IP regulations will stifle Generative AI innovation [opinion]…

In response to the United States Patent & Trademark Office , and U.S. Department of Commerce 's Request for Comments Regarding Artificial Intelligence and Inventorship...

Intellectual Property protections in the US purportedly began as a means to foster innovation. The simple premise being:

“Why would a person spend their time innovating, if others could commercialize (and thus monetize) that innovation, without any remuneration to the original innovator?”

Surely there were times in history where this made perfect sense. Such as: in the formative years of a new “nation of laws” (the United States), during the physical industrial revolution (1790), and guided by the influence of a worldly innovator (Thomas Jefferson) who’s legal career focused on land law (real property rights). However, the problem is that ideas are not physical (real), and thus cannot be proprietary (protected property), no matter what regulations may suggest. It is important to recognize that protection of unreal things are societal constructs (at best) and we should know by now that it is the role of technology and civilization to restore our societal quirks to their natural order. Generative AI has arrived to do just that, but the groundwork for this societal reconstruction was laid centuries ago...

A retrospective

While most in the field of American IP know that Jefferson lobbied for and signed the Patent Act in 1790 - and later that same year issued the first patent - few learned that he would eventually come to realize that his intention to foster innovation by providing protections were flawed in principle. Perhaps he did not live to witness how the IP landscape that he created would be appropriated by litigators who find it more equitable to stifle innovation than to foster it; but he did at least see the writing on the wall. It was about a quarter century after awarding that first patent to inventor Samuel Hopkins when Jefferson declared that ”Inventions cannot, in nature, be a subject of property.” It was likely by this time, after having held leadership positions at the state department, the patent board, and the executive branch as US president that Jefferson could appreciate the historical coupling of patent wards with corruption and bureaucracy. Perhaps his most humbling realization - that the British patent system which America copied was exposed as a fundraising tool for the British crown - led him to admit that “nations have thought that these monopolies produce more embarrassment than advantage to society.”

”Inventions cannot, in nature, be a subject of property” ... “nations have thought that these monopolies produce more embarrassment than advantage to society.” - Thomas Jefferson, 1814 (full quote below).

Eventually, after we put egos aside, we realize that humans innovate because we are biologically programmed to do so. It is not a choice we make. Our species has evolved the ability to think, learn and communicate so that we can improve the circumstances that benefit most species. Thus, the premise that monetary gain is the primary driver of human innovation is naturally flawed. Furthermore, to suggest that government bodies have the resources to “protect” any ideas or processes in a digitally connected world is ludicrous. For some period of time, they may be able to impose some regulations on some marketplaces, but regulations become much less enforceable in a peer-to-peer transaction, and completely unenforceable in a private person’s domain. In other words, it will only become easier and more acceptable to trade “knockoffs”, and you will even more easily be able to make them for yourself.

But what about equity for the inventor? This is the real issue we humans must grapple with. Baked somewhere within our nature is a desire for fairness. It is typically not until power and exclusivity is felt in abundance that humans know to crave elitism. Until that point, we expect the rules of nature, random as they may be, to work out to the benefit of those that “deserve” it - although not to the point of abundance.

Luckily, we don’t need laws on books in order to remunerate inventors, as technology generally has composability built in. This means that “prior works” are not only respected in technology circles, but that profits can be programmatically and monetarily awarded. Rest assured that Meta, Amazon, Google, Microsoft,? and Apple (MAGMA) are churning out open source generative AI tools banking on entirely new business models that have yet to fully take shape. Had our IP laws been anchored in such shared attribution and collective equity principles rather than the polarizing litigious “winner takes all” arena that currently exists, we might be much further along in such business models by now. Perhaps to the point where all inventions could be composable by anyone without permission or fear of retribution from squatters. The current circumstances undoubtedly account for a large amount of unfounded inventor paranoia, keeping society from benefiting from those works.

But what about art? Let’s forget for a moment that we live in a world of finites… there is a finite number of words in each language; there are a finite number of colors the human eye can see; there are a finite number of hearable musical note frequencies, and as few as 12 distinct tonal sounds in all the music we hear; there are a finite number of flavors we can taste broken into 7 types; there are a finite number of textures we can recognize, with just 5 tactile perceptions. Let’s also forget for argument’s sake that each of the compositions of art ever made are a subconscious expression of the artist. What we cannot reconcile when “protecting” creative works is that every work of art is merely a derivative of another artist’s work. Regardless how transformative it may be, no musician alive today can claim to have invented a new musical note; nor can a painter claim to have invented a new color, or a writer claim new words as their exclusive property. The true inventors are long gone, and even the “pioneers” of these inventions are often mistakenly credited. But while we debate how to fairly remunerate every contributor, the bigger question is: are creative ideas truly unique?

How unique are each of our thoughts, really? If necessity is the mother of invention, as the saying goes, how can we be sure that - given the same set of circumstances, information, skills and talents - two or more humans would not come up with the same ideas? And how exactly does it benefit humanity to award an exclusive “claim” of said ideas to only the few that can navigate the complex process and afford the hefty costs? Furthermore, if people can be hired to “innovate” (typically they are called researchers) and they mostly operate by a process of elimination, can that truly be considered unique thought? Or is it merely a race to see which method reaches the finish line first? Or is there some nuance that we are struggling to identify? Regardless of the answers, factor in that Generative AI and Quantum computing are already able to simulate research conditions perfectly and iterate over millions of variations per second, thus operating exponentially faster than humans. Who will reach the finish line first? Who deserves a monopoly on the results? Ultimately, there is no scarcity of thought, so it's really a matter of priority.

But what about a creator’s reputation??Among the few valid concerns of IP law today is that of misrepresentation by false association of a brand, specifically one known for quality or being in fashion. However, this problem of false provenance goes much deeper than just brands used in commerce, yet they seem to benefit from the most legal protections via TradeMarks. The issue of provenance is also one that could have been dealt with a long time ago with standardized technology, but instead has been deferred in favor of litigious legal proceedings. Technology has myriad solutions for provenance that lack adoption. Most provide utility in authenticating goods, validating ownership, and providing identity, even without the need for disclosure of sensitive information (called zero knowledge proofs). These solutions solve not only for the issue of provenance, but also for the righteous and unintentional “infringements” that are not only likely, but probable in a world with a limited vocabulary (there are over 10K streets in the US named “Main Street” - how original).

But what about intent? Finally we get to the root of the matter, which is intent. As long as it is profitable for corporations to build moats, for lawyers to litigate, and for individuals to impersonate, they will find the reasons and resources to do so. With the advent of generative intelligence, this situation can either be alleviated, by allowing markets to naturally solve problems with technology on a level playing field, or exacerbated by governments implementing unnatural and imbalanced regulations that will ultimately prove to further confuse the marketplace once the next wave of advancements swoops in. As the world evolves and humans become more civilized, we should hope that the focus is less on protecting capital, and more on societal improvement or an elevated standard of living. Perhaps, had we not been putting band-aids on these societal issues with regulations, and instead incentivized the establishment of validation tools, provenance registries and zero knowledge proofs of human identity, we would be much farther along as a society.

Conclusion

Assuming that as a society, we want to retain the ability to continue rewarding “creators” and suppressing “impostors”, which to be clear is not synonymous with punishing infringement, we must be very specific about what can be considered a creation. The status quo in the realm of wordsmithing seems to be the concept of “plagiarism” which is ambiguous, but can at least (arguendo) be defined as: knowingly (intent) copying verbatim (100%) or with very high context (90% similar meaning) of non-factual and artistically unique (unattributable to person or machine) phrases or plots (story arcs or series of events) for the purpose of entertainment (not information or education). However, when it comes to multimodal arts such as visual (color, medium, story, style) or musical (tones, rhythms, cadence, gaps) arts, the parameters become too complex to analyze, and therefore must rely solely on intent. We should also be careful to specify the duration that the creator can suppress impostors, and have measures in place to protect consumers from impostor creators (falsely claiming originality in machine aided works). In practice, this system looks a lot like how books have worked for centuries (you can buy books if you want to support the authors, or you can borrow them from the library for free, but you can’t sell the books you borrow, although you can use them as a basis to derive your own works).

Full Quote:

“Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured.”