Copyright law has grown to be highly inclusive, yet there does come a point when an object or work is so lacking in human creativity that copyright will fail to apply.{{}}[[]]Creative production may occur intentionally — through the labor of an artist or author in their creative endeavor, or unintentionally — as when an appropriation artist finds an object and presents it in a new light. Copyright law is meant to apply to the first, yet unintentional creations are beyond the scope of copyright.[[]] Copyright will not attach to a work that is “devoid of even the slightest trace of creativity,”{{}}[[]]Feist Publications, Inc. v. Rural Tel. Service Co., Inc. 499 U.S. 340, 362 (1991).[[]] and only a “thin” copyright attaches to creative content that is derived or compiled from works otherwise in the public domain. Yet Feist Publications, Inc. v. Rural Tel. Service Co., Inc. set the bar so low that virtually everything falls within copyright. 499 U.S. 340 (1991).

Compilation law is implicated in several ways due to the layered manner in which computer software tends to be developed. With different iterations of the program, the intellectual property rights to the discrete contributions attach to the individual programmer.{{}}[[]]17 U.S.C.A. § 201 (c) “Contributions to Collective Works.–Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution.” Contributors to a collaborative computing project retain the rights to their discrete creative contributions unless the project is a “work for hire,” in which case the client or employer retains all proprietary property interests. 17 U.S.C.A. § 201 (c).[[]] In this way, software is comparable to compilations of discrete pieces of preexisting code. Compilation law is implicated because even if all the component parts are uncopyrightable – ideas,{{}}[[]]Ideas and functions were still unprotectable, but patent law was extended to certain aspects of software to incentivize production of novel methods of computing and monetize these developments. Allen Clark Zoracki, When Is an Algorithm Invented? The Need for A New Paradigm for Evaluating an Algorithm for Intellectual Property Protection, 15 Alb. L.J. Sci. & Tech. 579, 584 (2005).[[]] elements from the public domain, scenes a faire, or functional elements – that particular selection and arrangement of the ideas may still be copyrightable.

Compilations occupy a unique place within copyright law. Feist addressed the minimal standard of creativity in compilations in part because there is only “thin” protection attaches in the first place. The three criteria for a compilation to be copyrightable are: “(1) the collection and assembly of pre-existing material, facts or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination or arrangement of an ‘original’ work of authorship.” For example, the compiler of a database can only gain copyright protection for the creative organization of the data collected. Only creative aspects are protected from copying, facts are available as a part of the public domain. Compilations can claim copyright protection in the selection and arrangement, though not in the content contained in the compilation as a whole, so secondary compilers are free to use the underlying data as long as the selection, arrangement, or coordination is materially distinct.

A general premise of American law, is that ideas and facts are not copyrightable is to avoid the need for subsequent users to waste their time finding all the data independently. This may be contrasted with European Union law, which grants database developers ownership of the data collected in their compilations, and some older American case law. For example, in Alva Studios, Inc. v. Winneger the court stated the “to be entitled to copyright, the work must be original in the sense that the author has created it by his own skill, labor, and judgment without directly copying or evasively imitating the work of another.” This established that sufficient originality could be found in the “skill, labor, and judgment” test. The Feist decision set the American standard for creativity and over-turned prior case law which had considered some degree of effort was sufficient as a criterion for copyright protection.

Feist specifically rejected “sweat of the brow” protection, which would grant copyright basely solely on the labor invested. By doing so, Feist established that creativity was an essential component for copyright protection and also clarified that economic concerns of database developers were distinct from the policy concerns of the Framers when establishing copyright. Bridgeman further clarified that “creative spark” … is the sine qua non of originality” and so even if technical skill and effort were evident in the reproductions this effort did not rise to the level of protectable creative expenditure.{{}}[[]]Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 197 (S.D.N.Y. 1999).[[]] Not only must some creativity be present, but creative aspects, after having all non-copyrightable elements filtered out, must be compared to the original work to determine the amount of copying in proportion to the whole.

computational creativity, artificial intelligence, Word of the Week, AI, creativity, copyright, originality, machines in the law, mechanized content creation, artificial intelligence and the law

We are conscious and other life is not. Machines can never be truly conscious because they don’t possess bodies and souls. True or false?

To determine this, we have to take a hard look at what consciousness IS. And not just the romanticized way, either. Are all people you know conscious?

One could protest machines can never truly feel, or want, or have all of the elements that we feel make us conscious, self-aware individuals. In our brains, our hearts, and our flesh lie the building blocks of humanity, but together they combine to something more, and a computer will never have that. This is exactly the viewpoint espoused by the proponents of embodied cognition, who believe that who we are is greater than the sum of our parts. So, too bad for robots, they never willunderstand, because they can’t.

It would be nice to think that only the bad guys go down for “serious” crimes, so the rest of us can be kept safe. Then we can stay at home, watch the Disney channel, and rest safe from the threat of doom and gloom.

The Sonny Bono “Mickey Mouse” Term Extension Act lengthened copyright terms from author’s life +50 to author’s life +70, delaying the entrance of thousands if not millions of orphaned works from entering public domain so a few large rights-holders could keep their monopolies for twenty more years

Unfortunately for anyone who uses or shares online content – from teachers, students, sports fans, and participants in social media sites, to remixers, modders, graphic artists, and programmers – the threat of copyright infringement has been growing and growing, and you can infringe and fall afoul of these laws without even meaning to.

The Ninth Circuit held in MAI Sys. Corp. v. Peak Computer, Inc. that even a transitory copy in RAM is fixed enough to infringe a software manufacturer’s copyright – which holds potentially serious implications for digital technologies insofar as computers produce numerous transient copies when reading programs or if works are transmitted over the Internet.^[1]

Troublingly, the MAI court also stated that embodied software sufficed to infringe derivative work rights, and that a TOS violation provided the basis for infringement liability. In addition, de minimis doctrine, which allows minimal copying to pass without triggering copyright law, effectively disappeared with respect to digital sampling of sound recordings after Bridgeport Music, Inc. v. Dimension Film.

In the Digital Age, the production and distribution of creative content has become decentralized and democratized.^[7]

At the same time, the length of copyright protection and the severity of the punishment for infringement have expanded exponentially in an effort to prop up the content industry in its traditional form.

This expansion carries with it serious consequences for everyday citizens. While criminal copyright infringement used to be limited to willful infringers motivated by profit – intended to apply to commercial infringers – “willful” has become a low bar and even private, noncommercial uses can be enough to establish criminal liability.

The expansion of certain criminal penalties could make felons out or small noncommercial actors when they engage in common Internet activities such as embedding a video in a blog, creating a slide-show with copyrighted music in the background and posting it on YouTube, copying and sharing funny images or interesting articles, and other activities which sample, remix, or reference copyrighted content.

Is this the reason we created copyright laws? Or has Disney won, and we’re being lead down a rabbit hole of longer terms and harsher penalties, until we just give in and go back to consuming the content they give us, rather than mixing it up ourselves?

Elements of Copyright Infringement

A plaintiff who wishes to establish a claim for copyright infringement must show “(1) ownership of a valid copyright, and (2) copyright of constituent elements of the work that are original.”^[2] Liability can attach to a party through either direct infringement, where lack of intent to infringe may not be a defense, or a party may indirectly infringe and the courts may find secondary liability.

To establish liability, the court must first find the basic elements of copyright infringement: ownership of a valid copyright, and the violation of one or more of the copyright holder’s exclusive rights.^[3] Indirect infringers must possess some knowledge, or be “willfully ignorant,” of the infringement for liability to attach.

Several legal defenses to allegations of contributory or vicarious infringement. Firstly, Sony Corp. of Am. v. Universal City Studios, Inc. established a safe harbor that protected technological development if a platform was capable of substantial non-infringing uses even if the technology potentially enabled a work to be copied in its entirety. Secondly, the Digital Millennium Copyright Act (“DMCA”) established a safe harbor for service providers that merely cached, linked to, hosted or transmitted infringing content, so long as they did not know the content was infringing.^[4]

Content that is hosted or linked to is subject to a good-faith removal upon receiving a takedown notice. Fair use must be evaluated before a good-faith takedown.^[5] The platform would not need to “police” their users’ content for copyright violations, it is sufficient that the content is removed after actual knowledge of specific infractions, not “red flags” that infringing activities may be occurring on the site.^[6] While red flags are not enough to establish liability for infringement, the defendant show that “not aware of facts or circumstances from which infringing activity [wa]s apparent.” 17 U.S.C. § 512(d)(1)(B) and that, once they become aware of the infringing activity, they “act[ed] expeditiously to remove, or disable access to, the [infringing] material.”

A patent is a type of intellectual property which grants an applicant the the exclusive right to use, market, license, or otherwise control what is done with their invention. This is not a standard property right – the patent grants a temporary monopoly over the intellectual property and the right to exclude others.

Patents are granted for a term of 20 years from the date of first filing, with at least 17 years guaranteed from final approval. Patents can be granted for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” [35 U.S.C.A. § 101 ].   Patents are disallowed for subject matter in the categories of “laws of nature, natural phenomena, and abstract ideas,” so a patent on a compound will grant the inventor a temporary monopoly on the production method of a compound or its use in treating.^[1]

In order to obtain a patent, the invention must be: (1) novel; (2) useful; and (3) nonobvious.^[2] In addition, the patent itself must be composed in a manner that makes the underlying patent-eligible combination robust to potential challenges.

Before being granted patent protection for a compound or other invention, you must state what its use is, to avoid claiming categories of inventions or materials and creating a “hunting license”. One cannot patent a process for making a compound, or the compound itself, if it has no known use at the time of application.^[3] That a compound is the subject of serious scientific research is not considered enough, nor  is evidence that structurally similar compounds have demonstrable utility.

There needs to be a substantial and immediate practical use, and one good use is considered to be enough.  Generally this requires proving practical utility, which consists of a showing of specific utility and substantive utility. To prove specific utility a particular use must be given.^[4] This includes the stipulation that the patented invention is useful to the public as disclosed in its current form for its claimed purpose.

To qualify for patent protection, the invention cannot be obvious to a person having ordinary skill in the art (“PHOSITA”).^[5] This person is the peer of the inventor, and the level of skill varies by industry. To determine obviousness, one must:

(1) determine the scope and contents of the prior art;

(2) compare the differences between the prior art and the claims;

(3) determine the level or ordinary skill in the pertinent art; and,

(4) determine whether the claims as a whole would have been obvious to one of ordinary skill at the time of the invention.^[6]

Computational modeling and software algorithms are playing an increasingly important role in technology patents. While randomization and generative software can call into question the boundaries of creativity and copyrightable material, the IP questions raised by patent considerations address distinct issues. The ideas encoded in the underlying software & software algorithms are themselves eligible for patent protection.

Infringement & Exclusive Rights

A copyright holder has a number of exclusive rights, including the right to reproduce their work, the right to prepare similar works, the right to distribute copies of their work, and the right to perform or display the work publicly.^[1]

Infringement occurs when one of the copyright holder’s exclusive rights are violated. Another party can license to use the copyrighted work in a manner authorized by the rightsholder. Other than the public display right, which is mainly applicable to still images, a mod could potentially violate any or all of these exclusive rights.

First, even the fixation of a single screen shot of a video game has been held to violate the reproduction right.

Second, any derivative work based on the underlying video game may violate the adaptation right. Derivative works are quite broadly defined, and include anything that may qualify as an: “abridgment” of the original work; an elaboration on the original work; any transformation that creates a “new work for a different market;” a work that compiles and organizes pieces of the original game or its underlying code; and any work that contains a substantial amount of the preexisting work.^[2]

In many ways these definitions are problematic because many software-based works are coded for functionality, and “disassembly of copyrighted object code is, as a matter of law, a fair use of the copyrighted work if such disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access.”^[3]

Third, a copyright holder’s exclusive right to distribution may be violated if even one digital “copy” may be copied from the hard drive to RAM to be more quickly accessed by the CPU, or if modders publish their work on the Internet. Fourth, the public performance right is violated if there are any downloads or public showing of the user’s work.^[4]

What’s Copyrightable?

Video games are rather peculiar in that the underlying software is copyrightable as a literary work whereas the display is categorized as an audiovisual work.^[5] This was determined in Midway Manufacturing Co. v. Artic International, Inc., in which Midway sued Artic for modding Galaxian then selling the mod commercially.^[6] Artic argued that the display was not subject to copyright because they were fleeting and never truly “fixed in a tangible medium of expression.” The court disagreed, granting Midway (the original gaming company) copyright in the resulting display as an audiovisual work.

After Midway the Copyright Office amended its rules, stating that a video game can be copyrighted as a literary work (for the underlying software) or for its audiovisual display, both cannot receive copyright protection in both.^[7] the visual equivalent of a creative object is recorded in computer code and is capable of being generated in a virtual environment.

When both the software and the audiovisual displays are integral components of creative expression, derivative works may utilize elements that fall outside of legal protection. A clear boundary has yet to be drawn to separate user-generated content within the game as part of the game – such as assembling a composite creature from preexisting parts^[8] – from copyrightable creative expression merely utilizing the software as the platform providing the means of creation.^[9]

When Does Copyright “Start”?

Copyright attaches only to original works. A work is “created” when it is fixed^[10] in a “tangible medium of expression” for the first time. Circuits differ on what it means for a work to be fixed for the purposes of copyright law and infringement analysis.

The law is unclear as to whether transient copies – such as those cached when transmitting digital content, or temporary copies in a computer’s RAM – are “fixed” for the purposes of copyright law.^[11] The Ninth Circuit has held that “A derivative work must be fixed to be protected under the Act, but not to infringe.”^[12]

The Ninth Circuit applied this type of approach to digital code in Micro Star v. Formgen, which addressed whether user-created levels for the video game Duke Nukem 3D constituted derivative works.^[13] On the other hand, the Second Circuit has held that in order to qualify as a derivative work, a work must be fixed and “independently copyrightable.”^[14] In MAI Systems Corp. v. Peak Computer, Inc., the Ninth Circuit held that, by loading a software program into RAM, a computer repair technician “fixed” an infringing copy^[15]. Conversely, the Second Circuit held in Cartoon Network, LP v. CSC Holdings, Inc. that a work must be embodied in a medium for more than a transitory duration.^[16]

Check out my prezi on video games:
Modding, Machinima, and MMORPGS – Copyright and Collaboration

Humans are smart. Our pre-frontal cortex ballooned at some point, differentiating us from other great apes. Lucky for us, we also have hands which give us a high degree of dexterity with which to manipulate tools.

This makes us special, but not that special. White rats have a higher brain to body weight ratio than people do. As for intelligence in other animals? MSNBC listed the 10 Smartest Animals, pointing out chimps are 98% identical, dolphins are creative, elephants are self-aware, certain types of octopi have huge brains, and pigs are smarter than dogs and arguably learn faster than chimps.

An awesome iPad app even lets people play with pigs, to bring European pig farmers into compliance with regulations that require that pigs have entertainment as befitting their intelligence to keep them in good emotional health.

I’m not about to anthropomorphize animals and say they’re really people. Obviously, only humans are people in the scientific “homo sapiens” sense of the words. But legal persons do not actually have to be people. Corporations are people, ships are people – entities that need to have some legal standing in and of themselves may end up with some partial legal personhood.^[1]

Animals, along with machines, are explicitly disallowed from holding copyrights. David Slater came up against this rule after the monkey stole his camera to take a picture.^[2] Thai elephants run up against the same limitation when they paint: “works of nature” are not copyrightable, as creativity is the purview of man.

It’s getting late, so I’ll end with a quote:

“Like the ravines or cage bars separating visitors from animals in zoos, the concept of human and animal separateness, embodied in law in animals’ status as property, denies attempts to draw nearer than strictly designated distances.

Art is a form of language that could begin to bridge that ideological barrier. Its ability to communicate unhindered by words may allow ideas to pass from animal to human minds. Recognizing animals as authors would enrich the way we as humans view the world and those with whom we share it. If copyright law is willing to extend complete protection far beyond what is reasonably required to motivate creativity, it should extend minimal protection to those whose contributions are now offered without reward and taken without legal recourse.”^[3]

“Patents were initially created to protect innovation, but they are being used as weapons by evil tech companies and patent trolls. Whether buying up patents to protect against lawsuits or amassing them in order to sue others, these villains have valued profit over creation. This is becoming a crisis, but we will prevail!”

The World’s Leading Innovators infographic by Column Five Media.

In today’s sluggish economy, the pressure to invent new products and file as many patent applications as possible is greater than ever—both for individual companies and for entire countries, which reap benefits from their citizens’ business success. What does it mean for a country to be innovative, and which nations rank at the top of the list? 

 

10 Biggest Verdicts of 2012 infographic

The verdicts with the biggest payouts in 2012. It is comprised of some of the largest patent cases in United States history!

Somewhat problematically, the nodes are vertically interconnected but not laterally so input would come in, be processed by the “input neurons” which would filter the information through one or more “hidden unit” neurons, bounce back against the “output neurons” which would process everything and broadcast it back. More complicated neural networks attempt to allow for more human-like functions through being able to extrapolate part to whole and consider input over time.

Neural networks are generally “trained” by being provided with paradigmatic examples from the domain of interest — such as art, science, or technology. The network can learn by increasing or decreasing the dominance of any given neural node depending on the desirability or correctness of its output, just as neurons within a human brain reinforce commonly used neurological pathways but prune undesirable connections.

Neural networks are used in many types of data processing and classification. For example, geneticists train neural networks to predict which genetic sequences are likely to code for proteins, and some spam filters utilize neural networks to maximize accuracy and efficiency.^[2]