair competition.
There's areas that are related to trademarks covered under unfair competition law, like trade dress and trade secrets. And so those areas, they are somewhat related to identification of goods and services still, but say like a trade secret as a way of maybe trying to protect some additional information.
Speaker 1 (05:52.8)
are related to that being in services. So the trademark could be Coca-Cola or Kentucky Fried Chicken. And the trade secret could be the recipe formula for making up Coca-Cola or the recipe behind the Kentucky Fried Chicken. So those are the ways that the general public can identify. They buy stuff.
with emblems on it. see my Stetson here. They know that it's associated with a certain source and they think Stetson University, know, certain place, certain quality, high quality, well that type of thing.
Now, it occurs to me just thinking about this that, the process of, how exactly does the process of registering a trade secret, how does that work? Because it seems like there must be a interplay between secrecy, right? And at the same time, a certain amount of publicness in that you are getting some sort of protection for it, right? Could you explain a little bit about that?
All right, sure, sure. So to your first question, I'm going to use you for practice since my classes start next week. That's a bad question.
Okay.
Speaker 1 (07:26.018)
because there is no registration for trade sequence.
well there you go, okay.
and the operative word and the emphasis both in the law and practice is secret. So in order to have a valuable trade secret, the first element is to prove that it is a secret. And now, you know, that might sound a little bit elementary, but if you're in a major corporation, they have protocol for certain information that can be related.
to products that can be the products themselves. Different people have access for that information. So here's a set of operating procedures related to certain things that are meant to maintain a secrecy so that if they think that somebody has taken something of theirs that is a trade secret, then they can get over that initial
element of showing that they did take steps to keep the thing secret. So all of these different areas of intellectual property have very different costs and timelines associated with protecting them, know, conflict. When I started many decades ago, it cost like
Speaker 1 (09:01.006)
well, maybe six or $7 to register a copyright. And so I always tell people it's going up, know, quadrupled in price. And now I think it costs $50 to register a copyright, where it costs, you know, if you're going to try and register a patent, any standards type of utility patent activity, you're looking at telling somebody that they'll have to spend.
in the neighborhood of $20,000 and it'll take, you know, a couple of years before just through the process. Oh, wow. Right. It takes maybe six months to get through the process. And then trademarked is in between.
I mean, how would one company go after another company alleging that they had stolen a trade secret?
Well, I'll tell you one that's interesting for lawyers and I use this example because we do have certain cases that arise from time to time and some books that I've used have had them in there. And so you have lawyers working for firms and a certain group of lawyer works on certain title cases. And then that lawyer or lawyers group decides to go to another firm or start their own firm.
and take the clients with them. Well, you know, this whole idea of taking clients with you and taking those client files, the law firms will say, well, you can't do that. These are trade secrets. And it happens with other companies if you're working in-house and you don't work for a firm and you work for a firm on, you know, a certain type of technology on a car and then
Speaker 1 (10:50.304)
all of a sudden you're working for a competitive car company and suddenly they develop something very similar than the allegation as well. This person came over and brought with him our trade secrets. So that's usually it. It's a competitor seeing somebody else developing something and marketing something that's the same or similar to what they had at their
institution and being able to track that certain individuals have had access to that information at their prior company.
It's interesting because it seems like unlike with copyrights or with trademarks, since there's no registration process in advance, the process of proving ownership seems like it begins with the complaint, I guess, right? If that makes sense, as opposed to saying, all right, it's already been established that this is something I own, this person took it.
Right, yeah I mean yes in the sense I don't want to say it begins with a complaint. Let me step back from that and say that any controversy over it is going to be heavily based on the facts that are played in the complaint. It ends with the good or the service itself and so I
come out with a self-encompassed burger making machine and people are like, that's great. We should come up with something similar to that. And so if you're at a rival company, the first thing you do is say, check that thing out. You check it out, you wanna see
Speaker 1 (12:56.344)
You know, what do I call it? That's my trademark. You know, what type of writings I have associated with it, the artwork for marketing, all of that stuff is my copyright. And then you want to see, it a patented machine? Did I patent all of those? And you can't find any patents on it. And then you might decide to buy it and see how it's made. If I had a patent on it,
You couldn't break it apart, even if you broke it apart and found out how it's made and then decided to make your own. I can still claim patent infringement. But if you break it apart and I only have a trade secret on there, then I can't claim anything because that breaking of a part and putting it back together and finding out how it's constituted, this wasn't known as reverse engineering. And reverse engineering is allowed.
and the trade secret area. I see. I said, today you come to me with this murder making machine and I say you wanted me to protect it. I say, so you want to get some patents on it? You say, yeah. I say, okay, well, it's going to cost you about, you know, 20, 25,000. We should be able to get this through the whole process within the next couple of years. Or I say,
Does anybody know about this? Do you manufacture it yourself or just in your, in your garage or with your small company? You know, we just don't have to tell anybody about how this is done. we'll just keep it our own secret. Doesn't cost you anything except then if it gets real popular, you start saying, well, I got to take more steps to keep this secret. And I have to look at how I put this thing together.
to protect myself in a way that is not easily reversed engineered. That might be some real cost or opportunity post.
Speaker 2 (15:01.71)
I suppose that's why you see patent pending so often, since it's such a lengthy process.
Yes, yes, it is a lengthy process and we say you see patent pending because you want people to know that you want to give them the idea that you've already started the process and because patents can be secured in steps over time, these people might have certain parts worked out and have to scrap another part, but they want to preserve their time.
to beat any competitors who might be having the same thought or working in that same subject matter area, they'll do, you know, they have different stages and we can have a continuation and part, that you can have what we call, you know, junior sort of filings prior to the ultimate filing. But the thing with patents that is so different is that you can't get a patent unless you
fully disclose what it is you're inventing in a manner that is clear to those others operating in that what we call the prior art in the same area. We have to fully disclose. There's something called an enabling requirement under the Patent Act. So, you know, that's a choice individuals make. Do they want to keep things secret?
forever or do they want to disclose and get this the broadest type of protection available for basically a 20 year period. That's what it says. The time period that's given for that. So, you know, I don't know. I always ask my students, do you really believe nobody's been able to come up with the recipe for Kentucky Fried Chicken or
Speaker 1 (17:03.662)
the formula for making Coca-Cola, you know, in this hundred plus years. And that's kind of hard to believe, but I think the marketing side has been so strong that if I did do it and told you, it tastes exactly the same as Coke. You know, Coke's not going to come running out and say, hey, we got to sell Wilson Cola because what our formula is, they're just
Yeah, let it go. Because they know Wilson Cola is never going to make any inroads on Coca Cola. No matter how much I squawk about breaking their code and finding out what the real secret is.
Mm-hmm.
Speaker 2 (17:52.494)
You know, one issue that's been in the news lately that I thought would be interesting to discuss is Mickey Mouse. I know that Disney is famous for being very litigious about all of its properties and Mickey Mouse in particular. And it is only, I believe, the start of this year that finally
Mickey Mouse for the first time has actually become public domain or at least the version of Mickey Mouse that appeared in Steamboat Willie, the very first ever cartoon that featured him. So I'm interested to ask you a little bit about that because I realize this is something that people have been talking about, but there's also limits on the extent to which Mickey Mouse is now public domain, how you could use that as...
a creator apart from Disney. So I'm curious to hear you talk a little bit about that.
Well, mean, all copyright, all intellectual property has the time limitations attached to it. It is possible that you can have an identification trademark last as long as people are willing to pay the fees and keep renewing it. So that one is said to possibly
be able to last in perpetuity. But I mentioned patents, the basic patent, the utility patent, and only lasts 20 years. And the standard time for copyright has been life of the author plus 50 years. And that is something that has been the standard for probably more than one. Well, in the US,
Speaker 1 (19:47.532)
since the adoption of our current copyright act, the Federal Copyright Act, which is called the Copyright Act of 1976. So we had with that act, the life of the author plus 50 years. And then later on when in the late 80s, we changed it with our adoption of the Berne Convention.
provisions and we got more in tune with the international sort of standard. Some will say we set the standard and they call this, call the extension, what's called the Copyright Extension Act. It's really the Sonny Bono Copyright Extension Act, but people derisively called it the Mickey Mouse Act because they felt like Mickey Mouse was so afraid that
their characters would be released that they wanted to stretch out the protection another 20 years. But it's all tied into the subject matter that's copyrighted at the time. So yeah, they could bootstrap the characters that were about to expire at the 50 year period. And let me say,
I've been using like with the offer plus 50 years, but there's also, it used to be 75 years from the date of publication or a hundred years.
Speaker 1 (21:33.294)
75 or 100 years from publication or creation, whichever one was shorter. And what we did was just add 20 years on everything. So it was like 95 years or 120 years from publication or creation. So the characters weren't tied into the actual artist because they were works for hire people who were
working for Disney who created these characters and then Disney owned their characters as a company and then they released them at a certain time. So we go back to that time period. So all it did was, you know, 20 years ago, we were going to have this time period when Mickey Steamboat Willie was going to be part of the public domain. And we waited 20 more years now Steamboat Willie and a host of other characters.
are part of the public domain. And that means that people can use those characters freely. They can use them to create as a basis for other creative expressions that they can now get a copyright on. And they don't have to worry about Disney claiming that you're infringing by improperly using their copyrighted characters. But each iteration of
Wow.
every cartoon character is a new iteration that's subject to a new copyright start date. So, you know, last year was big Winnie the Pooh thing. And yeah, the original Winnie the Pooh, which was copyrighted, that time period expired for that one. So you just really look at these characters and see when copyright
Speaker 1 (23:33.068)
registration was issued for those particular characters and tie it into that. yeah, anything in the public domain means anybody can use it in any kind of way they want to.
I know, I'm glad you brought up the Winnie the Pooh thing because I know some filmmaker pounced on Winnie the Pooh becoming public domain and made a Winnie the Pooh horror movie. And I can personally attest to the fact that that was a terrible, terrible film.
Well, yes, I saw the trailers. I didn't feel like it was worth my my time. Maybe I'll catch it on cable.
You made a good decision watching the trailer first. just put it on.
Yeah, students every year, they're on a watch for characters that they feel a particular affinity for. And they're like, okay, it's open to the public. Yes, it is. But, you know, I don't know that you could bring about a revival of a steamboat, you might steamboat Willie dancing with you on TikTok or something. Try to make a video or put on your YouTube channel.
Speaker 1 (24:45.538)
You know, that type of thing. This is reek. That's what public domain means, this reek for anybody to use.
But now, so, and maybe this is getting really in the weeds here, but, so if Disney were to go after someone who used Mickey Mouse, claiming that, well, this is too different from Steamboat Willie, or at least from the version of Mickey Mouse that appears in Steamboat Willie, I mean, is there, are there...
widely accepted guidelines for how something like an animated character is differentiated from another. Like I was reading a little bit about how the version of Mickey Mouse in Steamboat Willie has solid black eyes, right? And doesn't have gloves and a handful of things that make him look distinct from the way Mickey Mouse does in 2024. And I guess I'm curious about like,
how companies get into the weeds about establishing what are the copyrightable elements of a character like this.
Yeah, well, that is something that you deal with with copyright in general, because as I said, it covers expressions, and there are all sorts of ways to express yourself. Some things are protectable, and some things aren't. And certainly, there are aspects that are necessary, you know, for the general public to hold on to. So
Speaker 1 (26:22.626)
What we talk about then is the breadth of the scope of copyright protection that a particular item has. If I wanted to write an IP book today, I would talk about copyrights and trademarks and patents and trade secrets and all sorts of other types of elements. And I would talk about it in the same way that all the other IP books on my shelf have. And nobody could stop me from using that or using English words or anything else. And I would organize it.
in a fashion that's comparable to how others organize. So, you know, what do all of these books have a copyright on? It was the same thing with the character, you know, because he has Steamboat Willie and then he bought the Mickey Mouse, couldn't stop, he couldn't stop Mighty Mouse from coming about or Speedy Gonzales or, you know, Tom, no, it's Jerry, Jerry the Monster, Tom and Jerry.
But there's lots of famous mice, right? So we didn't have the copyright to all mice. Just because Steamboat Willie was a popular mouse. So that is what, as I've told the students, makes this area fun. We need your creativity to understand what's
how to make a claim for your client, you know, and how to question your client and then also caution them about really what is protectable and what isn't protected. As he said, dark eyes on the cartoon character. Well, you can't claim that that is solely protectable by yourself, you know, a mouse is gonna have a...
probably big ears. I mean, that's the thing that really identifies the mouse. know, all the mice I mentioned have big ears. They don't all have the same squiggly tail or skinny legs like a, like a steamboat willy, but you know, what is it that we want to say is covered by the copyright and what is it? What is the scope of the copyright on the character? And then when you say, how do you get into this and
Speaker 1 (28:48.96)
And what's in the weeds? Well, now we are back to what something you said earlier, which is that's in the complaint. So am I going to take this case? And if so, you know, my research shows me that the scope of the copyright for this character is X, Y, and Z. your offending character as A, and C, and they are similar.
When we claim a forensic, there's a point where you have to show that the accused subject matter is either strikingly similar or substantially similar to your own protected expression. And that is a matter of different ways, know, surveys and expert testimony.
things of that nature.
Yeah.
Well, so the way you were phrasing part of your answer just now made me start to turn my thoughts toward AI, right? Because you were saying if you were to discuss IP in a new book or something that you were writing, you would do so in terms that would be strikingly similar to the way other people have discussed it. And that raises the issue that I feel like comes up often now with
Speaker 2 (30:21.578)
generative AI, right? Where people are concerned that we have these new forms of artificial intelligence that can crank out either images or that can crank out text and do so extremely quickly. And that have been trained using vast, vast databases of information that has been harvested from the internet to a large extent.
and it seems like one of the, mean, the main, it seems to me that the main way of talking about the issue of AI and IP has to do with artists who have complained that their art is, that their copyrighted art is being used in order to train AI. So I'm wondering if you could, if you could talk a little bit about that. What has
what is the current state of those sorts of complaints. I know there was a particular case that was brought by a few artists a couple of years ago. So I wanna open things up to talking about that.
All right, well, you know, I alluded to it a little bit earlier. And when I said, you know, what is copyrightable subject matter? And also I said it covers expressions and the software program is an expression. It's a written, you know, set of instructions for computer hardware to follow. And then patents are inventions. So,
We know again.
Speaker 1 (32:08.27)
the operation of a patent in a computer and following instructions that is possibly a patentable subject matter. And in fact, in the 90s, there was an acquiescence by both the US Patent and Trademark Office, the patent office particularly,
and copyright office to say that, you know, computer programs are protectable and you can either protect them under patent law or under copyright law. So you mentioned some of the seats that have occurred more recently and those are in response to what is a leak in AI from what's been
and used since the seventies to what came about more recently, which is generative AI, a responsive AI to instructions. But, you know, I said all of this about the computer program, because I and a few others, that's where we start. I mean, it's a computer program. And there's two actually avenues of lawsuits that have been filed regarding AI.
One, I don't really understand why they do it. And I would look at the other scholars and they spin it into computer science areas, this, that, and the other. as lawyers and the legal scholars in this area too, that's the aspect of people who develop AI saying that they want AI to have its own copyright or
They want AI to have its own patent, but AI is not a person. mean, you know, we've stressed out corporate personhood in a way and said that corporations, it's legal persons that have certain rights, but AI is a computer program. So the copyright office and the patent office have said in this country and others, because you have these advocates who are going around saying,
Speaker 1 (34:34.774)
Well, AI invented this thing, so AI should be the patent holder, or AI developed this picture, so it should hold a copyright on this picture, or develop this book. It should have the copyright on it. And the offices, the vast majority of them around the world have all said, for something to have ownership,
it has to be a person. So on the flip side, you have people who said AI has developed these things and so it should be liable for infringement. again, AI is not a person, it's a computer program. So...
It can't pay damages, you know. So we have that stalemate right now. You don't have many concrete legal decisions, but where you do have them, you have one in patents, one in copyrights that says no patent or copyright for AI because it's not a person. You've had the Copyright Office.
say that we're willing to allow for a person who wants to copyright subject matter, a particular expression that they either instructed the AI to do and they want a separate one for output as opposed to the copyright that they're able to secure for the input, which is a software program. They say they're willing to accept that. It's a joint work.
But the artists who filed for liability on behalf of AI and the AI companies, so far they've been unsuccessful. We've had cases filed in the last couple of years, really since 2020. And none of them have found that AI is liable.
Speaker 1 (36:51.494)
One of the things that you mentioned is the way that AI is trained. How does the computer program operate to respond in the way that it does? And it's trained by taking information that's publicly available, you said, off the internet. So anybody can get anything off the internet. You know, once you are an intellectual property holder,
if you're going to have your information released to the internet and the platform that you're using or the parties that you are allowing to transmit your information, you usually have already been paid because you and them have a licensing agreement where you license your information to be used on the internet. And of course, we've seen lots of lawsuits in the past where
artists have come out against people before AI or separate from AI. You know, I mentioned TikTok earlier and YouTube where they see their goods and services advertised or use their music played and that type of thing. And they're saying, Hey, this person is violating my rights with YouTube or TikTok. You're violating my rights. But I will say this.
It seems like the attorneys have always stayed, at least those on the defense side have always stayed a slight step ahead. And so you have a number of lawsuits right now that have been pending. have the, the stability lawsuits Anderson versus stability AI, Getty versus ability AI. have a couple against
Neocortex and Prisma Labs and Tremblay versus OpenAI and all of these entities are going against OpenAI but OpenAI and their terms of use, their terms of service say we are providing you with this tool that you can use to tell this computer program to output things and if you like
Speaker 1 (39:15.074)
you know, feel free to join at whatever level you want and you can use it. But it also says in there, we don't have any proprietary effort interest and the output at all. That's all on you. So they're not claiming any responsibility or ownership in that. And a number of courts who have made, again, it's a very few, but they
And I have said that scraping of the public data and the piecemealing of it back together into some form that is responsive to the instruction is just fair use. The Copyright Act, especially for those who have tried to do copyright claims, the Copyright Act allows for what's known as fair use, primarily if
certain elements are made, one of those being the first factor where you look at the purpose and character of the use. And that purpose and character is transformative enough in a way that works with the other elements, where you look at the nature of the copyrighted work, how much was used and the effect on the marketplace. Then that equates to fair use. And so fair use here and fair use in other.
countries across the world has been a defense. And then the plaintiffs have tried this invasion of privacy or a violation of their right of privacy. And again, you know, the courts, if you have answered that I've said, there's no invasion of privacy by taking information, at least to the internet and letting a machine, a bot,
scrape it until you get trained on the AI. So right now, you know, we're in a sort of wild, wild west or whatever, know, Star Wars or Star Trek sort of world because there's no solid answers and there haven't been any, successful lawsuits by any of these
Speaker 1 (41:40.92)
Various groups have a lot of class actions out there right now. And the question is whether or not they'll be successful. But if they're gonna be successful, are they gonna be successful against who? They can't be successful against the AI itself. mean, AI, we don't have the rise of the machines and the child neighborhood. We can point to a person, we just have a program that's getting out stuff. Is it?
When it's gathering stuff, it confronting these rights? And is it, is what's spit out, is that an infringement of rights? And what's spit out is, it's gonna be a little bit harder to prove as an infringement of the right because it's so, it's, it's, it's like pixelized. You've got millions of nuggets of information, and then you just, I don't know.
and what we call what the general public mistakenly calls it thinks about it. But what it does is it plays the eyes of how much it's being used in response to questions all of a sudden time and then puts those in there and we interview a composite. So, you know, I know I'm sounding too long-winded to myself to not even
come up with something more definitive, but the definitive boundaries are very black and white right now, but they very small compared to all of the questions. And you get out there, the attorneys out there going out there, going in the kitchen sink to try every possible way to find an argument. Topping away infringement and invasion of privacy.
Topic right management software, a breach under the DMCA trademark and flinching like right on publicity. You know, you have these generically eyes that can take people's pictures and put them on different bodies and all people are saying, well, that's a, from actual exploitation of publicity body. But again, that has me up around people are
Speaker 1 (44:06.158)
trying state made them privacy laws. Nothing there. The electronic computer privacy, like nothing there. A basic common law theft. Nothing there. So, you know, courts have either not decided or decided against anything far within responsibility on behalf of the AI thought of itself.
Hmm.
Now, I guess one of the questions that would occur to me would be, well, seems like a lot of this, and correct me if you think otherwise, but it seems like a lot of this would hinge upon companies being able to demonstrate that the data that they used in order to train their AI was indeed all publicly available. Right.
Right. And they've been able to do that so far because it's, well, the main plaintiffs are not, you know, average, you know, you me and me didn't decide, did you see the stuff they took from us? I mean, we're not, I mean, we're certainly valuable people in our own right, but, you know, we're not entertainers and athletes and well-known artists.
Yeah.
Speaker 1 (45:30.542)
And they're the ones, know, authors who you can tell they give me a picture of that. Yeah. I have a kid playing soccer and it gives you this best rendition of that. And then somebody says, Hey, that looks a lot like a picture that I took some photography. She has, know, I'm paired and you can find these all around. You know, I think the.
the guys who were part of the Mario brothers, when asked, different people were saying, Bob me a Mario, Bob me a Mario. It's all different kinds of ways that it's come out from AI, but it was all reminiscent of the Mario and the game, but then we get to our ever present question, any area of idea being.
What's the scope of what's protected in one's life?
Well, and it seems to me also that in, like you said, if someone were to instruct one of these generative AI tools to draw Mario and it ends up drawing something that looks pretty similar, it seems like in a way, part of the reason why that would happen is because even if Mario is protected, there's so much stuff that's publicly available that already crowds around it that
that these generative AI tools are able to figure out, okay, this is what is typically meant by that. And they're able to approach it by degrees.
Speaker 1 (47:11.246)
Yeah, and I mean, especially with most of these, most of the cases have been privacy and copyright, know, patent is, it's on the outer, hand, you know, some, some guys try to be so topical and try to give you a, right? They are crafting and say, we have this new invention, our department created it.
our department is responsible for this, but all of the employees here say they've used AI for their parts. So none of us are really the actual inventor. AI is the one who put it together. So give us a pack, give AI a pack. And they're like, no, we get out of here. And then the AI, AI, it doesn't work on its own. There's no
I saw that,
Speaker 1 (48:09.344)
I'm going to the store and buy me an AI today and bring it in and AI do this, do that. Now on the other side, the people are saying exactly, it's a company using that. So the company should be responsible. Well, the company is saying, well, we tell you, you can use our AI if you like how it responds to your prompts. But we don't know, we don't know what it's going to come out with anymore than you know what it's going to come out with.
So that is why we are in a exciting area, a flexible area, or undetermined area right now. Because we don't have a hard answer. There are people who demise clicking and saying, my stability, AI. If people like what's coming out from the output stands, enough.
and you know, call our company for our AI to generate stuff for them and people who are artists and confidants are saying, well, that means they're gonna buy less from me that they can build something that they're satisfied with using his competence AI. So, and the company can get anything close to what I do unless they're ones using something that is protected. So, you know,
how long our outputs are going to be looked at.
I know in property, are they really the property and entity, is it enough for open AI to say, and they're charging use, was not all of this, we're not gonna make any claims to, don't come soaring us later on. Saying that we're infringing on even, and also saying that they're, and by the way,
Speaker 1 (50:09.186)
Whatever the output is, it's an example of us just using stop, that's on the end of that. I'll raise him more.
and we'll see where they nose.
Would you describe yourself as an optimist, pessimist when it comes to these new developments? How do you feel about them personally?
Well, I mean, I, I, I am, I always been, I'm a real specimen, if I call myself, and I am optimistic in the sense of the development of the world, the world itself, to me is a clear evidence of evolution of all of the areas of the law in response to
I just change its technological, geographical, demographical, and so forth. So I think in that sense, I'm optimistic that there'll be new developments that address these issues. However, I am.
Speaker 1 (51:25.58)
And I also realistically, my sense of a lot of that being driven by capital. So it's all a matter of how long it will take for right people to be able to figure out an ownership interest while a devil is valuable that holds the least amount of risk for liability. And then once
you know, people think a subtle long half and a little bit more. And I talked to them, I might take off on this all and there'll be lots of money made and so forth and so on. And before there's clear valuation on it, you know, we're seeing that in the Bitcoin and digital currency here now. And when I took off, right.
took off because there wasn't regulation. then bit people, not in a coin, nice way to word it, bit them, a lot of people in the butt caused a lot of losses and people, know, on trial now because of us. So I will say, if there's any pessimism, it's again, think one of the experience and a real reality and like the law's gonna give me heart.
It's how I was being used and what deals I think. And then the regulations are chilling and keep up.
Is there any way that you think that the law could not be behind on this? mean, like, you think that this is, do you think that the legislators have the ability to keep up with these things if they were doing things differently? Or do you think that the pace of technology is just so fast that it's inevitable that the law is going to be playing catch up with these developments?
Speaker 1 (53:39.596)
There are groups in various countries, all of the major G7 or G8 countries who are working on specific AI issues right now. I was reading a cell report and it said China was leading the way. So you have your G8 sort of westernized capitalistic countries and then you have being on your bricks which is
Speaker 1 (54:19.63)
in Ireland, Brazil, Russia, India, China, somebody else stopping there. They didn't even make it bricks as opposed to those brick countries. But we have those who are working. You have, it's a race around the world to see how to best address AI. And there's an IP component to it.
which is just an outgrowth IP, know, even though it's deals with regulation of creative works, those things are still movable objects. So it's personal property and you know, the value of property and the ownership that is right at the core of all of this. But I'll say that the governments do try to not find themselves too far behind.
I mean, in this country in 1974, there was a group called, which was the Commission on New Technological Uses of Copyrighted Works. And it was trying to deal with computer software back then, know, like movement ceiling.
CD disc and digital sorts of just the digital evolution. mean, back then there weren't personal computers. We didn't have personal computers for the general public consumption for almost two decades after that. there are efforts that are made to try and catch these things ahead of time. But I just think that technology
Chackalism and also fragilism. You are at least aiming to be used by more people and you got more people than that. And one thing about the brick countries, and you say the brick countries, you're talking about more than half of the people on earth. You know, the population on Brazil is fast approaching a billion by the day.
Speaker 1 (56:47.374)
India and China both with a billion and a half. I mean, there's only seven points on a billion people on earth. So you'll find maybe a governmentally regulated way of doing things, but also it's just gonna be a push by the people. You're gonna do it. And that's why you have people like our country.
And you'll come up again with lot of questions because of the elections in replying about people like China's building on the election with the opportunity. If you want to give China the benefit of the doubt, depends on your stance, from a pragmatic standpoint, trying to pass some legislation out on there to tell one and a half billion people
You know, more than five times we live with a marathon. And here's some regulations to follow, so you don't violate these people's talking. You know, much easier said than done. So we have governments trying. You have capitalists trying. then non-capitalists trying. But I don't know.
That's a good question, whether there's anything that they do to speed it up. So I know they interview all of the scholars, was looking at a reference saying what they called it, almost 500 pages.
Speaker 1 (58:34.656)
essays and discussions by scholars on the issue, but it's highly speculative because again, nobody knows exactly what's the best argument right now that can all settle on and don't know where the courts are going. I will say this too though that I tell people I do not understand the aside
people who are arguing for AI to get something. I mean, I might go back to when we started on the subject, AI is a computer program. What is the point? I think, you know, some of these inventors, if you want AI to hold a patent or we just want AI to have copyright, they just want to say, I was the one who got this thing. Because AI is an inanimate thing.
So it cannot exert its rights under the popular. Yeah, I can't sue another person or another AI for bringing me what it's developed. And then to be doing that. And on the other side, the people say, okay, AI is liable. And the company said, well, we just let you use this AI. We made a facility on your own and we didn't have anything to do with
It's output, it's output, so the rec piece out of your input. So we're not going to be liable for it, but sure, you can make an AI liable. AI is again, it's just an inanimate, it's software program. So from a policy perspective, why do we have intellectual property protection? So they're going to incentivize and to proliferate new creations to the general public. This argument's all over.
how much IP the AI has, either right to secure or pass, and thus is liable for. For me, it's inconsistent with the policy, but it's just dying light. As they accuse us sometimes, again, in ivory towel, we can fit anything that's talking about stuff.
Speaker 2 (01:00:54.54)
Well, yeah, I mean, I guess it gets at that issue that always comes up with AI, that there's something sort of fuzzy and indeterminate about the way in which it seems to be almost person-like, while at the same time, obviously, not being a person, right? And so it seems like the very legal issues that you're talking about have resulted in...
Right.
Speaker 2 (01:01:20.642)
people duplicating this question of whether or not this is an entity that can be sued or that can own something, right?
Yep, that's such a quorum right now. People are, as I said, they trotted out their continuum. see, again, talking about attorneys, heading their best and trying to be smarter. A lot of them lately are class action suits, just in case. There's a big hit, and we get, you know, big class action suits, it sets you up for life. the plaintiff's gonna, what are they gonna do?
the artists, I don't know, maybe, know, the entertainers, even still though, you know, because AI can make a song and we can tell it to make a song and sounds like this, know, with this range of voices, it make some harmony like that. It's again, gonna piece together a whole bunch of stuff.
and you're the backstreet boys and you're coming and saying well I want to see you or your AI and flinging me and and where you know it's only so much as music is all the same notes just arranged you want to go there for money so I don't know when
something's gonna happen, I guess, if it gets popular enough, but are we gonna go the way of, well, I guess Dick's gonna be sick. It's the closest thing right now, or also streaming, and also peer to peer. We look back at some of that, things that people got really famous with lobster and Napster and all of those. And then we started with
Speaker 1 (01:03:20.046)
none of those companies made money. were popular and technology changed so quickly. They went to screening and artists were complaining that, you know, we're not making any money off of the screening. Now we have screening awards and I still don't know, still we are a lot of them there and you're not making any money for the screening. So we have stuff really popular, the puzzle of technology.
It doesn't end up translating into anything more than just good stories in a few good places.
Well, Professor Wilson, thank you so much for being here. really appreciate you taking the time.
Anytime, anytime. Always interesting to talk about this type of stuff.
Yeah, absolutely. This has been Real Cases. Thank you for listening. Check back for more episodes about an array of legal topics presented by the Stetson University College of Law. Learn more at stetson.edu.