As an attorney (and this is not legal advice), I would argue--and the U.S. Copyright Office has already stated--that machine-generated content is not copyrightable, because it's not a form of human creative expression. https://www.copyright.gov/ai/Copyright-and-Artificial-Intell... ("Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.")
That said, the inquiry doesn't there. What happens next after the content is generated matters. If human creativity is then applied to the output such that it transforms it into something the machine didn't generate itself, then the resulting product might be copyrightable. See Section F on page 24 of the Report.
Consider that a dictionary contains words that aren't copyrightable; but the selection of words an author select to write a novel constitutes a copyrightable work. It's just that in this case, the author is creatively constructing from much larger components than words.
Lots of questions then obviously follow, like how much and what kind of transformation needs to be applied. But I think this is probably where the law is headed.
Can the output of the service be licensed? A bit like the AGPL, you're licensed to use/reuse/derive new works.
So if it's distributed outside of the license, that's subject to contractual penalties? I guess that's what all the "wrapper" SaaS businesses will do.
Read that report, it defined the issues and the boundaries well, for the current generation of AI tools. As they develop and expand, it's going to get interesting, especially if robotics/3d printing etc get involved.
If I use an Optimus Prime to help create art, similar to Andy Warhol's "factory", do I own the copyright on the completed work?
If a person uses AI to generate work that ends up being patentable, are patents also not available?
There's already been a case where an artist generated art using an LLM, and could not claim copyright on it [0]. Though the guy was torpedoing his own case by claiming the machine created the entire thing. The courts are supporting copyright claims when using an LLM as a tool to support human effort.
All software licensing depends on copyright. If no-one owns the copyright than it can't be licensed; it's in the public domain immediately and irrevocably.
Of course, if you rip off someone else's work, and they DMCA you, then you might need to prove that they generated the entire thing using an LLM with zero human input. Though there's plenty of folks posting blog posts claiming that that's their process, so it might not be that hard.
Patents are different. For a start they cost money and effort to get. And there are lots of rules around how they're applied and how you can defend them. Very different from copyright.
