Artificial Stupidity

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme. What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little attention to this question. Scholars have spent considerable time assessing a number of important legal questions relating to artificial intelligence, including privacy, bias, tort, and intellectual property issues. But little effort has been devoted to exploring what set of policies is best suited to helping artificial intelligence developers achieve greater levels of innovation. And examining such issues is not some niche exercise, because artificial intelligence has already or soon will affect every sector of society. Hence, the question goes to the heart of future technological innovation policy more broadly. This Article examines this question by exploring how well intellectual property rights promote innovation in artificial intelligence. I focus on intellectual property rights because they are often viewed as the most important piece of United States innovation policy. Overall, I argue that intellectual property rights, particularly patents, are ill-suited to promote more radical forms of artificial intelligence innovation. And even the intellectual property types that are a better fit for artificial intelligence innovators, such as trade secrecy, come with problems of their own. In fact, the poor fit of patents in particular may contribute to heavy industry consolidation in the AI field, and heavy consolidation in an industry is typically associated with lower than ideal levels of innovation. I conclude by arguing, however, that neither strengthening AI patent rights nor looking to other forms of law, such as antitrust, holds much promise in achieving more general forms of artificial intelligence. Instead, as with many earlier radical innovations, significant government backing, coupled with an engaged entrepreneurial sector, is at least one key to avoiding enduring artificial stupidity

Ex-Post Incentives and IP in Garcia v. Google and Beyond

In this Essay, I articulate a theory for why the outcome in the Ninth Circuit\u27s recent Garcia v. Google copyright decision is wrong. I apply the same theory to explain the problem with patent assertion entities, more colloquially known as patent trolls

Intellectual Property Law Hybridization

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time. In this Article, I argue that it is time to partially breach this traditional divide. I propose doing so by adjusting both copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some cases copyright law’s fair use defense would be well served incorporating patent law principles relating to obviousness and novelty in assessing whether some technology’s use of copyrighted works is a fair use. And injunctive relief standards under patent law should expressly take into account how granting certain patent law remedies may affect copyrightable creative activities. Several reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and innovative efforts prevalent in today’s world; technological innovation often triggers creative efforts, and vice-versa. Thus, adjusting defenses and remedies under each body of law in order to better adapt to these realities would help facilitate them, thereby providing additional incentives to create and invent that arguably offset any weakening of incentives brought about through such hybridization. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research, which shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and encouraging them under separate bodies of law difficult. Given these interrelationships, relaxing each body of law’s remedial harshness in some cases should actually spur creative and inventive activities. And finally, some scholarship has recently suggested that, based on the historical record, the Intellectual Property Clause of the Constitution is best interpreted as assuming the interdependent nature of creative and inventive activities; updating each body of law to better reflect these interdependencies is thus also warranted as a constitutional matter. These reasons collectively suggest that calibrating each of copyright and patent law to the interdependent nature of many creative and inventive activities better aligns each body of law with their common utilitarian theoretical heritage. The Article concludes by suggesting that hybridization efforts may be warranted not only within the intellectual property realm, but within the law more generally

Consumer Information Privacy and the Problem(s) of Third-Party Disclosures

U.S. consumers have little actual control over how companies collect, use, and disclose their personal information. This Article identifies two specific instances of this lack of control under U.S. law related to third-party disclosures, what I call the Incognito and Onward Transfer Problems. It then identifies the types of privacy harms that result and examines the advantages and possible drawbacks of a model law aimed at addressing these specific problems. The model law is based on a system of consumer notice and choice, the predominant method used in the U.S. to provide consumers with control over their information. Up until this point, however, this method of providing control has largely failed, and this Article seeks to address some of its failures. This Article argues that while notice and choice may be useful in addressing some information privacy problems (such as the two identified in this Article), it is not appropriate for all information privacy problems. No one-size-fits-all approach is adequate. Instead, each information privacy problem must be isolated and treated in its proper context

A Case for the Public Domain

Over the past several decades open license movements have proven highly successful in the software and content worlds. Such movements rely in part on the belief that greater freedom of use triggers innovative activity that is superior to what a restrictive IP approach produces. Ironically, such open license movements also rely on IP rights to promote their vision of freedom and openness. They do so through IP licenses that, while granting significant freedoms, also impose certain conditions on users such as the “copyleft” requirement in the software world. Such movements rely on this IP-based approach due to fears that, without IP rights and such conditions, a tragedy of the commons would ensue. This Article argues that this IP-based approach, while perhaps helpful in the beginning, is no longer necessary and in fact prevents the movements from reaching their full potential. The IP-based approach has this effect by causing significant transaction costs without offsetting benefits, resulting in a tragedy of the anti-commons. The IP-based approach also creates the risk of IP trolls in the future, especially in the copyright sphere. Furthermore, the resulting anti-commons is unnecessary to prevent the feared tragedy of the commons because most contributors to open movements do so for reasons that do not fit within the typical tragedy of the commons story. The Article then examines the benefits of a public domain approach and argues that such an approach would reduce the wasteful transaction costs, limit the possibility of IP trolls, still satisfy the purposes of those that contribute materials under open licenses, and better align with the normative tenets of such movements. To conclude, the Article assesses the merits of a “Public Domain Act” that would help address obstacles that currently exist in dedicating materials to the public domain and posits some theoretical implications relating to innovation based on the experiences of the open license movements and the arguments of this Article

An Empirical Study of Copyright’s Substantial Similarity Test

The substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it. To help provide a clearer empirical assessment of the test, this study examines a random sample of over 1,000 substantial similarity opinions issued between 1978 and 2020. This study covers opinions from district and appellate courts in every circuit and tracks a number of these opinions’ characteristics. These characteristics include: the subject matter and copyright rights in dispute; procedural posture; opinion date; the subtests, expert evidence, and copyright limitations used in the opinion; the sources of authority that courts rely on in their opinions; and outcomes for each part of the test and the case overall. This review reveals a number of important findings. First, similar to other types of copyright litigation, courts in the Second Circuit and Ninth Circuit dominate the substantial similarity space, with the Ninth Circuit more recently displacing the Second Circuit as the primary venue for substantial similarity cases. Courts also rely on opinions from these two circuits more than any other source in interpreting and applying the substantial similarity test. Second, courts typically spend little time assessing whether a defendant actually copied from the plaintiff’s work. Courts mostly decide this first prong of the substantial similarity test as a matter of whether defendants had access to the plaintiff’s work, and they mostly favor plaintiffs on this question. Courts rarely rely on expert evidence or assess the two works’ similarities on this first prong, despite courts and commentators frequently opining otherwise. Third, the second part of the test, where courts assess whether the defendant’s copying amounts to improper appropriation, is characterized by significant heterogeneity. No dominant means exists for resolving this question, and, in any given opinion, a court typically uses multiple subtests and copyright limitations to decide this inquiry. Courts also use expert evidence more frequently under this prong of the test than the first part, a result that defies conventional wisdom. Finally, defendants win substantial similarity cases slightly more frequently than plaintiffs. This is further evidence that prong one of the test, where plaintiffs enjoy significantly greater success, appears to be largely inconsequential. The data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations. We conclude by considering several implications. First, courts should maintain the two traditional prongs of the substantial similarity test as distinct and reinvigorate their assessments of similarity under the first prong of the substantial similarity test. Second, courts should make discussing and applying any relevant copyright limitations the heart of their prong two analyses to ensure that copyright law serves its constitutional purposes

Kirtsaeng and the First-Sale Doctrine\u27s Digital Problem

Many have lauded the United States Supreme Court\u27s recent decision in Kirtsaeng v. John Wiley & Sons, Inc. as a significant victory for the first-sale doctrine under copyright law. However, in the digital context, the Kirtsaeng holding and the first-sale doctrine in general face extinction. This Essay argues for the first-sale doctrine\u27s survival in the digital context

Patent Pacifism

Over the last decade, much of the patent law literature has focused on the problem of “patent trolls,” or patent owners who don’t make products, but sue others that do. The basic complaint against these types of entities is that they impose a tax on innovation without providing offsetting societal benefits. Furthermore, their patent assertions have been on the rise, with a significant percentage of patent suits now attributable to them. In short, the troll phenomenon suggests a problem of excessive patent assertions.But despite the importance of the troll phenomenon, the fact remains that most patents are never asserted, or are asserted less than they could be. Under-assertion of patents thus appears to be more prevalent than over-assertion. Yet, beyond noting a set of generic economic considerations that may lead to this outcome, the literature fails to provide systematic, industry-specific assessments of why patent owners choose to forego asserting their rights in so many cases. And the generic nature of these assessments is particularly problematic given that patents play significantly different roles from one industry to the next, as scholars have noted for some time.This Article addresses these issues by providing an industry-specific, informal model for theorizing why patent owners forego asserting their rights in so many cases (and why they may not in others). It briefly applies this model to four industries: software, pharmaceuticals, biotechnology, and semiconductors. The Article then explores some potential implications of this industry-specific model. In particular, this Article suggests that high barriers to patent assertion in an industry may, ironically, result in increased patent trolling in the industry. Hence, this Article provides guidance to policymakers by helping explain the rise of patent assertions in some industries, such as software, as well as helping to identify other industries, such as biotechnology, that may be increasingly at risk of patent trolling

Copyright\u27s Technological Interdependencies

Copyright was initially conceptualized as a means to free creative parties from dependency on public and private patrons such as monarchs, churches, and well-to-do private citizens. By achieving independence for creative parties, the theory ran, copyright led to greater production of a more diverse set of creative works.But this lingering conception of copyright is both inaccurate and harmful. It is inaccurate because, in today’s world, creative parties are increasingly dependent upon “Technological Patronage” from the likes of Google, Amazon, Apple, and others. Thus, rather than being alternatives or adversaries, copyright and Technological Patronage are increasingly interdependent in facilitating both creative and innovative activity. It is harmful because, by overemphasizing copyright’s role in spurring creative activity, the traditional view of copyright tends to polarize debates about how best to address key copyright questions.Instead, copyright is more accurately understood as an interdependent part of a broader creative system that facilitates both creative and innovative activities. This Article reviews several examples of this interdependence. It also highlights this interdependence by examining how technology companies are solving some of copyright law’s most pressing issues.Overall, this interdependent view of copyright provides a better framework for assessing the role of copyright, its technological complements, and proposed solutions to issues that relate to both creative and innovative activities. This Article also suggests that copyright and patent laws would be well served by doctrinal adjustments that better reflect these interdependencies. Indeed, the Constitutional provision authorizing intellectual property laws arguably supports such efforts