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美國版權局恢復「需努力取得」的版權：AI 產出權屬的挑戰

Copyright Office is restoring copyright to something you have to work to get

重點導讀

美國版權局重新確認，只有人類創作才可取得版權，AI 產出不具版權保護。

  • - 版權法核心：版權僅保護「人類創作」。
  • 「汗水」不等於版權，對於 AI 產出同樣適用。
正文


Today's links

  • Formalities: When it comes to AI, the Copyright Office is restoring copyright to its proper status, as something you have to work to get.
  • Hey look at this: Delights to delectate.
  • Object permanence: GWB x martial law; Li'l Sparky; Dueling Starbuckses; Microsoft buys Skype (does fuckery); Bieber v SOPA; SOPA is the worst; Snowden x rule of law; "Laserwriter II"; Russia v DST; Class war funnies; Minnesota's miracle; Icelandic women v sexism; Image analogies; Aussie DMCA ratfucked; "Authorised Domain"; Sales tax is regressive; Prince Charles's secret veto; Wells Fargo blackballed workers for refusing to crime; Poe read by Vincent Price and Basil Rathbone; Put it back!; The internet was made for privacy.
  • Upcoming appearances: Kilkenny, Courtenay, Vancouver, Folkestone, Oxford, Sheffield, Virtual, Oxford, Montreal.
  • Recent appearances: Where I've been.
  • Latest books: You keep readin' em, I'll keep writin' 'em.
  • Upcoming books: Like I said, I'll keep writin' 'em.
  • Colophon: All the rest.


A humanoid robot with blue skin pocked with transparent patches that show circuit boards beneath. Its eyes are yellow copyright symbols. It is admiring its reflection in a mirror supported by a gold robot. The reflection of the robot has red x's in its eyes instead of copyright symbols.

Formalities (permalink)

It's not often that I find myself on the same side as the US Copyright Office. In fact, I think this is the first time in 25 years that I've found myself cheering on the office's official actions as good for art and good for free expression, taking the side of creative workers over our bosses.

The source of our miraculous accord: the US Copyright Office's position on AI. The CO has taken the (entirely correct) position that copyright law exists to incentivize human acts of creative expression, which means that only works of human authorship are eligible for copyright.

This isn't a controversial position within legal circles. But for media executives, this is shocking; absurd, even. This gap between the industrial and the legal understanding of copyright comes from a fundamental difference over the evocatively named legal doctrine of "sweat of the brow."

"Sweat of the brow" is fundamental to a correct legal understanding of copyright. Copyright rewards and protects creativity but it does not protect hard work. You can labor for ten years over a phone book listing the numbers of every person in a town and (as a collection of uncopyrightable facts) it will receive no protection at all. Zero. Zilch. Anyone can copy and sell that phone book:

https://en.wikipedia.org/wiki/Feist_Publications,_Inc._v._Rural_Telephone_Service_Co.

Copyright law doesn't care if you slaved over that collection of facts, if you missed sleep and your kids' little league games to realize your grand vision. Copyright law doesn't care if you plowed every cent into it, remortgaging your home and cashing in your (already resentful) kids' college funds.

But: if you dash off a haiku in ten seconds while sitting on the toilet, shove it into your pocket and forget about it, and then your (still resentful) kids discover that crumpled haiku after your (highly suspicious) death, your kids will be able to claim a full 70 years' worth of copyright over that forgotten triviality (the term of copyright for works of human authorship is life plus 70 years).

This is the uncontroversial and universally accepted legal understanding of copyright: all the copyright in the world for creative acts, no copyright at all for mere acts of labor. The "sweat of the brow" has nothing to do with a work's eligibility for copyright.

But no media boss believes this. For media bosses, copyright is a pseudo-property† right, designed and operated to protect their bottom line. The point of copyright isn't to incentivize creativity, but rather investment.

† Or not-so-pseudo

There's obviously a relationship between creative acts and acts of investment, but it's possible to create without investment (see: your haiku) and it's possible to invest without creativity (see: your phone book).

And once again, the creativity that copyright protects is human creativity. This is a lesson that David Slater learned the hard way. Slater is a professional wildlife photographer and amateur monkey-trainer who combined his interests by teaching Celebes crested macaque monkeys to take selfies. But when Slater published a monkey's selfie others copied and distributed the image without his permission, on the (entirely legally correct) basis that monkeys are not humans, and that means that works created by monkeys don't get a copyright. This was also the Copyright Office's position, and the position of the Ninth Circuit Court of Appeals:

https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute

This is the basis for the US Copyright Office's repeated decision to refuse to extend copyright to AI-generated works. An algorithm is even less human than a monkey, so if you can't get copyright over a monkey selfie, you definitely can't copyright your chatbot's slop. The US Copyright Office has successfully defended this position in multiple courts, triumphing over plaintiffs who were so persistent that they even got the Supreme Court to weigh in on the issue (the Supremes decided the case didn't warrant their attention):

https://pluralistic.net/2026/03/03/its-a-trap-2/#inheres-at-the-moment-of-fixation

AI slop isn't copyrightable, but there can be copyrightable elements in an AI-generated image. The most obvious element is the prompt. So long as your prompt contains some quantum of creativity (e.g. "Make me a beautiful flower whose loveliness is reminiscent of a newborn baby", but not "make me a beautiful flower"), that prompt is copyrightable. That means you can use copyright to challenge others' rights to present the same prompt to a chatbot. But while the prompt can be copyrighted, the image it gives rise to isn't. So you can spend a month iteratively refining your prompt, consuming all your town's water along with 200,000 gallons of diesel and that prompt will be yours for your life plus 70 years, but the image it generates is in the public domain, and anyone can copy it, sell it or give it away.

There are other ways that copyright can find its way into AI-generated material. You can make creative edits to it: if you output a slop novel and rewrite various sentences (providing those rewrites involve some creativity and not just mechanical corrections or word substitutions), then the edited sentences become copyrighted works, even though all the rest of the text remains uncopyrightable.

You can also get a "thin" copyright through selection. If you get your chatbot to output many images based on your prompt and choose your favorite, your selection can confer a tiny bit of copyright over that creative act of selection, but it will be harder to defend than even the other (attenuated and highly specific) forms of copyright.

Now, perhaps you've spotted an administrative problem lurking in this turn of events. How can someone else know what part of a work is AI-generated (and thus in the public domain) and which parts are human-edited/contributed (and thus copyrighted)? Just as importantly, how can you prove which parts of your work are not AI-generated and thus eligible for copyright protection.

This gets especially gnarly when you're dealing with complex media. In an animation, an AI might do the rigging and movement for a human-created sprite. The sprite is copyrightable, but its movements aren't. That would mean that I could remap your sprite's movements onto a different sprite without infringing your copyright. Or say the sprite and its movements are human created (and thus copyrighted), but the backgrounds are procedurally generated? I could take those backgrounds and put new animations overtop of them.

The simplest, most reliable way to ensure the works you invest in are fully and entirely eligible for copyright is to just use humans for the whole project. Declare a "no-AI policy," and hire human artists to produce the works you hope to sell. Monitor their activity to ensure they're not using AI. Keep good records.

Now, as much as I like the idea that we've arrived at a copyright law that insists that a company can only get exclusive rights to its products by paying human artists to make them from end-to-end, I don't think that's likely to be the way it shakes out, but that doesn't mean that this is a wash for artists.

The reality is that copyright claims are always "fact-intensive inquiries" that are expensive to litigate and difficult to adjudicate. It's completely normal for copyright lawsuits to turn on documentary evidence gleaned from fragmentary records. This is simply intrinsic to copyright, because copyright is a doctrine that requires judges to assess whether things are "creative" and "original" as though these were freestanding categories that everyone could agree upon.

Of course, the rules of copyright can make this harder or easier. One way in which the rules make deciding copyright cases much, much harder is copyright's broad prohibition on "formalities" ("formalities" is how copyright wonks refer to "red tape" or "paperwork"). For nearly all of American history, copyright ran on a key formality: deposit, registration and notice.

To secure a copyright for a new work, an artist (or their employer) had to send a copy of that work to the Library of Congress (deposit), along with paperwork detailing the claim of authorship (who made this, what parts of it did they make) (registration) and they had to display a copyright notice that told you who held the copyright to every work that was registered (notice). Both the filing and the notice required careful attention and precision, and screwing either one up could result in your losing your copyright. It's an open secret among copyright scholars that Walt Disney screwed this up with the first Mickey cartoons, meaning they've been in the public domain since their release:

https://web.archive.org/web/20080725055415/http:/homepages.law.asu.edu/~dkarjala/opposingcopyrightextension/publicdomain/HedenkampFreeMickeyMouseVaSp&E(2003).htm

This system of copyright formalities meant that you could always tell whether a work was copyrighted, you could always find out who claimed the copyright over it, and which parts of the work were claimed under copyright and under what basis. What's more, formalities created the Library of Congress, since the LoC acted as America's "copyright deposit" library, holding deposit copies of every work that had ever been issued a US copyright.

The US system of formalities was descended from the English system, in which the Stationers' Guild used a copyright registry to establish who had the rights to which books. But there were competing copyright systems, notably the "continental" system that was codified through the Berne Convention, a copyright treaty drafted by Victor Hugo (yes, that Victor Hugo).

Among other things, the Berne Convention abolished formalities. Much of the world adopted Berne, but the US held out until 1976. With the 1976 Copyright Act, Congress brought the US into compliance with Berne, abolishing formalities in the USA. As a compromise, the 1976 Act requires US authors to register their copyrights in order to obtain "statutory damages" (up to $150,000 per work). That's a pretty good incentive, but even with that incentive, the vast majority – far in excess of 99.999999999999999999999999999999999999999% – of all copyrighted works are not registered with the Copyright Office. They are born copyrighted from the moment they are "fixed in a tangible medium" until 70 years after their authors die. But without registration, you can't know when that copyright clock started ticking because you have no way to verify who the author of the work is. This not only makes it incredibly difficult to establish the copyright status of nearly every copyrighted work, but it also means that in nearly every case, you can't readily determine who you should approach if you want to pay them for a copyright license.

Abolishing formalities has created a universe of orphan works: everything from napkin doodles to kindergartners' finger paintings to message board posts. Within that universe is a kind of gaseous cloud that, if condensed, would come out to an infinitesimal planetoid, representing the entirety of commercial works whose authors give a damn about their copyright status. It's a bad, bad system.

This system doesn't do away with the need to keep careful records: like I said, copyright disputes usually require the close examination of documentary evidence. What formality abolition accomplished was the destruction of the regular system of record-keeping: rather than having a standard, universally agreed-upon way to determine the status and resolve disputes about a copyrighted work, now we have the scattershot, incoherent system that makes copyright disputes far more likely (because no one knows who to approach for copyright licenses) and far more difficult to resolve (because there's no registry of copyrighted works).

Which brings me back to the question of AI and copyright. If a firm uses some AI in its work, it's going to need to document that very carefully. Firms that don't keep very close track of the elements of their products that come from AI will have a far harder time defending their commercial interests.

Basically, we're about to recreate formalities, but managed by the private sector. To the extent that companies use AI in their work, they are going to have to track every pixel and every word and every note that is output by an AI system, and which parts were added or edited by humans after creation.

That means that companies that want to protect their commercial interests aren't just going to get more protection based on how much work they get humans to do; they're also going to have to treat copyright's government-enforceable monopoly over expressive speech with the gravitas it deserves: not something you get automatically, but something you have to do real administrative work for.

Hey look at this (permalink)


A shelf of leatherbound history books with a gilt-stamped series title, 'The World's Famous Events.'

Object permanence (permalink)

#25yrsago Slushpiles v anthrax https://memex.craphound.com/2001/10/29/some-publishers-have-instituted-new/

#25yrsago Image analogies https://mrl.cs.nyu.edu/projects/image-analogies/

#25yrsago Cleaning the Fucking Kitchen for Dummies https://web.archive.org/web/20011007082222/https://www.fridgemagnet.org.uk/kitchen.html

#20yrsago Last minute changes snuck into Aussie DMCA https://web.archive.org/web/20061104133320/https://www.eff.org/deeplinks/archives/004975.php

#20yrsago Creative Commons 3.0 license drafts published https://creativecommons.org/2006/10/30/version30revisedlicensedrafts/

#20yrsago Bush legalizes martial law https://politics.slashdot.org/story/06/10/28/1934208/bush-signs-bill-enabling-martial-law

#20yrsago No blogging allowed at “consumer generated media” conference https://web.archive.org/web/20061108055635/http://gregverdino.typepad.com/greg_verdinos_blog/2006/10/social_media_fi.html

#20yrsago Li'l Sparky: miniature 9V electric chair https://www.flickr.com/photos/84221353@N00/281833134/in/pool-make/

#20yrsago New Starbucks stores to open across the street from each other https://www.spokesman.com/stories/2006/oct/29/starbucks-buzzes-along-with-expansion/

#15yrsago HOWTO defend yourself against tear-gas https://web.archive.org/web/20111030230740/http://www.stumbleupon.com/su/5Fe8Ye/motherjones.com/mojo/2011/10/ows-flier-defending-against-tear-gas

#15yrsago How to make a computer that doesn’t lock out GNU/Linux https://web.archive.org/web/20120113141447/https://www.linuxfoundation.org/sites/main/files/lf_uefi_secure_boot_open_platforms.pdf

#15yrsago Microsoft buys Skype, attacks reverse engineer with bogus takedown notices and florid language https://www.phoronix.com/news/MTAwNzI

#15yrsago Justin Bieber: senator who sponsored anti-streaming bill should be “locked up — put away in cuffs” https://arstechnica.com/tech-policy/2011/10/justin-bieber-streaming-bill-author-should-be-locked-up/

#15yrsago SOPA in depth: the worst-ever copyright proposal in US legislative history? https://www.eff.org/deeplinks/2011/10/sopa-hollywood-finally-gets-chance-break-internet

#15yrsago Fresh German police-malware uncovered; everything the police said in defense to date revealed as lies https://www.ccc.de/en/updates/2011/analysiert-aktueller-staatstrojaner

#15yrsago Russia dumps daylight savings https://www.bbc.com/news/world-europe-15512177

#15yrsago Class War funnies: 1935 Daily Worker comics https://philnel.com/2011/02/02/hoff_teeth/

#15yrsago Christian groups: we will bodily protect Occupy London from St Paul’s https://www.theguardian.com/uk/2011/oct/29/christians-defend-occupy-london-protest

#15yrsago Dean of St Paul’s resigns over plan to evict OccupyLondon https://www.theguardian.com/uk/2011/oct/31/dean-st-pauls-resigns-occupy

#15yrsago The future of the living room: Authorised Domain https://dn711102.ca.archive.org/0/items/Cory_Doctorow_Podcast_215/Cory_Doctorow_Podcast_215_Authorised_Domain.mp3

#15yrsago Sales tax is still regressive, gravity still sucks, and George Osborne is still a delusional ideologue https://www.bbc.com/news/business-15519727

#15yrsago Prince Charles exercises a secret veto over a wide swath of UK legislation https://www.theguardian.com/uk/2011/oct/30/prince-charles-offered-veto-legislation

#15yrsago London cops recording movements & association with mobile tracking device: “blanket & indiscriminate” https://www.theguardian.com/uk/2011/oct/30/metropolitan-police-mobile-phone-surveillance

#10yrsago The Shadow Brokers dump more intel from the NSA’s elite Equation Group https://medium.com/@shadowbrokerss/message-5-trick-or-treat-e43f946f93e6#.x2c36nsfq

#10yrsago Wells Fargo blackballed employees who refused to commit fraud, forcing them out of the industry forever https://www.npr.org/sections/money/2016/10/28/499805238/episode-732-bad-form-wells-fargo

#10yrsago Listen: free recordings of Edgar Allen Poe stories, read by Vincent Price and Basil Rathbone https://open.spotify.com/album/6xDmRcD6sgsGbDvBRpyH5H?play=true&utm_source=open.spotify.com&utm_medium=open

#10yrsago How Minnesota’s governor performed an economic miracle by raising tax on the rich and increasing minimum wage https://www.huffpost.com/entry/mark-dayton-minnesota-economy_b_6737786

#10yrsago Icelandic women walk off the job 14% early to protest 14% pay-gap https://www.teenvogue.com/story/women-iceland-protest-gender-wage-gap

#10yrsago Snowden to journalists: your best defense is legal limits on spying, not cryptography https://medium.com/global-editors-network/e-snowden-against-surveillance-journalists-engagement-more-efficient-than-encryption-dbfbacdf9463#.jd6u431fo

#10yrsago After North Carolina Republicans banned cities selling internet, a town decided to give it away instead https://arstechnica.com/information-technology/2016/10/city-isp-makes-broadband-free-because-state-law-prohibits-selling-access/

#5yrsago LaserWriter II https://pluralistic.net/2021/10/29/norwegian-potato-flour-enchiladas/#r2r

#5yrsago Now, Put It Back! https://pluralistic.net/2021/10/31/now-put-it-back/

#1yrago The internet was made for privacy https://pluralistic.net/2025/10/31/losing-the-crypto-wars/#surveillance-monopolism

#1yrago When AI prophecy fails https://pluralistic.net/2025/10/29/worker-frightening-machines/#robots-stole-your-jerb-kinda

Upcoming appearances (permalink)

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A screenshot of me at my desk, doing a livecast.

Recent appearances (permalink)


A grid of my books with Will Stahle covers..

Latest books (permalink)


A cardboard book box with the Macmillan logo.

Upcoming books (permalink)

  • "The Post-American Internet," a geopolitical sequel of sorts to Enshittification, Farrar, Straus and Giroux, 2027

  • "Unauthorized Bread": a middle-grades graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, April 20, 2027

  • "Enshittification, Why Everything Suddenly Got Worse and What to Do About It" (the graphic novel), Firstsecond, 2027

  • "The Memex Method," Farrar, Straus, Giroux, 2027


Colophon (permalink)

Today's top sources:

Currently writing:

  • “Once Is Enemy Action,” a science fiction novel about the origins of modern technofascism. Today's words: 504 (31359 total).

  • "The Post-American Internet," a sequel to "Enshittification," about the better world the rest of us get to have now that Trump has torched America. Fourth draft completed. Submitted to editor.

  • A Little Brother short story about DIY insulin PLANNING

This work – excluding any serialized fiction – is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

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Quotations and images are not included in this license; they are included either under a limitation or exception to copyright, or on the basis of a separate license. Please exercise caution.

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