After the Alston case held the NCAA rule prohibiting student athletes from accepting compensation for use of their name, image and likeness, (NIL), to be in violation of federal anti-trust laws, college athletic departments held their collective breath. What would the NCAA do now? The answer was not much. The best the NCAA could do was to adopt an interim policy allowing universities to comply with their state laws on NIL until the Congress passed a federal statute pre-empting those state laws. But that will never happen. There is no way a member of the House or Senate is going to vote to substitute a federal law for a recently enacted law in their home state on the same subject. To be sure, no member… read more →
A federal district court in Washington D.C. has just concluded that a piece of visual artautonomously created by a computer algorithm is not eligible for copyright protection becauseit lacked human authorship. Stephen Thaler sought to register for copyright a picture generatedby a computer program, naming the machine as the author and seeking transfer of thecopyright to him as owner of the machine. The copyright office denied the registration andThayer filed suit in federal district court in Washington, D.C. On cross motions for summaryjudgment the court considered as the sole issue: Is a work generated entirely by an artificialsystem absent human involvement eligible for copyright protection? The court said no, holdingthat, “human authorship is an essential part of a valid copyright claim.” Section 102(a) of the… read more →
This question is certain to arise in many contexts but is particularly relevant in the area of copyright law. The laws of copyright were written to protect human creative content in books, songs, photographs, etc. A common defense to copyright infringement, (of a song for example), is that the offending product is a new “work” and is therefore protected “speech” under the First Amendment and/or permitted by the “fair use” doctrine. But is it speech at all if it was created by a machine? Must protected speech emanate from a human brain? There is little doubt the framers of the constitution were thinking of human speech when they adopted the First Amendment. Even Benjamin Franklin, who was likely responsible for including in the document the… read more →
