Michael P. Goodyear
Volume 77, Issue 5, 1153-1212
Generative artificial intelligence (“AI”) is changing the way we do everything from legal research to artistic creation. These advances are possible through recent improvements in machine learning, but greater AI capacity comes with increasingly unpredictable outputs. AI systems often generate outputs the user and developer never considered, let alone intended. Sometimes, these unforeseen outputs can infringe others’ copyrights. In the past two years, copyright law has become one of the leading legal and policy battlegrounds for generative AI. Yet the question of who should be liable when AI systems infringe remains unanswered.
By examining the historical doctrinal response of copyright law to new technologies, this Article offers a new analytical framework for determining liability for what it terms artificial infringement, where generative AI systems create infringing outputs. Time and again, new technologies have posed challenges to existing copyright law, straining its capacity to balance protecting authors’ rights to incentivize new creative works and providing public access to those works. Courts and Congress have been able to maintain this balance by using a variety of doctrinal and regulatory tools, including fair use, compulsory licensing, and secondary liability. One undertheorized tool, however, is the refinement of the copyright infringement claim. Examining the evolution of copyright infringement reveals the emergence of the volition or causation requirement in response to increasingly complex machines.
This Article advances causation into the AI era and proposes that the AI system should be held directly liable for artificial infringement because it determines the expression in the infringing output. Then, by making the AI system the direct infringer as a legal person or legal fiction, courts can remove copyright law from strict liability and instead utilize secondary liability doctrines to conduct a more nuanced, fault-based analysis of user and developer liability for AI-generated infringements. This conceptualization of the AI system as the direct infringer and users and developers as potentially secondarily liable helps resolve the seismic infringement battles between copyright owners and AI while maintaining balance between copyright’s competing policy goals.