Vollständiges Transkript von When Should We Recognize Something as a Property Right?

ordered liberty, republican self government, and economic diynrism. It treats 35 00:01:43.400 --> 00:01:47.159 creativity in invention as public goods worth encouraging, while also 36 00:01:47.200 --> 00:01:50.560 limiting the duration and purpose and exclusive rights. The idea 37 00:01:50.640 --> 00:01:53.079 isn't that ideas themselves should be owned the way you 38 00:01:53.120 --> 00:01:55.959 own a farm or a house. It's a subtler premise. 39 00:01:56.359 --> 00:02:00.879 That's a society that wants learning, invention, expressive culture, industrial progress, 40 00:02:00.879 --> 00:02:04.799 and technological diffusion must sometimes grant legal enforceable rights or 41 00:02:04.879 --> 00:02:11.479 intangible assets. Those rights channel private initiative towards publicans, giving authors, inventors, firms, 42 00:02:11.520 --> 00:02:13.120 investors enough control. 43 00:02:12.800 --> 00:02:14.560 To risk time and capital. 44 00:02:15.120 --> 00:02:18.919 They allow trade, licensing, specialization and markets to flourish. They 45 00:02:18.960 --> 00:02:22.319 create incentives to disclose rather than to conceal useful ideas. 46 00:02:22.840 --> 00:02:26.639 But they also carried injurers, monopoly, rent seeking, suppression of 47 00:02:26.719 --> 00:02:30.120 flow on innovation, and overclaiming of what belongs within the 48 00:02:30.120 --> 00:02:35.240 common stock knowledge. The modern debate over AI data markets 49 00:02:35.280 --> 00:02:37.759 and so on have returned us back to a deeper 50 00:02:37.840 --> 00:02:41.560 question than IP. When should the law recognize something as 51 00:02:41.560 --> 00:02:44.639 a property right. The answer can't simply be whenever something 52 00:02:44.680 --> 00:02:48.639 as value. Facts, ideas, language, scientific truth, that human style 53 00:02:48.719 --> 00:02:52.039 all have value, but they can't all be enclosed. Not 54 00:02:52.120 --> 00:02:55.000 can the answer be only when the exclusion costs nothing, 55 00:02:55.039 --> 00:03:00.159 Because every serious property regime imposes some social costs. One 56 00:03:00.199 --> 00:03:04.919 main questions these situations seem to come down to, is 57 00:03:04.919 --> 00:03:09.960 the right to exclude necessarily useful to induce valuable creation, investment, coordination, 58 00:03:10.520 --> 00:03:13.759 disclosure of personal interests. Are the boundaries the property right 59 00:03:13.840 --> 00:03:17.080 that we're going to create administrable by courtes, tribunals and regulators. 60 00:03:17.400 --> 00:03:20.039 Will a new right increase or reduce transaction costs on 61 00:03:20.120 --> 00:03:24.199 netterms or change the transaction cost burden unduly in favor 62 00:03:24.199 --> 00:03:26.280 of one side or the other? And would giving the 63 00:03:26.319 --> 00:03:29.479 rights holder this degree of control? What will the implication 64 00:03:29.560 --> 00:03:33.680 of that be for free speech, competition, science, democratic culture, 65 00:03:33.879 --> 00:03:37.159 any number of policy considerations. To help us answer and 66 00:03:37.199 --> 00:03:40.319 clarify our current debates around expanding or scaling back the 67 00:03:40.319 --> 00:03:45.039 scope of property rights, we have today three great experts. First, 68 00:03:45.120 --> 00:03:48.000 we have alder Abbott, senior Research fellow at the Market 69 00:03:48.159 --> 00:03:51.479 Center and George Mason University and a former general counsel 70 00:03:51.639 --> 00:03:55.840 at the FTC, Professor Jen Bambauer of the University of 71 00:03:55.840 --> 00:03:59.319 Florida where she teaches law on journalism. And Jeffrey deb 72 00:04:00.120 --> 00:04:02.879 So for Law Policy and the Committee for Justice. I'm 73 00:04:02.879 --> 00:04:05.360 a moderator post graduate research fellow, and look at is 74 00:04:05.719 --> 00:04:12.080 sofia mr r So. With that, let's kick things off, Jane, 75 00:04:12.719 --> 00:04:15.599 what makes property rights different from other kinds of rights, 76 00:04:15.639 --> 00:04:18.120 such as on the taught contract or statute. 77 00:04:19.279 --> 00:04:21.600 Yeah, I've given this a lot of thought because even 78 00:04:21.639 --> 00:04:25.040 though I cannot claim to be a property theorist or 79 00:04:25.079 --> 00:04:27.079 really even a property law scholar, and I'm going to 80 00:04:27.399 --> 00:04:30.839 rely on Jeffrey and Alden to help help us, you know, 81 00:04:31.000 --> 00:04:34.360 kind of elevate the discussion. 82 00:04:34.519 --> 00:04:35.240 On that side. 83 00:04:35.519 --> 00:04:39.560 I have found that my writing about privacy law and 84 00:04:39.600 --> 00:04:45.800 about free speech, the conception of information as property has been, 85 00:04:46.079 --> 00:04:48.759 you know, has for decades now been sort of creeping 86 00:04:48.800 --> 00:04:53.639 in and causing kind of some tension and some some 87 00:04:53.759 --> 00:04:58.000 kind of intellectual fuzziness in in in these areas. So 88 00:04:58.000 --> 00:05:00.040 so I think what's key to property in this This 89 00:05:00.160 --> 00:05:03.120 is debatable among property scholars, but I think it's it's 90 00:05:03.199 --> 00:05:08.319 clear that the main key right involved with property is 91 00:05:08.680 --> 00:05:11.279 the right to exclude. So if somebody has and it 92 00:05:11.279 --> 00:05:14.079 doesn't have to be an absolute right to exclude, but 93 00:05:14.079 --> 00:05:17.519 if someone has the power in most circumstances to decide 94 00:05:17.560 --> 00:05:20.360 who gets to use a resource and who doesn't, and 95 00:05:20.439 --> 00:05:24.879 if the courts will give them compensation when when their 96 00:05:25.079 --> 00:05:29.079 wishes are violated, irrespective of having to prove fault or 97 00:05:29.160 --> 00:05:32.040 kind of societal harm, then you know that you have 98 00:05:32.079 --> 00:05:34.639 a property right rather than some other type of right. 99 00:05:34.920 --> 00:05:39.079 Contrast

that with things like contract law, where a violation 100 00:05:39.240 --> 00:05:42.800 requires an agreement in advance between people. So it's more 101 00:05:42.839 --> 00:05:46.160 relational and contrast that with tort law, as you said, 102 00:05:46.480 --> 00:05:48.879 or risk management law doesn't necessarily have to be common 103 00:05:48.920 --> 00:05:54.000 law tort, but whether it's public statutes or torts, if 104 00:05:54.040 --> 00:05:57.519 the ideas that well, we're setting in advance some expectations 105 00:05:57.519 --> 00:06:01.199 about types of risks we don't want to imposed on society, 106 00:06:01.759 --> 00:06:05.920 then we would ask, did someone else's use of this 107 00:06:06.120 --> 00:06:08.399 resource cause harm? 108 00:06:08.439 --> 00:06:08.560 You know? 109 00:06:08.680 --> 00:06:09.079 Was it was? 110 00:06:09.079 --> 00:06:09.839 It? 111 00:06:09.959 --> 00:06:13.160 Was it fault blameworthy for the other person to have 112 00:06:13.240 --> 00:06:18.040 used it. So so using this, you know, I think 113 00:06:18.040 --> 00:06:21.240 this applies very easily to things that have a thinginess 114 00:06:21.319 --> 00:06:23.879 to them. You know, So if I'm if I have 115 00:06:23.959 --> 00:06:26.319 a car, it's my car, and other people can't use 116 00:06:26.319 --> 00:06:28.160 my car because then I wouldn't be able to use 117 00:06:28.160 --> 00:06:29.639 and I wouldn't be able to sort of. 118 00:06:29.759 --> 00:06:31.279 Get the best value out of it. 119 00:06:32.000 --> 00:06:36.720 But obviously with non rivalrous and tangible goods like information 120 00:06:37.000 --> 00:06:41.120 or ideas or content of any sort, it gets a 121 00:06:41.120 --> 00:06:41.959 little trickier. 122 00:06:42.560 --> 00:06:42.720 Uh. 123 00:06:42.759 --> 00:06:45.680 There are still some good reasons to assign property rights, 124 00:06:46.319 --> 00:06:48.160 but there are also some good reasons, as you said 125 00:06:48.199 --> 00:06:52.439 in your introductory remarks, to be cautious, because by assigning 126 00:06:52.480 --> 00:06:55.759 property rights, you're setting this default that a single person 127 00:06:55.800 --> 00:06:58.600 gets to decide what they think the best use is 128 00:06:58.680 --> 00:07:02.079 of that item, and it may be that may be 129 00:07:02.519 --> 00:07:04.680 sort of wrong, and maybe that other people actually have 130 00:07:04.759 --> 00:07:08.240 a much better idea of what to do with that resource, 131 00:07:08.360 --> 00:07:12.360 and maybe their interests either conflict or a sort of 132 00:07:12.439 --> 00:07:14.120 orthogonal to the original rights holder. 133 00:07:15.800 --> 00:07:18.720 Cool Cool all than Jess, do you have anything to 134 00:07:19.000 --> 00:07:21.040 add to that definition of those distinctions? 135 00:07:25.160 --> 00:07:28.000 I think I think Jane summarizing very well. I mean, 136 00:07:29.319 --> 00:07:33.160 the key thing about property, someone gets tricky because there's 137 00:07:33.199 --> 00:07:36.040 a moral dimension, don't they talk about that a little 138 00:07:36.040 --> 00:07:40.480 bit later? As well as a purely utilitarian dimension. It's 139 00:07:40.519 --> 00:07:44.319 not just what what rules allow the maximum output of 140 00:07:44.399 --> 00:07:48.399 a certain go to goods or services or expressions. 141 00:07:48.600 --> 00:07:51.639 They're all for societies also, are you know? 142 00:07:51.720 --> 00:07:54.759 How are we are we able to protect the rights 143 00:07:55.279 --> 00:07:59.560 of individuals to protect what they have, what they have 144 00:07:59.680 --> 00:08:02.480 created because they don't want others to use it. 145 00:08:02.639 --> 00:08:04.639 The right to exclude is and what was saying Princess. 146 00:08:04.680 --> 00:08:09.040 A trademark owner may have a specific market, identifies and 147 00:08:09.120 --> 00:08:12.160 prevents confusion and good or service, and thus may not 148 00:08:12.240 --> 00:08:16.360 want anyone else to use that. There may be an 149 00:08:16.360 --> 00:08:19.879 economic reason for that if others use it but degrade 150 00:08:19.920 --> 00:08:24.399 the quality. It can cause confusion, it may lose its value. 151 00:08:24.399 --> 00:08:27.120 But at the same time it's also there's a moral dimension. 152 00:08:27.160 --> 00:08:29.680 I came up with the idea and the thoughts to 153 00:08:30.480 --> 00:08:33.840 use this, and I want to control it completely. That's 154 00:08:33.919 --> 00:08:37.159 particularly the case in the area so called rights and personality, 155 00:08:37.200 --> 00:08:40.519 which have existed for about the century or so and 156 00:08:40.600 --> 00:08:44.080 half essentially mainly in state common law and same state's 157 00:08:44.159 --> 00:08:47.480 tangritory law. But they're becoming very important right now. Think 158 00:08:47.559 --> 00:08:52.879 of the college athletes playing football and baseball. Now they 159 00:08:52.960 --> 00:08:57.799 are being paid, usually by sports supporters of particular school, 160 00:08:58.279 --> 00:09:01.639 large amounts of money to attend this school, and supposedly 161 00:09:01.720 --> 00:09:04.559 as to protect your name, image, and likeness. The idea 162 00:09:04.840 --> 00:09:09.399 is that if an individual has invested talents in developing 163 00:09:09.399 --> 00:09:13.960 a particular personal as Michael Jackson or particular athlete, they 164 00:09:14.000 --> 00:09:17.399 have some right to control it. But there are always 165 00:09:17.519 --> 00:09:20.320 boundary questions. You know, how far does this right extent? 166 00:09:21.080 --> 00:09:24.559 Just as how soili fide trademark. Going back to trademark, 167 00:09:24.600 --> 00:09:27.480 how far does that extent? Yeah, it may be, it 168 00:09:27.519 --> 00:09:30.159 may be right. You have a right to protect what 169 00:09:30.240 --> 00:09:33.440 you develop, but what if you don't police it? For instance, 170 00:09:33.440

--> 00:09:38.000 the term kleenex, a term Sermus used to or trademarks 171 00:09:39.039 --> 00:09:45.200 that referred to specific inventions by particular parties. But they 172 00:09:45.240 --> 00:09:48.000 didn't check, they didn't try to prevent other people from 173 00:09:48.120 --> 00:09:51.720 using the term generically, and then and then they lost 174 00:09:51.759 --> 00:09:55.320 control over it. The idea is, this is certain rights 175 00:09:55.399 --> 00:10:00.399 you need to maintain control over. And if you owned 176 00:10:01.360 --> 00:10:04.759 the claim that you are preventing confusion and so on, 177 00:10:05.000 --> 00:10:08.440 or preventing the or have a right to prevent the 178 00:10:08.559 --> 00:10:12.559 benefits of which generic use fall away. So it's tricky, 179 00:10:13.039 --> 00:10:16.919 and really these questions differ upon it based upon the 180 00:10:17.000 --> 00:10:20.279 type of right you're dealing with. For example, copyright doesn't 181 00:10:20.879 --> 00:10:25.240 protect ideas. There's many ideas that are very similar about 182 00:10:25.279 --> 00:10:28.120 a particular novel John gone with them when the pride 183 00:10:28.120 --> 00:10:36.480 and prejudice, But it protects particular manifestations, particular expressions, very 184 00:10:36.519 --> 00:10:42.399 precise expressions of those ideas. So I think I'll stop there. 185 00:10:42.919 --> 00:10:46.559 So there are lots of tricky boundary questions and laws. 186 00:10:46.639 --> 00:10:49.799 I think you can already see in designing whether property 187 00:10:49.879 --> 00:10:54.759 right is being properly applied in case or not. 188 00:10:56.240 --> 00:10:57.279 Yeah, I think it's. 189 00:10:57.159 --> 00:10:59.720 Also something really important that right because we often talk 190 00:10:59.759 --> 00:11:04.480 about these things in very kind of utilitarian terms. You know, 191 00:11:04.519 --> 00:11:07.039 we need to have these rights so we can encourage 192 00:11:07.120 --> 00:11:10.840 investment and economic growth and all that good stuff. But 193 00:11:10.879 --> 00:11:14.559 there's also moral dimension, you know, whether it's fairness sometimes 194 00:11:14.559 --> 00:11:18.600 an amorphice concept giving people control over their own reputations 195 00:11:19.559 --> 00:11:22.120 and the value that they bring to you know, whatever 196 00:11:22.159 --> 00:11:28.120 gets generated. So, yeah, fascinating stuff, Jane. Some of your 197 00:11:28.200 --> 00:11:33.320 research has focused on, you know, calls for the right 198 00:11:33.360 --> 00:11:35.960 to publicity, you know, artists who want more control over 199 00:11:36.000 --> 00:11:39.559 their imagure reputation. Uh, those of us who want more 200 00:11:39.720 --> 00:11:42.039 control over our own data that we generate when we 201 00:11:42.080 --> 00:11:45.080 go onto social media platforms and so on, given how 202 00:11:45.399 --> 00:11:48.879 large and profitable these companies are. Uh, there's bleeds and 203 00:11:48.919 --> 00:11:53.679 do talk about data privacy rules and sometimes which which 204 00:11:53.679 --> 00:11:58.039 sometimes seem to treat our data as a quasi privacy right. 205 00:11:59.399 --> 00:12:00.559 So could you you could. 206 00:12:00.519 --> 00:12:03.480 Comment a little bit about you know, legal movements in 207 00:12:03.480 --> 00:12:06.519 this area, whether here or in Europe. And you know, 208 00:12:06.559 --> 00:12:08.919 if not through these sorts of quasi property rights and 209 00:12:09.000 --> 00:12:13.159 give people control, how else might we address these concerns? 210 00:12:15.000 --> 00:12:18.679 Yeah, like picking up on something else and said, it's 211 00:12:18.679 --> 00:12:23.039 true that copyright law does not cover ideas. There needs 212 00:12:23.080 --> 00:12:26.519 to be a particular, you know, particularized expression that in 213 00:12:26.639 --> 00:12:29.519 order to be copyrightable. But these other areas of law 214 00:12:29.679 --> 00:12:35.080 are not quite so strict. And so if if the 215 00:12:35.120 --> 00:12:38.840 idea is, well, the fact that I visited this particular 216 00:12:38.879 --> 00:12:41.600 website and clicked on this you know, I'm thinking about 217 00:12:41.639 --> 00:12:46.200 web browsing data right clicked on this particular link, that is, 218 00:12:46.679 --> 00:12:48.879 you could treat it as like a fact or an 219 00:12:48.919 --> 00:12:52.320 idea or something that wouldn't be copyrightable. And yet nevertheless, 220 00:12:53.080 --> 00:12:56.840 for kind of instinctive, whether whether we call it moral 221 00:12:57.039 --> 00:13:00.440 or you know, something else, and the instinct think is 222 00:13:00.480 --> 00:13:03.080 for people to say, hey, that's yeah, it's information, but 223 00:13:03.120 --> 00:13:07.679 it's my information. And and so a lot of privacy 224 00:13:07.799 --> 00:13:11.919 law it didn't quite start out this way, but uh, 225 00:13:12.399 --> 00:13:16.919 for the last few decades at least, especially with you know, Europe, 226 00:13:17.480 --> 00:13:21.039 i'd say being at the forefront, there's been an eagerness 227 00:13:21.080 --> 00:13:25.240 to try to recognize through law that that very instinct 228 00:13:25.960 --> 00:13:28.440 that even though this is just a fact, I mean, 229 00:13:28.440 --> 00:13:30.399 you could you could treat the right of personality the 230 00:13:30.840 --> 00:13:32.840 sort of the same way, like this, this is what 231 00:13:33.120 --> 00:13:35.279 my face looks like. I'm a celebrity or you know, 232 00:13:35.320 --> 00:13:37.320 I'm a college football player. 233 00:13:38.480 --> 00:13:40.039 This is the sort of movement I make. 234 00:13:40.360 --> 00:13:44.159 You know, It's not like it's not like these games 235 00:13:44.200 --> 00:13:47.279 necessarily replicate exactly what they did in a particular game, 236 00:13:47.360 --> 00:13:53.600 But the idea is taking on some information that that 237

00:13:53.759 --> 00:13:57.559 the you know, the that the privacy kind of victim 238 00:13:57.600 --> 00:14:01.240 feels like should have been under their control. And so 239 00:14:01.440 --> 00:14:05.039 Europe at least has tried to, you know, through through 240 00:14:05.320 --> 00:14:10.279 the GDPR and other sort of antillary uh laws, has 241 00:14:10.759 --> 00:14:15.759 has tried to kind of maximize that control model. There 242 00:14:15.799 --> 00:14:19.000 are other ways that a business, there are other justifications 243 00:14:19.000 --> 00:14:21.960 for a business to use personal data, but those other 244 00:14:22.120 --> 00:14:27.120 justifications are interpreted extremely narrowly, which means that getting consent 245 00:14:27.440 --> 00:14:30.279 is the way that, you know, most of the time 246 00:14:30.399 --> 00:14:34.039 that the company will be able to do something unusual 247 00:14:34.120 --> 00:14:38.919 or new right new with the data. And so I've 248 00:14:39.200 --> 00:14:42.639 come out sort of critical of this in part because 249 00:14:42.720 --> 00:14:47.679 every time, uh, you know, every time there's a property interest, 250 00:14:47.799 --> 00:14:49.799 whether it's sounding in you know, sort of moral or 251 00:14:49.840 --> 00:14:53.799 economiconomic theory, uh, every time that someone's making acclaim to 252 00:14:53.840 --> 00:14:57.679 a property interest in some piece of information, it is 253 00:14:57.759 --> 00:15:02.080 carving out some liberty interest in someone that someone else 254 00:15:02.240 --> 00:15:06.120 might claim, you know, maybe even with with the attribute 255 00:15:06.159 --> 00:15:08.159 of you know, sort of moral the moral high ground. 256 00:15:09.759 --> 00:15:14.879 So if if I cannot observe or record, or share 257 00:15:15.039 --> 00:15:19.639 or subsequently use some information about how people browse the 258 00:15:19.679 --> 00:15:24.919 internet or in order to you know, produce new knowledge 259 00:15:25.399 --> 00:15:28.759 about the world, then then that is in some sense 260 00:15:29.360 --> 00:15:35.120 taking away an opportunity from from the users of the 261 00:15:35.240 --> 00:15:39.200 data that might claim to have a liberty interest. 262 00:15:41.240 --> 00:15:41.440 Yeah. 263 00:15:41.759 --> 00:15:46.480 One thing also is a good point Jane made is data. 264 00:15:46.600 --> 00:15:51.960 For example, what what if people voluntarily provide, say their 265 00:15:52.000 --> 00:15:56.639 birthday to address some other personal data. Lots of it 266 00:15:56.679 --> 00:16:01.320 actually maybe discoverable on on online and my third parties, 267 00:16:01.360 --> 00:16:04.480 but they're just using it to have access to certain database. 268 00:16:04.799 --> 00:16:07.679 And let's say the users collect that and many other people, 269 00:16:08.440 --> 00:16:12.320 many other individuals who are browsing anonymoum anonymize it, but 270 00:16:12.440 --> 00:16:16.039 allow that to sort of

direct programs people of a 271 00:16:16.039 --> 00:16:19.600 certain aide or background, which may actually benefit them. 272 00:16:19.480 --> 00:16:21.960 More and they may be willing to You. 273 00:16:21.840 --> 00:16:24.600 Can also direct ads in a certain way. So in 274 00:16:24.639 --> 00:16:28.240 other words, the value has been created. Yes, this information 275 00:16:28.840 --> 00:16:33.440 quote unquote belongs to a particular person or but it 276 00:16:33.480 --> 00:16:36.440 is it's a third party is created value. So then 277 00:16:36.480 --> 00:16:39.639 you get in a question about it has this value creation, 278 00:16:41.320 --> 00:16:45.879 how do you weigh that against any privacy rise, particularly. 279 00:16:45.279 --> 00:16:48.200 When in the online world. 280 00:16:48.440 --> 00:16:52.679 In the online world, many examples of supposing historically non 281 00:16:52.679 --> 00:16:56.960 public information may be easily obtainable, because if you create 282 00:16:57.039 --> 00:17:02.080 too much of a blockage, then valuable applications which could 283 00:17:02.080 --> 00:17:07.559 benefit a lot of people consumers and businesses online can't 284 00:17:07.599 --> 00:17:12.000 be developed because of legal threats of legal liability. 285 00:17:13.680 --> 00:17:15.359 Yeah, I think one problem is that data. 286 00:17:15.640 --> 00:17:19.799 You know, the person described in the data does not 287 00:17:21.079 --> 00:17:25.759 have a good sense of the likely consequences, both positive 288 00:17:25.759 --> 00:17:28.279 and negative. And so this is where I think there 289 00:17:28.319 --> 00:17:31.599 is a deviation from at least the economic utilitarian theory 290 00:17:31.640 --> 00:17:34.279 of property, where normally we think the person with the 291 00:17:34.359 --> 00:17:36.160 resource they have a lot of you know, this is 292 00:17:36.279 --> 00:17:37.960 like the high X model where they have a lot 293 00:17:38.039 --> 00:17:42.880 of inside information that and so if they if they 294 00:17:43.240 --> 00:17:45.880 know the value and they know the value of giving 295 00:17:45.880 --> 00:17:48.839 it away as well, that's not as true or at 296 00:17:48.880 --> 00:17:51.359 least I think the transaction costs the information costs of 297 00:17:51.359 --> 00:17:55.319 figuring out what your life is going to be like 298 00:17:55.359 --> 00:17:58.279 if you do or do not let let companies track you. 299 00:17:58.920 --> 00:18:02.440 It's very hard for consumers or really anyone to know 300 00:18:02.880 --> 00:18:06.559 with great certainty, but people do tend to undervalue what 301 00:18:06.640 --> 00:18:09.880 they get back, as Alden said, from from some of 302 00:18:09.920 --> 00:18:13.000 these tracking activities, Yeah, I. 303 00:18:12.920 --> 00:18:14.839 Think, I mean those are really interesting points. 304 00:18:14.839 --> 00:18:17.160 And also I mean, you know, you touched on something 305 00:18:17.160 --> 00:18:20.440 important there, which is the implicit assumption that the property 306 00:18:20.519 --> 00:18:22.160 rights sold will know how to. 307 00:18:22.200 --> 00:18:23.279 Best use the property. 308 00:18:23.680 --> 00:18:25.319 I can think of a number of examples where, you know, 309 00:18:25.359 --> 00:18:29.039 maybe that isn't literally true, right, you know, where you know, 310 00:18:29.079 --> 00:18:31.920 often people who own a property will kind of I 311 00:18:31.920 --> 00:18:34.640 mean they own a share in it so on, through 312 00:18:34.720 --> 00:18:37.839 maybe an intermediary, and then they pay for those services 313 00:18:37.880 --> 00:18:40.559 for it to be managed their asset management firms and 314 00:18:40.559 --> 00:18:42.920 so on. I mean to put your point though, with 315 00:18:42.960 --> 00:18:45.359 regard to data, I mean, I think there is an 316 00:18:45.440 --> 00:18:47.839 argument to be made that the economic utility of the 317 00:18:47.880 --> 00:18:51.920 data is in most cases not in that individual piece 318 00:18:51.920 --> 00:18:55.480 of data itself. You know, the way like a drop 319 00:18:55.519 --> 00:18:58.079 of oil is one small share in a big barrel 320 00:18:58.119 --> 00:19:01.480 of oil, right, it seems to be more so aggregating 321 00:19:01.519 --> 00:19:04.799 it and turning it into something that has utility, which 322 00:19:04.880 --> 00:19:08.640 in most cases what the platform would normally be doing. 323 00:19:08.759 --> 00:19:11.079 And of course you know, there isn't that same economic 324 00:19:11.160 --> 00:19:14.480 incentive to for someone to pay for someone to have 325 00:19:14.480 --> 00:19:19.039 the best use of their data. That's seems to me anyway, 326 00:19:19.079 --> 00:19:20.240 But thanks a lot for that, you know. 327 00:19:20.279 --> 00:19:23.039 One of the interesting things also that you mentioned. 328 00:19:26.440 --> 00:19:28.680 Property rights often come down to, you know, is there 329 00:19:28.680 --> 00:19:32.039 a thinkiness the thing if it's tangible or intangible, And 330 00:19:32.079 --> 00:19:35.960 some intangible things are thinking this that others don't. I'm 331 00:19:36.000 --> 00:19:38.440 reading now, you know, some articles arguing that we should 332 00:19:38.480 --> 00:19:41.920 change our copyright law and recognize corporate in artistic style 333 00:19:42.359 --> 00:19:45.920 because AI tools have now allowed, you know, you to 334 00:19:45.920 --> 00:19:49.440 create an algorithm that can arguably quantify that the style 335 00:19:49.480 --> 00:19:52.079 of a drake or a tailors with which I find interesting. 336 00:19:52.079 --> 00:19:54.720 I'm not personally convinced, but you know, there are some 337 00:19:54.839 --> 00:19:56.920 interesting movements in the space. 338 00:19:58.440 --> 00:20:02.039 With that in mind, I want to move on to a. 339 00:20:02.000 --> 00:20:06.759 Controversial topic that's being widely discussed nowadays, the use of 340 00:20:07.079

--> 00:20:11.559 the creational generative AI tools and training them often using 341 00:20:12.119 --> 00:20:15.279 you know, the sum total of human knowledge, including copyrighted works. 342 00:20:15.839 --> 00:20:20.759 So well, for Jeff quote unquote information he owns to 343 00:20:20.799 --> 00:20:24.759 be free, right. AI tools are often just, some would argue, 344 00:20:24.759 --> 00:20:28.359 more efficient to doing what humans do learning patterns. Similarly, 345 00:20:28.400 --> 00:20:32.599 in forod producing creative outputs now we hold humans liable 346 00:20:32.839 --> 00:20:36.119 for violating copyright if they release art, music, of books 347 00:20:36.160 --> 00:20:40.319 that replicate the existing works that permission not for studying. 348 00:20:39.839 --> 00:20:41.279 And learning works. 349 00:20:41.640 --> 00:20:45.200 So why should we treat AI tools differently by extending 350 00:20:45.200 --> 00:20:47.200 copyrights to the training. 351 00:20:50.720 --> 00:20:51.880 Well, you know, I. 352 00:20:54.880 --> 00:20:59.559 Struggle with them a lot of the current discussion on 353 00:20:59.599 --> 00:21:02.759 the top because it's it's always limited to a sort 354 00:21:02.759 --> 00:21:07.920 of a descriptive or positive perspective, And to me, the 355 00:21:07.920 --> 00:21:10.640 better discussion is one is more of a normative perspective. 356 00:21:10.640 --> 00:21:13.799 In other words, you know, I don't necessarily disagree that 357 00:21:13.880 --> 00:21:19.400 under the current sort of fair use regime that you 358 00:21:19.400 --> 00:21:22.400 you can certainly make a strong argument that you know 359 00:21:23.519 --> 00:21:29.039 that this is fair use. But again my question, again 360 00:21:29.119 --> 00:21:32.000 is from a different perspective, is should it be you 361 00:21:32.200 --> 00:21:37.559 should we be utilizing copyrighted works? Should we be utilizing 362 00:21:38.079 --> 00:21:42.279 the works of authors, you know, without compensation? 363 00:21:43.319 --> 00:21:43.759 Uh? 364 00:21:43.799 --> 00:21:47.359 And it implicates you know, a number of concerns I have, 365 00:21:47.680 --> 00:21:51.720 particularly in the I P space, about you know, the 366 00:21:51.839 --> 00:21:55.960 separation of powers issues, uh, and whether you know we 367 00:21:55.960 --> 00:21:58.279 should be leaving so much of this to the course. 368 00:21:59.519 --> 00:22:02.359 You know, the Constitution. 369 00:22:02.440 --> 00:22:05.359 Article one, section eight, clause eight gives plenary power to 370 00:22:05.440 --> 00:22:10.279 Congress to set these rules, and yet you know, we 371 00:22:10.440 --> 00:22:13.400 have you know again, and to the point that you 372 00:22:13.720 --> 00:22:17.880 brought up in the copyright, the transformative use training data, 373 00:22:18.240 --> 00:22:23.200 you know, you know, you know, it's all on this 374 00:22:23.319 --> 00:22:28.480 sort of again untransformative use, which is again is entirely 375 00:22:28.519 --> 00:22:30.319 a court created construct. 376 00:22:30.599 --> 00:22:32.319 You know, it was from a you know, it comes 377 00:22:32.359 --> 00:22:33.440 back from their early. 378 00:22:33.279 --> 00:22:36.599 Nineties, from a judge who wrote a law review article, 379 00:22:37.039 --> 00:22:39.839 and it was picked up by Justice suitor in the 380 00:22:39.880 --> 00:22:43.039 Campbell case, and all of a sudden boom, there it is. 381 00:22:43.119 --> 00:22:46.640 It's now where in transformative the word transformative does not 382 00:22:46.680 --> 00:22:48.200 appear in the statute anywhere. 383 00:22:48.440 --> 00:22:52.279 It's entirely a judge made construct. That and what's. 384 00:22:52.079 --> 00:22:55.680 Happened is what always happens when judges in the courts 385 00:22:55.720 --> 00:22:59.039 get involved where they shouldn't be, is it just expands, right, 386 00:22:59.039 --> 00:23:03.400 and now it's just assumed and subsumed the entire you 387 00:23:03.440 --> 00:23:06.319 know debate, uh, you know, And if we just sort 388 00:23:06.319 --> 00:23:09.680 of go back to sort of first principles founding principles, 389 00:23:09.680 --> 00:23:12.559 which you know, that's sort of my perspective, you know, 390 00:23:12.640 --> 00:23:16.039 and why you know, to my answer to your initial question, 391 00:23:16.160 --> 00:23:19.200 the title, the title of the webinar here is you know. 392 00:23:19.240 --> 00:23:22.759 My answer is, you know, early and often, you know 393 00:23:22.880 --> 00:23:25.720 property when I should be found early, early and often. 394 00:23:25.759 --> 00:23:28.680 I'm the school of the student of the Austrian school, 395 00:23:28.759 --> 00:23:32.119 and I think you know, you know that kind of 396 00:23:32.240 --> 00:23:35.720 you know, uh, you know is essential to store the 397 00:23:35.759 --> 00:23:39.880 market to create value. Is creating those property rights expansively 398 00:23:40.240 --> 00:23:44.279 and early and simply and allowing the market process to 399 00:23:44.319 --> 00:23:47.279 take it to do what it does, and allow parties 400 00:23:47.319 --> 00:23:49.839 to adapt. And I just I don't think we're sort 401 00:23:49.839 --> 00:23:52.200 of giving ourselves enough opportunity. But again, getting back to 402 00:23:52.319 --> 00:24:00.960 again the transformative copyright case again, in my view, you know, uh, 403 00:24:01.160 --> 00:24:05.880 you know, the proper analysis again is going back to 404 00:24:05.920 --> 00:24:08.240 the statute. Whether the statute talks about the nature and 405 00:24:08.279 --> 00:24:11.079 the various factors, the nature and purpose of the use. Well, 406 00:24:11.319 --> 00:24:13.839 this is as commercial use as you can possibly get. 407 00:24:14.000 --> 00:24:15.799 But we never seem to talk about. 408 00:24:15.480 --> 00:24:18.079 That in the discussion of whether this is fair use. 409 00:24:18.160 --> 00:24:21.480 It always jumps to the

judge made doctrine of is 410 00:24:21.519 --> 00:24:24.480 it transformative or not? You know, My view is, you know, 411 00:24:24.720 --> 00:24:25.799 that's not the way to go. 412 00:24:26.480 --> 00:24:26.799 Uh. 413 00:24:26.839 --> 00:24:31.480 And we're depriving these authors, these innovators, these rights holders, 414 00:24:31.519 --> 00:24:36.680 of proper compensation for their work and Frankly, I think 415 00:24:36.720 --> 00:24:39.160 in the long run, we're harming ourselves because if you 416 00:24:39.279 --> 00:24:41.519 find a way to compensate these people the way that 417 00:24:41.599 --> 00:24:44.039 you know, based on the way the system is set up, 418 00:24:44.400 --> 00:24:46.759 you're going to get more of what they do, and 419 00:24:46.799 --> 00:24:49.000 that's going to benefit all of us. And that's going 420 00:24:49.039 --> 00:24:52.160 to benefit you know, the AI industry or you know, 421 00:24:52.480 --> 00:24:52.960 and this. 422 00:24:52.920 --> 00:24:54.640 Applies in the patent space as well. 423 00:24:55.240 --> 00:24:58.240 You're going to get more uh, you know, innovation, which 424 00:24:58.279 --> 00:25:01.160 is again what we all say we all want. 425 00:25:01.759 --> 00:25:01.960 Uh. 426 00:25:02.039 --> 00:25:04.440 And if they're properly compensated, they're going to do more work, 427 00:25:04.440 --> 00:25:06.279 they're going to generate more and that's going to benefit 428 00:25:06.359 --> 00:25:08.599 where we need to go and again and and and 429 00:25:08.720 --> 00:25:13.279 you know, I have no desire to to hold back 430 00:25:14.279 --> 00:25:18.039 the AI industry. I believe the wholeheartedly that we need 431 00:25:18.079 --> 00:25:19.839 to win this race. We need to be the leader, 432 00:25:20.599 --> 00:25:23.240 and we need to innovate there. But there ought to 433 00:25:23.279 --> 00:25:26.799 be a way to respect these folks property rights in 434 00:25:26.839 --> 00:25:30.720 a way again that again respects them and incentivizes them 435 00:25:30.759 --> 00:25:33.200 to do more, which is going to be feed for 436 00:25:33.279 --> 00:25:35.640 a better outcome on on the on the a on 437 00:25:35.720 --> 00:25:39.279 the users of this data, the large language model creators, 438 00:25:39.680 --> 00:25:43.119 and uh you know and and so I think that again, 439 00:25:43.839 --> 00:25:47.640 if we set some simple categorical rules here, the parties 440 00:25:47.680 --> 00:25:50.559 will adapt. We have seen many license agreements take place 441 00:25:50.599 --> 00:25:52.960 for the use of this data, so it. 442 00:25:52.920 --> 00:25:53.759 Can be done. 443 00:25:54.160 --> 00:25:56.119 And as I always say, we found a way to 444 00:25:56.160 --> 00:25:59.400 compensate you know, a recording artist when their songs are 445 00:25:59.400 --> 00:26:01.640 played ringed on the Internet. We can figure out a 446 00:26:01.680 --> 00:26:04.880 way for some reasonable compensation to authors. Again, they're not

447 00:26:04.880 --> 00:26:07.039 going to get rich off of this, but it will 448 00:26:07.079 --> 00:26:10.839 show that we're respecting their property rights and it will 449 00:26:10.880 --> 00:26:13.839 create certainly no disincentive to do more, which is I 450 00:26:13.839 --> 00:26:16.640 think is what we what we really want out of 451 00:26:16.720 --> 00:26:19.319 the system here. So you know that that's kind of 452 00:26:19.440 --> 00:26:22.880 you know where I think about anyway, you know, sort 453 00:26:22.880 --> 00:26:26.680 of the you know, the use of copyrighted materials in 454 00:26:27.119 --> 00:26:28.920 the large language model training setting. 455 00:26:29.920 --> 00:26:31.480 Right, can I sue? 456 00:26:32.240 --> 00:26:34.119 So go ahead, dow then you. 457 00:26:34.079 --> 00:26:37.880 Know, the Supreme Court in twenty twenty one and sixty 458 00:26:38.000 --> 00:26:44.000 two said the role that Google is compying of eleven thousand, 459 00:26:44.119 --> 00:26:47.680 five hundred lines of job by api I'll developed by 460 00:26:47.759 --> 00:26:52.119 Oracle was cop fair use because it was transformative allowed 461 00:26:52.200 --> 00:26:55.039 Google programmers to use some of your skills to create 462 00:26:55.119 --> 00:26:59.200 new smartphone natural you know, they could have easily entered 463 00:26:59.240 --> 00:27:02.319 into a license land Google, and there were a number 464 00:27:02.319 --> 00:27:05.200 of commentators have said there's a huge amount of copyright 465 00:27:05.680 --> 00:27:09.279 or competitive here. This is no lesson theft and calling 466 00:27:09.359 --> 00:27:12.440 it a transformative use. This was just a tiny bit. 467 00:27:12.759 --> 00:27:15.440 This was a huge amount, and it created a huge 468 00:27:15.480 --> 00:27:20.079 value for Google. But oracles and lots of share and sharing. 469 00:27:19.799 --> 00:27:25.039 That bad, you know, So I might come around eventually 470 00:27:25.079 --> 00:27:28.200 in a second to agree with you both, and especially 471 00:27:28.200 --> 00:27:30.880 you Jeff, but I actually still though I'm struggling a 472 00:27:30.920 --> 00:27:31.720 little bit with the. 473 00:27:34.119 --> 00:27:37.200 Conceptually with this. It's if you're talking. 474 00:27:36.880 --> 00:27:39.240 Purely about cases that could be brought against an AI 475 00:27:39.279 --> 00:27:44.759 company based on output that is that is uh, you know, 476 00:27:44.920 --> 00:27:48.039 whether transformative or not, that is that is a copy, 477 00:27:48.559 --> 00:27:50.960 then everything you said makes sense to me. But a 478 00:27:51.039 --> 00:27:52.920 lot of these claims are not about the output. They're 479 00:27:52.920 --> 00:27:56.279 about the input of training the model. And in that sense, 480 00:27:56.319 --> 00:27:57.960 if we're kind of going to, you know, do our 481 00:27:58.000 --> 00:28:02.519 analogy to the humans, it's like saying that because I've 482 00:28:02.559 --> 00:28:06.839 read Shakespeare and if I later some you know, in 483 00:28:06.880 --> 00:28:10.720 some even unknown to me way sort of process that 484 00:28:10.880 --> 00:28:15.640 and wound up writing a totally different story about starcross lovers, 485 00:28:15.640 --> 00:28:19.920 but didn't use that phrase that that itself is some 486 00:28:19.960 --> 00:28:22.799 sort of uh is you know, is some sort of 487 00:28:22.880 --> 00:28:24.720 violation of the Coveryright Act And I don't, so I 488 00:28:24.720 --> 00:28:25.160 don't see that. 489 00:28:25.200 --> 00:28:25.720 So I'm wondering. 490 00:28:26.519 --> 00:28:29.880 So what I'm struggling though, with, is that you're right though, 491 00:28:29.960 --> 00:28:33.200 that if there's no recognition of the value of input 492 00:28:33.240 --> 00:28:36.279 training data, of the you know, hold rights holders for 493 00:28:36.480 --> 00:28:40.160 for input training data. Thinking about the New York Times 494 00:28:40.160 --> 00:28:42.720 case in particular, it means that all of this work, 495 00:28:42.759 --> 00:28:45.720 all of this expensive work that they do with investigative journalism, 496 00:28:45.759 --> 00:28:49.599 can just be dumped into an LM and the knowledge 497 00:28:49.799 --> 00:28:52.319 is kind of extracted in this, you know, in this 498 00:28:52.640 --> 00:28:55.240 in this sort of mysterious way, and the output will 499 00:28:55.279 --> 00:28:58.039 never be a copy. And so they sort of I 500 00:28:58.279 --> 00:29:01.000 see the incentive problem, but I mean, just a straight 501 00:29:01.079 --> 00:29:04.640 up application of the copyright statute. I don't see how 502 00:29:04.640 --> 00:29:08.440 you get from the statute we have today to to 503 00:29:09.200 --> 00:29:11.720 liability based on input data input only. 504 00:29:14.119 --> 00:29:16.440 I guess my thought is, again, you know, they're clearly 505 00:29:16.480 --> 00:29:18.759 making a copy of the work, which is one of 506 00:29:18.759 --> 00:29:21.519 the rights protected by the statute. And it's certainly the 507 00:29:21.559 --> 00:29:24.319 expression that matters because they create these vectors off of 508 00:29:24.359 --> 00:29:28.720 the actual specific expression that the author used. 509 00:29:28.759 --> 00:29:31.119 That's how the vectors are created. What word order. 510 00:29:31.319 --> 00:29:35.480 So it's to me it's essentially what copyright is. This 511 00:29:36.279 --> 00:29:40.359 is designed to protect and uh, you know, and again, 512 00:29:40.440 --> 00:29:41.240 you know, again I. 513 00:29:41.160 --> 00:29:43.640 Struggle with this whole. You know, the law, as we know, 514 00:29:43.839 --> 00:29:45.240 always lacks right. 515 00:29:45.359 --> 00:29:47.920 So you know, this is a you know, this fair 516 00:29:48.039 --> 00:29:51.759 use has been around for two hundred almost two hundred years. 517 00:29:51.960 --> 00:29:52.599 You know, it was. 518 00:29:52.559 --> 00:29:56.359 Codified in

seventy six and then again then this then 519 00:29:56.359 --> 00:30:00.680 the courts got involved and expanded it. U. But you know, 520 00:30:00.799 --> 00:30:04.000 I just you know, I don't think that you know, 521 00:30:04.839 --> 00:30:06.680 applying it as a as a. 522 00:30:06.680 --> 00:30:08.400 You know, a fifty year old statute and a two 523 00:30:08.440 --> 00:30:09.599 hundred year old doctrine. 524 00:30:09.720 --> 00:30:11.720 You know, it needs to be updated, you know, to 525 00:30:12.119 --> 00:30:16.400 you know, to adapt to the current use, uh and 526 00:30:16.680 --> 00:30:20.039 to respect property rights. And again I just I don't 527 00:30:20.079 --> 00:30:22.000 think it is That's why again I really think this 528 00:30:22.079 --> 00:30:22.319 is a. 529 00:30:22.279 --> 00:30:24.960 More of a normative discussion. What should it be? 530 00:30:25.640 --> 00:30:28.279 Uh, you know, and we should not be taking people's 531 00:30:28.359 --> 00:30:34.720 work without compensation. That's just anti the American experiment, our 532 00:30:34.759 --> 00:30:35.839 founding principles. 533 00:30:36.119 --> 00:30:38.160 Back to the Declaration, which again is how I look 534 00:30:38.160 --> 00:30:38.960 at this stuff. 535 00:30:39.599 --> 00:30:43.079 Uh, you know requires that that they did these rights 536 00:30:43.119 --> 00:30:46.640 be be protected, be respected, and be compensated. 537 00:30:47.160 --> 00:30:47.400 Uh. 538 00:30:47.480 --> 00:30:49.799 And you know again any other issue I just want 539 00:30:49.799 --> 00:30:53.279 to point out again it was my concern, my where 540 00:30:53.279 --> 00:30:57.279 I recoil of this transformative use analysis that we just 541 00:30:57.640 --> 00:31:00.720 focus on so much today is you know, implicit in 542 00:31:00.720 --> 00:31:03.920 that is what is this? There's always like a second work, 543 00:31:04.319 --> 00:31:07.759 a specific second work that we're talking about whether there 544 00:31:07.839 --> 00:31:12.240 was transformation, Well, what is that in the LLM training 545 00:31:13.000 --> 00:31:18.319 module context? Again, it just doesn't fit very well. So 546 00:31:18.400 --> 00:31:21.400 again I just don't think that you know, this, the 547 00:31:21.680 --> 00:31:27.160 hanging this and this debate around a positive analysis of 548 00:31:27.200 --> 00:31:31.160 the current transformer views fair use regime makes a lot 549 00:31:31.200 --> 00:31:33.319 of sense, and it's leading us down the wrong road 550 00:31:33.359 --> 00:31:33.880 in my view. 551 00:31:34.599 --> 00:31:37.880 Yeah, just to throw it introject briefly, I think one 552 00:31:37.920 --> 00:31:40.759 area where fair use makes so clearly the most sense 553 00:31:41.559 --> 00:31:47.680 is parodies of transformations to make fun of, to critique 554 00:31:48.960 --> 00:31:52.920 works other works. Those clearly have very very strong First 555 00:31:52.960 --> 00:31:57.400 Amendment interests at state because if

you don't love people 556 00:31:57.440 --> 00:32:02.160 to parody or too big political or other critique of workout. 557 00:32:01.720 --> 00:32:04.519 There, you are really limiting. 558 00:32:04.319 --> 00:32:09.160 Their First Amendment right very very severely, and that one 559 00:32:09.160 --> 00:32:13.759 could argue, I think that's something very at copying of 560 00:32:13.839 --> 00:32:17.200 code or something or thousands of lines of code, which 561 00:32:17.279 --> 00:32:21.400 is very does doesn't rise to the sort of involve 562 00:32:21.480 --> 00:32:25.880 the same First Amendment position. 563 00:32:26.079 --> 00:32:27.759 And then of course the air the question. 564 00:32:27.839 --> 00:32:30.440 I'm not going to say anything more about, you know, 565 00:32:30.480 --> 00:32:34.920 the copying used in training, but clearly, I mean, yeah, 566 00:32:35.000 --> 00:32:38.640 fair use clearly has some strong First Amendment implications that 567 00:32:38.720 --> 00:32:41.039 you should be careful how those are bounded. 568 00:32:42.599 --> 00:32:45.240 Yeah, you know, I think that there's some great arguments 569 00:32:45.240 --> 00:32:48.640 going both ways. And Jane, and I'm you know, sympathetic 570 00:32:48.680 --> 00:32:51.119 to many of the points you made, and I think 571 00:32:51.160 --> 00:32:52.599 similar arguments have been made to. 572 00:32:52.480 --> 00:32:54.920 Defend you know, the rights of these companies to train 573 00:32:55.000 --> 00:32:56.319 their models and corporate works. 574 00:32:57.200 --> 00:32:59.039 But what I find that, you know, a lot of 575 00:32:59.039 --> 00:33:03.799 these augments do rest proposition, right, the proposition that these tools, 576 00:33:03.839 --> 00:33:08.960 because that's what they are, these machine tools, do we 577 00:33:09.039 --> 00:33:12.440 perhaps tend to anthropomorphize them a little too much? You know, 578 00:33:12.960 --> 00:33:18.240 the AI is hallucinating, the AI is learning, when I 579 00:33:18.240 --> 00:33:20.920 mean humans learned too, but in a very different way, right, 580 00:33:21.000 --> 00:33:24.759 I mean, in the recent cases that I'm winding their 581 00:33:24.759 --> 00:33:26.319 way through the quotes on the subject. 582 00:33:26.720 --> 00:33:28.599 I thought it was interesting when. 583 00:33:29.920 --> 00:33:32.440 You know, a lot of the focus seems to be 584 00:33:33.200 --> 00:33:36.519 on the replication of the work. Are you creating perhaps 585 00:33:36.559 --> 00:33:39.279 a database that can then be used of future training 586 00:33:39.319 --> 00:33:44.279 and have you given proper attribution for that purpose? I 587 00:33:44.279 --> 00:33:46.759 forget the name of the case, but that was one 588 00:33:46.799 --> 00:33:49.759 of the points made by the judge recently against Anthropic. 589 00:33:51.279 --> 00:33:54.160 But I want to move on to another notion that 590 00:33:54.680 --> 00:33:57.519 frequently pops up in these cases. You know, there's this 591 00:33:57.599 --> 00:34:01.480 huge debate on what is risen transformative. In a recent 592 00:34:01.519 --> 00:34:04.200 case where the judge ruled against the rights holders suing 593 00:34:04.200 --> 00:34:10.480 the AI company H they flagged this idea that market 594 00:34:10.480 --> 00:34:13.599 dilution is going to be a very significant consideration going forward. 595 00:34:13.920 --> 00:34:17.440 To what degree is allowing this use of corporate material 596 00:34:17.880 --> 00:34:20.440 or to dilute the market for those works. This is 597 00:34:20.480 --> 00:34:23.719 kind of an analogous point to the idea of monopsny power. 598 00:34:23.760 --> 00:34:26.599 Are we suppressing the value of future output and innovation, 599 00:34:27.039 --> 00:34:30.039 which is one of the ideas being having IP law. 600 00:34:31.519 --> 00:34:33.239 So the question, you know, for anyone who wants to 601 00:34:33.559 --> 00:34:37.000 jump in on it, are we seeing any evidence one 602 00:34:37.000 --> 00:34:39.519 way or the other that these AI tools are diluting 603 00:34:40.280 --> 00:34:44.360 the market for original ideas, you know, the production of 604 00:34:44.440 --> 00:34:47.119 I think what people derisively call slop. 605 00:34:51.039 --> 00:34:53.880 I mean, I don't know that you're asking an empirical question. 606 00:34:53.960 --> 00:34:56.840 I haven't kept up with. It's an interesting question. It's 607 00:34:56.880 --> 00:34:59.000 the right question, I guess. Is how I want to 608 00:34:59.039 --> 00:35:04.519 respond that it's it's taking seriously this idea that one 609 00:35:04.559 --> 00:35:06.199 of the core, maybe not the only, but one of 610 00:35:06.280 --> 00:35:09.639 the main missions of copyright and other IP laws is 611 00:35:10.280 --> 00:35:14.000 to make sure that the incentives for future generation are 612 00:35:14.119 --> 00:35:14.800 still there. 613 00:35:15.960 --> 00:35:16.639 And I could. 614 00:35:16.480 --> 00:35:18.679 Imagine I mean, I think, I think one reason I 615 00:35:18.679 --> 00:35:21.280 don't even want to speculate about what might be happening 616 00:35:21.320 --> 00:35:23.519 empirically is that I could see it going either way. 617 00:35:23.559 --> 00:35:28.360 I could see AI bringing just a wealth of new creators, 618 00:35:28.960 --> 00:35:31.480 you know, who now have this tool that allow them 619 00:35:31.519 --> 00:35:36.199 to kind of meet the maximum potential of their creativity. 620 00:35:36.599 --> 00:35:39.039 Or I could imagine the opposite that, you know, there's 621 00:35:39.599 --> 00:35:40.280 what's the point? 622 00:35:42.960 --> 00:35:46.039 Yeah, I think that's the key way to think about 623 00:35:46.079 --> 00:35:51.480 this is again, is you know, I get I recoil 624 00:35:51.559 --> 00:35:55.400 at the debate constantly about oh, whether is AI an 625 00:35:55.440 --> 00:35:57.960 author or AI an inventor? 626 00:35:58.320 --> 00:35:58.519 You know. 627 00:36:00.159

--> 00:36:02.400 That's the wrong question. You know, the answer is no, 628 00:36:02.760 --> 00:36:04.880 They're they're never it's never going to be an author, 629 00:36:04.920 --> 00:36:06.760 it's never going to be an inventor. You know, it 630 00:36:06.880 --> 00:36:10.000 always goes back to the closest human, the human that's 631 00:36:10.239 --> 00:36:11.239 utilizing the tool. 632 00:36:11.280 --> 00:36:13.800 As you mentioned, you know, they're always going. 633 00:36:13.599 --> 00:36:16.559 To be the inventor and the author, and you know, 634 00:36:16.719 --> 00:36:19.280 and that we should encourage that because that will embrace 635 00:36:19.360 --> 00:36:21.840 the utilization of these tools in a way that's sort 636 00:36:21.840 --> 00:36:24.719 of low risk. It's not going to eliminate their livelihood, 637 00:36:25.079 --> 00:36:27.519 you know, because that's a concern, right You're going to 638 00:36:27.599 --> 00:36:29.920 have you know, AI is going to go and generate 639 00:36:30.000 --> 00:36:32.360 all these you know, all these new novels that we 640 00:36:32.400 --> 00:36:35.400 won't ever have to read, you know, uh, you know, 641 00:36:36.239 --> 00:36:38.719 pick your favorite author anymore, because we'll have all this 642 00:36:38.800 --> 00:36:41.800 stuff available to us so cheaply and and. 643 00:36:41.639 --> 00:36:42.960 You know and ubiquitously. 644 00:36:43.599 --> 00:36:47.760 You know, you know that that's again if we we 645 00:36:47.840 --> 00:36:49.880 only get there if we think about it in the 646 00:36:49.920 --> 00:36:51.760 wrong way. In my view, if we bring it back 647 00:36:51.800 --> 00:36:55.079 to there's always a human. They're the key, they're utilizing 648 00:36:55.079 --> 00:36:58.760 the tool. We'll get we'll get more and better works, 649 00:36:58.800 --> 00:37:02.000 we'll get more and better inventions. But you know, at 650 00:37:02.039 --> 00:37:05.239 the same time, we're not going to again disincentivize or 651 00:37:05.280 --> 00:37:08.400 eliminate the livelihoods of innovators that we rely on. 652 00:37:08.480 --> 00:37:11.800 America was built on innovators. We must be respectful. 653 00:37:12.079 --> 00:37:15.440 We must provide an environment where they can grow and 654 00:37:15.599 --> 00:37:18.880 prosper and you know, be fruitful and multiply that that's 655 00:37:18.920 --> 00:37:22.440 what we want. It's essential for national security, for economic security, 656 00:37:22.719 --> 00:37:23.840 or everything that we do. 657 00:37:24.079 --> 00:37:27.119 So we have to think about this stuff the right way. 658 00:37:27.159 --> 00:37:30.679 And thinking about ever that an AI can by itself 659 00:37:30.719 --> 00:37:32.960 be an author or an inventor, in my view, is 660 00:37:33.000 --> 00:37:34.880 absurd and problematic. 661 00:37:35.760 --> 00:37:39.119 Yeah, I think you know, judges, those are excellent points. 662 00:37:39.159 --> 00:37:44.039 Everyone's spaking. Judges can intelligent judges can part suit a 663 00:37:44.119 --> 00:37:47.559 copyright law. One can argue about what amendments and and 664 00:37:47.800 --> 00:37:51.880 and come to some intelligent decisions. I think thinking bartsby 665 00:37:51.920 --> 00:37:56.840 anthropic we're a judge. Also in the Northern Industrict of California, 666 00:37:56.920 --> 00:38:01.239 how using books to train Claude was exceedingly transformative in 667 00:38:01.320 --> 00:38:04.000 fair use Y. 668 00:38:04.280 --> 00:38:06.679 It had usefully. 669 00:38:07.880 --> 00:38:12.480 Scandy lawfully purchased books into a digital internal library which 670 00:38:12.559 --> 00:38:16.280 was not multiplied or redistributed, but it was It did 671 00:38:16.360 --> 00:38:23.239 inform the development of claud. However, the courts separated that 672 00:38:23.880 --> 00:38:28.880 from the acquisition and retention of books. For instance, it's 673 00:38:28.960 --> 00:38:33.320 creation of permanent library from pirated copies, and was not 674 00:38:33.480 --> 00:38:36.960 fair use. The course stata there is no AI company 675 00:38:37.000 --> 00:38:40.119 carved out from the Copyright Act and set the pirated 676 00:38:40.199 --> 00:38:44.039 coffee issue for trial on damages, So you know, you 677 00:38:44.039 --> 00:38:46.400 could read that as well. Training may be fair use 678 00:38:46.440 --> 00:38:52.000 when the model does not create output infringing copies, but 679 00:38:52.159 --> 00:38:57.920 stealing or retaining pirated source copies is a separate infringement problem. 680 00:38:57.920 --> 00:38:58.840 It is infringement. 681 00:38:59.039 --> 00:39:01.800 So I'm not saying he necessarily got it right on 682 00:39:02.159 --> 00:39:07.440 the first one. But the courts can settle, can go 683 00:39:07.519 --> 00:39:10.920 through this, and of course original eventually some of these 684 00:39:10.960 --> 00:39:13.800 issues are going to get to the Supreme Court perhaps, 685 00:39:13.840 --> 00:39:16.239 and I know Jeff from what Jeff has said, and 686 00:39:16.320 --> 00:39:17.199 I also. 687 00:39:18.400 --> 00:39:19.679 Might have all the concern you know. 688 00:39:21.119 --> 00:39:23.400 The problem is the Supreme Court has not been very 689 00:39:23.880 --> 00:39:26.559 great on property rights in general. We haven't talked about 690 00:39:26.599 --> 00:39:31.400 patent but I think the Supreme Court shockingly has ignored 691 00:39:31.400 --> 00:39:34.119 the plane statutory language of Section one on one of 692 00:39:34.159 --> 00:39:38.920 the Patent Act to find that certain certain highly novel 693 00:39:38.960 --> 00:39:43.119 inventions were not patentable, and it just made absolutely no sense. 694 00:39:43.199 --> 00:39:47.159 But there we are, so sometimes Congress does have to 695 00:39:47.199 --> 00:39:49.400 step in and hear things up. 696 00:39:50.920 --> 00:39:53.679 Thanks goes, great points, and you know, I do want 697 00:39:53.719 --> 00:39:56.360 to move

on to patents in a second, but before 698 00:39:56.360 --> 00:39:58.760 I do that, I want to quickly get a response 699 00:39:58.760 --> 00:40:02.840 from this question. So the National AI Framework has recently 700 00:40:02.840 --> 00:40:05.599 been put out by the Trump administration. Obviously the goal 701 00:40:05.719 --> 00:40:09.320 is to encourage American innovation and give American companies an 702 00:40:09.360 --> 00:40:12.320 edge in the AI race. One of the things they've 703 00:40:12.719 --> 00:40:16.920 quite diplomatically tried to do is sidestep these debates about 704 00:40:16.960 --> 00:40:19.559 the fair use question and say we'll leave that answer 705 00:40:19.679 --> 00:40:20.400 to the courts. 706 00:40:20.639 --> 00:40:23.079 That plans right now to amend the corporate law. 707 00:40:23.840 --> 00:40:25.679 So my question with a panel would be, what if 708 00:40:25.679 --> 00:40:30.199 any amendments should we make to the copyright law in 709 00:40:30.320 --> 00:40:33.599 order to address these sorts of issues are being brought up, 710 00:40:33.599 --> 00:40:35.280 Because because Jeff, you know, to your point, I do 711 00:40:35.360 --> 00:40:38.079 think while the economic question can be a little bit 712 00:40:38.159 --> 00:40:40.360 murky and based on evidence that might not exist yet 713 00:40:40.679 --> 00:40:42.880 and hard to argue in each separate case, I think 714 00:40:42.920 --> 00:40:45.239 the normative or moral case is probably going to be 715 00:40:45.320 --> 00:40:47.920 what dictates any future reform in this area. 716 00:40:49.119 --> 00:40:51.880 But yeah, what amendments you know, you guys make? 717 00:40:52.280 --> 00:40:53.840 I mean, I got it, you know, I think the 718 00:40:53.880 --> 00:40:57.239 bigger question is, you know, I'm I believe, you know, 719 00:40:57.320 --> 00:41:01.559 the democratic process should should play out here. But Congress 720 00:41:02.119 --> 00:41:07.719 must set simple categorical rules, whatever they are, that is 721 00:41:07.800 --> 00:41:11.400 most important. My personal view is that it should be 722 00:41:11.480 --> 00:41:13.280 you know, the you know, in a particular case that 723 00:41:13.320 --> 00:41:16.960 we've been discussing here, that it should be defined as infringement. 724 00:41:17.239 --> 00:41:18.960 It should be infringement to. 725 00:41:19.079 --> 00:41:23.599 Utilize copyrighted works to train large language models without compensation. 726 00:41:23.840 --> 00:41:26.559 In my view, but again, I don't get to make 727 00:41:26.559 --> 00:41:27.159 that decision. 728 00:41:27.199 --> 00:41:29.960 I'm comfortable letting the But I think the more important 729 00:41:30.880 --> 00:41:34.079 from a political economy, you know, from a again, from 730 00:41:34.119 --> 00:41:37.760 a property rights perspective what have you, is we just 731 00:41:37.920 --> 00:41:44.280 need simple categorical rules because leaving it murky, leaving it 732 00:41:44.360 --> 00:41:47.199 complicated up to the courts, as we've discussed here and 733 00:41:47.480 --> 00:41:49.840 post the copyright as all you know talked about in 734 00:41:49.840 --> 00:41:51.079 the patent space, leaving it to. 735 00:41:51.039 --> 00:41:53.199 The courts is a disaster. 736 00:41:53.719 --> 00:41:57.840 And all we do is just you know, increase litigation 737 00:41:58.519 --> 00:42:02.360 and mix create confu usion, and and and and again. 738 00:42:02.519 --> 00:42:05.599 You know, again, like running home to my belief in 739 00:42:06.000 --> 00:42:09.840 the process of innovation, of the discovery process that is 740 00:42:10.000 --> 00:42:12.360 in the subjectivity. There is the core of austern economics. 741 00:42:12.400 --> 00:42:15.880 If we do that, the parties will adapt. We need 742 00:42:15.920 --> 00:42:20.719 that to believe and understand that that will happen if 743 00:42:20.760 --> 00:42:25.119 we just have the sort of institutional courage to follow 744 00:42:25.199 --> 00:42:29.320 the constitution, follow separation of powers, set the rules and 745 00:42:29.360 --> 00:42:32.239 then get out of the way and let the market drive, 746 00:42:32.800 --> 00:42:37.599 you know, uh, the adoption, the adaptation, and and. 747 00:42:37.199 --> 00:42:39.199 And the country will be better off for it. 748 00:42:39.119 --> 00:42:46.000 In my view, No, I I I really can't disigree 749 00:42:46.079 --> 00:42:50.039 with Jeff. I think particularly the pattern area, uh, that 750 00:42:50.039 --> 00:42:54.800 that's important. And you know, maybe some clear language on 751 00:42:54.800 --> 00:42:59.280 on what is fair use, let's say, conveying certain things 752 00:42:59.320 --> 00:43:03.440 that you know, very very clear categories perhaps could it 753 00:43:03.440 --> 00:43:06.920 could be helpful. I think the problem that patents is 754 00:43:06.960 --> 00:43:10.199 even most important because there's a huge amount of innovation 755 00:43:11.360 --> 00:43:17.039 driven by patents. But there are seeing medical diagnostics for example, 756 00:43:17.079 --> 00:43:19.400 or patentable in China and Germany. 757 00:43:19.880 --> 00:43:22.239 But because the court has taken had. 758 00:43:22.119 --> 00:43:28.519 Some weird interpretations about you know what our abstract ideas well. 759 00:43:28.599 --> 00:43:32.280 These are just app applying to that and a few 760 00:43:32.280 --> 00:43:37.639 other important areas you've lost. Some foreign investors have gone 761 00:43:37.639 --> 00:43:40.960 to China to do work on medical diagnostics because it's 762 00:43:41.000 --> 00:43:44.880 always too complicated and risky to try and get patents, 763 00:43:44.960 --> 00:43:49.280 defensible patents in the US. That's a terrible situation of beings. 764 00:43:49.840 --> 00:43:52.760 And unfortunately, you know, the public choice people would say, 765 00:43:52.800 --> 00:43:56.119 you've got rent seeking collisions, You've got the people who 766

00:43:56.119 --> 00:43:59.519 were using this property, we're all having to go through 767 00:43:59.559 --> 00:44:02.519 license and so on. Are going to law be against that. 768 00:44:02.719 --> 00:44:05.920 But this is very very important, I think in terms 769 00:44:05.920 --> 00:44:09.079 of international innovation and for the role of the US. 770 00:44:09.519 --> 00:44:12.400 The patent law gets straightened out by Congress. 771 00:44:14.639 --> 00:44:16.920 So you know, with regard to that, right, one of 772 00:44:16.960 --> 00:44:20.480 the debates we're having right now is around subject matter eligibility. 773 00:44:21.559 --> 00:44:24.840 Now it's rare to find a quote that has said 774 00:44:25.039 --> 00:44:28.079 blanket you know, you cannot patent this technology or that 775 00:44:28.159 --> 00:44:31.400 technology or this innovation of that innovation. Rather they will 776 00:44:31.400 --> 00:44:32.880 do it in case by case space. Is that in 777 00:44:32.920 --> 00:44:37.679 effect makes it very difficult to patent certain things. So 778 00:44:37.719 --> 00:44:40.599 for example, it is possible but difficult to patent the 779 00:44:40.639 --> 00:44:45.360 business method. It is really very difficult to patent from 780 00:44:45.400 --> 00:44:47.840 what I've read, a medical diagnostic tool. 781 00:44:49.199 --> 00:44:52.239 So the question is if we do expand this subject. 782 00:44:51.840 --> 00:44:57.920 Matter eligibility perhaps through statute, would there be any negative 783 00:44:58.000 --> 00:45:01.280 law on implications in terms of holding off innovation. 784 00:45:04.679 --> 00:45:06.719 In my view, know it would it would greatly. It 785 00:45:06.719 --> 00:45:08.320 would be you know, it would be pulled. 786 00:45:08.199 --> 00:45:12.679 Pouring gasoline on the Jackson, gasoline into the innovation engine. 787 00:45:12.719 --> 00:45:12.880 You know. 788 00:45:13.239 --> 00:45:17.280 Again the subject matter eligibility issue is the poster child 789 00:45:17.320 --> 00:45:20.559 for courts meddling where they have no business meddling, and 790 00:45:20.599 --> 00:45:24.639 the problems that is created are directly result of again violation. 791 00:45:24.760 --> 00:45:27.519 In my view of the separation of powers, Congress has 792 00:45:27.559 --> 00:45:30.000 plenary power assets the rules for patenting. They did it 793 00:45:30.039 --> 00:45:33.039 with a simple categorical rule in the text of section 794 00:45:33.119 --> 00:45:35.840 one oh one. And here come the courts say, well, 795 00:45:35.840 --> 00:45:38.880 wait a minute, you know, those four satutory categories, we 796 00:45:39.239 --> 00:45:41.400 we're gonna you know, we have to have some exceptions 797 00:45:41.400 --> 00:45:44.119 to that, and look at what that mess has created. 798 00:45:44.480 --> 00:45:47.199 And so you know, so we you know by you know, 799 00:45:47.239 --> 00:45:50.360 so we you know, you know by statute, the statutory 800 00:45:50.480 --> 00:45:52.119 change that my view will be right would be to 801 00:45:52.199 --> 00:45:56.239 eliminate abrogate all those judicial exceptions and just go back 802 00:45:56.239 --> 00:46:00.920 to the statute as written. Everybody can understand that, you know, uh, 803 00:46:01.239 --> 00:46:04.159 I've suggested you know in the meanwhile to to the 804 00:46:04.320 --> 00:46:08.639 you know, does the Federal Society Conference in November to 805 00:46:08.679 --> 00:46:11.280 the Director of the Patent Office. You know, given this 806 00:46:11.880 --> 00:46:16.119 clear violation separation powers where the judiciary is writing patent 807 00:46:16.199 --> 00:46:19.159 law in subject matter elibility context, you know, have you 808 00:46:19.280 --> 00:46:22.760 considered taking their opinions of the advisory Okay, thank you, 809 00:46:22.840 --> 00:46:24.920 We'll look at that. But you know, at the end 810 00:46:24.920 --> 00:46:26.840 of the day, we're going to interpret the you know, 811 00:46:26.880 --> 00:46:30.159 we can interpret. We're article to agency. We can you know, 812 00:46:30.480 --> 00:46:34.760 we can interpret that statute, and we appreciate your opinion, 813 00:46:34.760 --> 00:46:36.920 but we'll make the cause of whether to cancel the 814 00:46:36.920 --> 00:46:39.159 pattern or not. You know, this is the kind of 815 00:46:39.159 --> 00:46:41.760 thing that we you know again that you know, we 816 00:46:41.920 --> 00:46:45.159 you know, it just illustrates again, you know, the problems 817 00:46:45.159 --> 00:46:49.760 that are created when courts go outside their lane and 818 00:46:50.400 --> 00:46:52.840 start to again violate separation powers. 819 00:46:52.880 --> 00:46:56.199 In my view, can I maybe our way in to, 820 00:46:56.639 --> 00:46:59.639 you know, try to find a little bit of separation 821 00:46:59.760 --> 00:47:04.440 or diversy between us. I so I'm highly sympathetic to 822 00:47:04.519 --> 00:47:06.559 some of the examples that have come out, like the 823 00:47:06.920 --> 00:47:13.559 medical diagnosis devices for example, and I mentioned new news 824 00:47:13.599 --> 00:47:16.920 gathering earlier, like there are certain types of even raw 825 00:47:16.960 --> 00:47:20.159 information that today isn't even copyrightable, that I think we 826 00:47:20.239 --> 00:47:24.920 have a serious incentive problem. But my concern is that, 827 00:47:25.880 --> 00:47:27.840 you know, what those things have in common is that 828 00:47:27.960 --> 00:47:33.039 it's surfacing information that's hard to extract otherwise it takes 829 00:47:33.079 --> 00:47:38.199 effort or ingenuity, and it's highly useful. And so then 830 00:47:38.239 --> 00:47:40.440 the you know, then then the problem of free writing 831 00:47:40.639 --> 00:47:43.639 is right there, and and so I think we all 832 00:47:43.639 --> 00:47:46.159 are interested in solving that. But on the other side, 833 00:47:46.159 --> 00:47:48.639 when I think about who would be

lobbying Congress for 834 00:47:48.800 --> 00:47:53.079 these changes, it's you know, it's going to be you know, 835 00:47:53.119 --> 00:47:55.599 if I think about what the RIAA does, it's like, 836 00:47:56.199 --> 00:47:59.599 do we really need more incentive for people to become 837 00:47:59.679 --> 00:48:01.519 select bridies and recording artists? 838 00:48:01.599 --> 00:48:02.880 I actually don't think we do. 839 00:48:03.000 --> 00:48:05.679 And perhaps, you know, maybe Jeff and I can compromise 840 00:48:05.719 --> 00:48:09.159 where maybe if the terms of copyright are changed or 841 00:48:09.440 --> 00:48:13.679 you know, modified to uh TO kind of fit in 842 00:48:13.880 --> 00:48:18.880 categorical terms, how how much other sort of psychic rewards 843 00:48:18.920 --> 00:48:22.159 or how much other incentive there is for people to produce? 844 00:48:22.559 --> 00:48:24.199 You know, maybe I maybe. 845 00:48:24.039 --> 00:48:25.559 It would make sense, I think to. 846 00:48:27.159 --> 00:48:31.360 Uh TO to expand uh to expand rights. But but 847 00:48:31.400 --> 00:48:33.800 I do worry a bit, being in political economy, about 848 00:48:33.800 --> 00:48:37.920 who exactly is going to be there ready to get 849 00:48:37.960 --> 00:48:40.239 their their sort of favored terms. 850 00:48:42.880 --> 00:48:46.800 Yeah, that's interesting, right, because I mean, leaving aside, you know, 851 00:48:46.840 --> 00:48:50.639 I think the moral question of compensating people for their 852 00:48:50.719 --> 00:48:54.920 effort and for their creativity. To me, it seems like 853 00:48:54.960 --> 00:48:58.800 if an AI tool can ingest the sum total of 854 00:48:58.840 --> 00:49:03.000 your works and produce something generic that replicates them in 855 00:49:03.039 --> 00:49:06.239 a way that's as good as something you yourself will continue 856 00:49:06.239 --> 00:49:08.239 to put out, that's probably a sign that you, as 857 00:49:08.239 --> 00:49:11.679 an artists need to do something different, something more, or 858 00:49:12.440 --> 00:49:15.119 you know, perhaps your art or your style happens to 859 00:49:15.119 --> 00:49:18.920 be a particularly generic one. And that being said, for 860 00:49:18.960 --> 00:49:20.559 all the talk about eyeslope, I do think there's a 861 00:49:20.599 --> 00:49:21.760 lot of human slope out there. 862 00:49:21.840 --> 00:49:23.800 You know, mumble prap is an example. 863 00:49:23.840 --> 00:49:25.519 But I mean that's just you know, I'm biased on 864 00:49:25.639 --> 00:49:29.519 this topic, so you know, I do think that there 865 00:49:29.599 --> 00:49:32.639 is an argument, least in the economics aside, leaving aside 866 00:49:32.639 --> 00:49:35.119 of the question of compensation for the use of IP, 867 00:49:36.639 --> 00:49:39.880 that these tools will little long run perhaps encourage more 868 00:49:39.920 --> 00:49:44.199 creativity because you now know what the generic version of 869 00:49:44.199 --> 00:49:46.880 something sounds like, and that makes it easier to get 870 00:49:46.880 --> 00:49:48.440 to Okay, what's innovative, what's new? 871 00:49:48.719 --> 00:49:52.000 What's next? What can I add in total? Now exists? 872 00:49:53.639 --> 00:49:57.199 All right, So we move on to audience questions. There 873 00:49:57.320 --> 00:50:01.039 some interesting questions here. So the opinion. 874 00:50:01.400 --> 00:50:04.880 The opinion sauto move the court away from a purely 875 00:50:04.880 --> 00:50:05.760 commercial focus. 876 00:50:06.519 --> 00:50:07.679 Uh, this is a question. 877 00:50:07.519 --> 00:50:10.679 From doctor Jack David Gulub move the quurte away from 878 00:50:10.679 --> 00:50:13.679 a purely commercial focus towards determining if a new work 879 00:50:14.000 --> 00:50:16.679 supersedes the original creates something of value for the public. 880 00:50:17.599 --> 00:50:20.719 Is this not analogous to the patent law embodying the 881 00:50:20.760 --> 00:50:22.480 novelty doctrine. 882 00:50:29.440 --> 00:50:31.360 We've really jumped in of anyone as well? 883 00:50:33.480 --> 00:50:39.559 Really analogous to the pad law. I guess I'm just 884 00:50:39.599 --> 00:50:43.519 not exactly seeing what the specific analogy here. Maybe I 885 00:50:43.599 --> 00:50:45.320 missed miss that, but. 886 00:50:47.599 --> 00:50:57.920 I mean, okay, it's creating a new market basically because 887 00:50:57.960 --> 00:51:01.519 it's doing something that goes beyond maybe embedding, but goes. 888 00:51:01.320 --> 00:51:02.960 Beyond Is that I don't know. 889 00:51:04.559 --> 00:51:07.440 I don't know enough about patent laws, So trying to 890 00:51:07.480 --> 00:51:11.480 help translate, was the question about. 891 00:51:11.400 --> 00:51:14.119 Creating a new work that is, you know, sort of 892 00:51:16.079 --> 00:51:18.719 sufficiently different than the previous work? Kind of like, is 893 00:51:18.760 --> 00:51:20.440 it the analogy to obviousness? 894 00:51:20.480 --> 00:51:20.679 Is that? 895 00:51:20.760 --> 00:51:25.320 Is that what I'm understanding. I mean, you have the 896 00:51:25.440 --> 00:51:33.159 substantially similar doctrine in copyright right before you can before 897 00:51:33.199 --> 00:51:35.119 you can infringe. 898 00:51:35.440 --> 00:51:39.280 I guess that's something to think about it in that context. 899 00:51:40.400 --> 00:51:43.639 But you know, but you know, I don't know. 900 00:51:43.760 --> 00:51:47.880 In in copyright right, it's it's about the expression, So 901 00:51:48.840 --> 00:51:51.199 you know, express the idea in a different way. 902 00:51:51.480 --> 00:51:53.760 That's a different work, you know, and it's intimes. 903 00:51:53.840 --> 00:51:56.360 Do you think derivative work the concept of derivative works 904 00:51:56.440 --> 00:51:59.719 might be too broad if we compare how patent law 905 00:52:00.440 --> 00:52:03.199 maybe that's kind of the essence of the question. If 906 00:52:03.199 --> 00:52:06.559 we compare

how patent law deals with new kind of 907 00:52:06.599 --> 00:52:09.840 add ons, does that imply that maybe derivative works the 908 00:52:09.840 --> 00:52:11.360 scope of derivative works is too broad? 909 00:52:12.480 --> 00:52:14.760 Well, yeah, I mean clearly is are right you have 910 00:52:14.840 --> 00:52:16.679 a right to as a cover in order to can 911 00:52:16.800 --> 00:52:22.599 come up with derivative works in patents there it's somewhat different. 912 00:52:22.639 --> 00:52:25.320 People can use the big thing of a panel, they 913 00:52:25.360 --> 00:52:29.440 can use the information, the public can use the information disclosed. 914 00:52:29.480 --> 00:52:32.400 That is one of the arguments as to why patents 915 00:52:32.480 --> 00:52:36.320 maybe social superior, socially superior to trade secrets. They allow 916 00:52:36.400 --> 00:52:41.039 that information out there. But you just but and people 917 00:52:41.039 --> 00:52:43.320 are allowed to use that information to come out and say, well, 918 00:52:43.360 --> 00:52:45.440 their own patents, which are. 919 00:52:45.559 --> 00:52:46.760 But they have to be novel. 920 00:52:48.079 --> 00:52:51.079 They have to be you know, not based on substantially 921 00:52:51.119 --> 00:52:52.159 based on priority. 922 00:52:52.239 --> 00:52:54.880 You have to go beyond that. So you have to 923 00:52:54.880 --> 00:52:56.280 show your own form. 924 00:52:56.199 --> 00:53:00.719 Of novelty and maybe able to get your own patterns. 925 00:53:00.760 --> 00:53:02.159 Is a pattern of holder. 926 00:53:01.920 --> 00:53:04.679 May not an irrivative work, but they have a follow 927 00:53:04.719 --> 00:53:08.679 on patent that that has to meet these conditions of 928 00:53:08.760 --> 00:53:12.280 patent of building. Say the way you change a DOUG 929 00:53:12.360 --> 00:53:16.000 drug may be chemical chemically injected. If it's obvious you 930 00:53:16.039 --> 00:53:18.159 can't do that, but you may be able to come 931 00:53:18.239 --> 00:53:21.559 up with some changes that allow you for new patents. 932 00:53:21.599 --> 00:53:23.760 So again there yet there's sort of it in an 933 00:53:23.760 --> 00:53:26.920 analogy based not it doesn't really work to quote the 934 00:53:26.920 --> 00:53:29.000 same way as it works because of the. 935 00:53:30.559 --> 00:53:34.880 Two statutory schemes are fairly different. Cool. 936 00:53:36.239 --> 00:53:39.199 We have a question on corporate terms. Any opinion on 937 00:53:39.239 --> 00:53:43.159 whether corporate terms are too long? Isn't it limited a 938 00:53:43.280 --> 00:53:46.400 time properly determined as a portion of human life? Otherwise, 939 00:53:46.400 --> 00:53:48.519 if there is no quid pro quo, a busn't the 940 00:53:48.599 --> 00:53:51.000 twenties today will never see fair use of corporated materials 941 00:53:51.039 --> 00:53:53.960 they spend money on in theory, but in theory, by 942 00:53:54.000 --> 00:53:56.440 the time someone in the twenties today should see fair 943 00:53:56.519 --> 00:53:58.960 use of today's data by time they are fifty. 944 00:54:00.360 --> 00:54:02.119 I want to I want to explain the question a 945 00:54:02.159 --> 00:54:02.599 little bit. 946 00:54:04.239 --> 00:54:09.159 Does thoughts on the current duration for corporate terms as 947 00:54:09.159 --> 00:54:09.679 well as. 948 00:54:09.599 --> 00:54:16.039 Patent Well, again, you know, they're they're they're currently simple 949 00:54:16.039 --> 00:54:18.760 and categorical. We know what they are, you know, and 950 00:54:18.800 --> 00:54:21.199 they've been a little bit muddled in the patent space. 951 00:54:21.559 --> 00:54:25.000 It's you know, things you know, with extensions and adjustments 952 00:54:25.039 --> 00:54:29.440 and obviously the type of double patenting which again mostly 953 00:54:30.039 --> 00:54:33.159 judge made meddling that have caused those problems. 954 00:54:34.320 --> 00:54:37.480 But again, you know, I get back to that. 955 00:54:37.559 --> 00:54:40.559 You know, as long as they're simple and categorical, Uh, 956 00:54:40.599 --> 00:54:43.039 you know, I can live with whatever they are. The 957 00:54:43.079 --> 00:54:46.599 market process, the market will adapt based on whatever we 958 00:54:46.760 --> 00:54:50.039 decide as a you know, as a body politic that 959 00:54:50.079 --> 00:54:50.679 they should be. 960 00:54:50.760 --> 00:54:51.840 But that that's the key. 961 00:54:51.960 --> 00:54:55.039 Don't complicate them, don't have a bunch of exceptions, don't 962 00:54:55.039 --> 00:54:59.000 have you know, uh, different different terms for different kinds 963 00:54:59.039 --> 00:55:02.159 of works, you know, or but again again or if 964 00:55:02.159 --> 00:55:04.400 you do again, have to be very clear and very straightforward. 965 00:55:05.079 --> 00:55:08.800 Yeah, the Supreme Court did address the issues there'd be 966 00:55:08.840 --> 00:55:10.480 something too long of a term. 967 00:55:10.719 --> 00:55:13.000 It was an infamous Mickey Mouse case. 968 00:55:13.519 --> 00:55:16.320 I think Disney had lobby to get an extension where 969 00:55:16.360 --> 00:55:19.920 with seventy years seventy five years beyond the term of death, 970 00:55:20.039 --> 00:55:23.599 because they wanted to preserve copyrights for some early Mickey 971 00:55:23.599 --> 00:55:25.719 Mouse cartoons and copyrighting. 972 00:55:25.800 --> 00:55:28.519 Yeah, they went around the market with that one. They 973 00:55:28.599 --> 00:55:30.280 went around the market. 974 00:55:29.679 --> 00:55:31.320 Because it was a matter of a blobbing. 975 00:55:31.320 --> 00:55:38.280 But the court basically didn't say did not say, oh. 976 00:55:36.519 --> 00:55:39.920 We can tell that this is it's no longer limited. 977 00:55:39.920 --> 00:55:42.639 Now if you had a thousand year term or ten 978 00:55:42.679 --> 00:55:46.760 thousand year tear, that might be. But they correctly if 979 00:55:46.760 --> 00:55:49.719 i'm long

tam, was it seventy five or was that 980 00:55:49.719 --> 00:55:54.480 the magic amount? Of court refused to opine and suggest 981 00:55:54.519 --> 00:55:56.239 that that was not limited. 982 00:55:57.679 --> 00:56:04.920 Right, So there's a question about how much of a 983 00:56:05.000 --> 00:56:09.360 human contribution to create a work should enable the use 984 00:56:09.400 --> 00:56:11.800 of an AI tool to be named as an author 985 00:56:11.840 --> 00:56:14.760 of something original. And on the patent side, will the 986 00:56:14.840 --> 00:56:19.519 test be quote substantial contribution under the new case or 987 00:56:19.599 --> 00:56:22.400 a conception of all claimed limitations under the same case. 988 00:56:23.039 --> 00:56:25.880 It appears in many cases no human will satisfy the criteria, 989 00:56:26.400 --> 00:56:28.599 and thus the property right will be invalidated as not 990 00:56:28.679 --> 00:56:29.800 being the product of a human. 991 00:56:31.320 --> 00:56:36.079 That's I mean, I remarked on this during the PAN 992 00:56:36.360 --> 00:56:38.519 I think this is the wrong way to think about it. 993 00:56:39.039 --> 00:56:43.159 You know that we need to sort of define state 994 00:56:43.480 --> 00:56:47.000 unequivocally that you know, AI. 995 00:56:46.800 --> 00:56:49.880 Tools cannot be on their own authors and inventors. They 996 00:56:49.920 --> 00:56:50.960 are always tools. 997 00:56:51.000 --> 00:56:53.480 There's always a human and you just have to find 998 00:56:53.559 --> 00:56:57.239 that human and make them him or her the author 999 00:56:57.519 --> 00:57:02.440 or the inventor. And then this debate goes away and 1000 00:57:02.880 --> 00:57:09.440 we you know, energize innovation because we are allowing the 1001 00:57:09.840 --> 00:57:13.079 tools that we have available us to be used in 1002 00:57:13.159 --> 00:57:16.880 their most effective and their maximized way, just like you know, 1003 00:57:16.880 --> 00:57:20.199 when we invented you know, different laboratory equipment or other 1004 00:57:20.239 --> 00:57:23.679 things to help the discovery of new pharmaceuticals, or you know, 1005 00:57:23.719 --> 00:57:26.760 we invented the personal computer to help authors, you know, 1006 00:57:27.320 --> 00:57:29.679 put their put their work on paper. You know, these 1007 00:57:29.800 --> 00:57:33.199 kinds of things, you know, are again their tools to 1008 00:57:33.440 --> 00:57:37.760 drive to assist the human innovator. And that's the way 1009 00:57:37.800 --> 00:57:39.639 it needs to be thought about. We should not be 1010 00:57:39.719 --> 00:57:42.079 debating and say, you know, if you just say no 1011 00:57:42.199 --> 00:57:44.239 that this is not going to happen. We're not going 1012 00:57:44.280 --> 00:57:46.119 to do this. This is not possible. It's now we 1013 00:57:46.159 --> 00:57:50.199 think of it. It's always the human and the AI 1014 00:57:50.679 --> 00:57:51.280 is the tool. 1015 00:57:52.199 --> 00:57:52.480 Jeff. 1016 00:57:52.480 --> 00:57:55.800 Do you think though, that there might be some instances 1017 00:57:55.840 --> 00:58:01.840 where the human contributions are so difi to diffuse or 1018 00:58:01.880 --> 00:58:05.239 indirect that we should just treat it, treat the output 1019 00:58:05.480 --> 00:58:07.639 as immediately within the public domain. 1020 00:58:07.719 --> 00:58:10.360 So I'm thinking about there are some like there. 1021 00:58:10.199 --> 00:58:14.199 Are some uh I don't know, like hacker groups that 1022 00:58:14.320 --> 00:58:16.920 right now that are using AI to just generate a 1023 00:58:16.960 --> 00:58:22.159 whole bunch of you know, patent ideas or copyrightable you 1024 00:58:22.199 --> 00:58:25.000 know expression and and they're not you know, using them, 1025 00:58:25.039 --> 00:58:27.719 They just are are creating these giant bodies. 1026 00:58:28.960 --> 00:58:29.360 Uh. 1027 00:58:30.639 --> 00:58:34.199 So you know, if if something's automated enough, do you 1028 00:58:34.280 --> 00:58:37.559 think that maybe we should recognize no author and no inventor. 1029 00:58:39.760 --> 00:58:42.519 Well, you know, yeah, there's always you know, an issue 1030 00:58:42.519 --> 00:58:45.199 of nefarious actors getting in and we you know, we 1031 00:58:45.239 --> 00:58:47.480 do worry about that in the patent space, about you know, 1032 00:58:47.920 --> 00:58:50.559 you know, generating a bunch of prior arts. You know, 1033 00:58:50.719 --> 00:58:53.960 I could undermine the ability to you know, to get inventions, 1034 00:58:54.280 --> 00:58:58.079 you know, uh patented. But but I think Uh, there's 1035 00:58:58.119 --> 00:59:01.400 a better way to deal with that, you know, aside 1036 00:59:01.440 --> 00:59:04.199 from you know, again claiming that the AI is the 1037 00:59:04.199 --> 00:59:06.559 author and then it's not eligible because I think we're 1038 00:59:06.599 --> 00:59:10.000 seeing where that leads to and it's just it's too messy. 1039 00:59:10.199 --> 00:59:13.960 There's better ways to handle uh, you know that that 1040 00:59:14.039 --> 00:59:17.679 kind of you know, sort of computer generated arts of 1041 00:59:17.679 --> 00:59:18.960 the examination process. 1042 00:59:19.519 --> 00:59:22.639 Uh, And that's that's kind of how I would address that. 1043 00:59:24.400 --> 00:59:26.239 All right, we're almost right at time. 1044 00:59:26.920 --> 00:59:28.599 Thank you all so much for what's been a really 1045 00:59:28.639 --> 00:59:32.039 read and insightful discussion, and yeah, looking forward to the 1046 00:59:32.039 --> 00:59:32.440 next one. 1047 00:59:34.239 --> 00:59:34.800 Wonderful. 1048 00:59:35.000 --> 00:59:38.119 Well, thank you all so much for presenting on today's 1049 00:59:38.119 --> 00:59:41.320 program for this suing your expertise and opinions on this 1050 00:59:41.360 --> 00:59:44.519 really important topic, and thank you to Satya for moderating. 1051 00:59:45.360 --> 00:59:47.679 If our audience is interested in learning more about all 1052 00:59:47.719 --> 00:59:50.320 of our programming here at the Federalist Society, please visit 1053 00:59:50.320 --> 00:59:53.239 our website that is f e D Associate dot org, 1054 00:59:53.559 --> 00:59:57.000 fed SALC fedsock dot org, or feel free to send 1055 00:59:57.079 --> 00:59:59.239 us your feedback. We always love to hear it at 1056 00:59:59.239 --> 01:00:01.840 fedsock at fedsoc dot org. 1057 01:00:02.119 --> 01:00:03.320 And with that we are JERD. 1058 01:00:03.559 --> 01:00:05.800 Thank you so much, Thank you for listening. 1059 01:00:05.840 --> 01:00:08.559 To this episode of fedsoc Forums, a podcast of the 1060 01:00:08.599 --> 01:00:12.599 Federal Societies Practice Groups. For more information about the Federal Society, 1061 01:00:12.800 --> 01:00:15.679 the practice groups, and to become a Federal Society member, 1062 01:00:15.719 --> 01:00:18.440 please visit our website at fedsoc dot org.