Last month, a federal appeals court confirmed what most legal regimes around the world—patent offices, administrative judges, and even supreme courts—have long held: machines cannot themselves create.
Readers of this space are by now hopefully well acquainted with the fierce divisions between autonomists—those who contend that artificial intelligence (AI) is now or will soon become genuinely independent of its programmers—and automatoners, or those who argue machines will never transcend the humans who design them.
And, in particular, we have for years studied the trajectory of a particular machine called the Distributed Autonomous Bootstrapping of Unified Sentience, or DABUS, an AI invented by computer scientist and serial entrepreneur Stephen Thaler.
DABUS and Thaler are, in many ways, the main character of Like Silicon From Clay, my new book on AI policy, the quintessential positive autonomists, on a mission to secure inventive and creative rights for machines the world over. Thaler argues that DABUS has, on its own, invented several items, but until now, only Saudi Arabia and South Africa have recognized the machine as an inventor while more than a dozen patent offices around the world have rejected the possibility.
Thaler had also applied for a US copyright in the name of DABUS’s predecessor, the Creativity Machine, asserting, among other things, that the AI had independently created a picture entitled “A Recent Entrance to Paradise.” However, in 2023, after the Copyright Office had denied his claim, a federal district court rejected his petition, holding that “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media” and that a protectable work must “have an originator with the capacity for intellectual, creative, or artistic labor.” This language epitomizes the automatoner perspective—only humans can truly create, and machines merely—slavishly—emulate their programmers.
Thaler appealed, but last month, in Thaler v. Perlmutter, the US Court of Appeals for the District of Columbia Circuit ruled against him once again. “The Copyright Act,” Judge Patricia Millett wrote, “does not define the word ‘author.’ But traditional tools of statutory interpretation show that, within the meaning of the Copyright Act, ‘author’ refers only to human beings.” Circumstantial evidence supporting this proposition include the statute’s reference to ownership, a uniquely human capacity; the lifespan of an author; mens rea; a signature; and intentions.
In addition, the court found, “every time the Copyright Act discusses machines, the context indicates that machines are tools, not authors.” Judge Millett also cited a 1978 Copyright Office report concluding that “there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use.”
The DC Circuit also dismissed Thaler’s argument that “the human-authorship requirement will disincentivize creativity by the creators and operators of artificial intelligence.” But it did allow that “the Copyright Office is studying how copyright law should respond to artificial intelligence…and is making recommendations based on its findings.”
None of this added up for Thaler, who, when I wrote to him, was understandably disappointed. “Let’s be realistic,” the inventor told me, “machines will inevitably create on their own. As AI systems advance, we will witness an explosion of novel concepts generated by machines, many of which humans will claim as their own.”
Thaler disputed Judge Millett’s characterization of machines as lacking a lifespan. “Machines, like living beings, degrade over time,” he said. “My collection of retired computers stands as proof that these systems experience functional decline, typically within five to ten years.”
In addition, Thaler rebutted the court’s ruling that machines lack signatures. “DABUS,” he argued, “possesses something far more sophisticated than a conventional signature: a neural fingerprint, akin to a functional MRI, that can be recorded and preserved indefinitely.”
Finally, Thaler vigorously disagreed that machines lack intentionality and awareness. “DABUS does” have mens rea, he insisted to me. “Like humans, its mental state fluctuates under various conditions,” as he has shown in several papers. This, perhaps, is the key dividing line between autonomists like Thaler and automatoners like the Copyright Office and the American judicial system.
For now, the latter have prevailed once again. But Thaler and DABUS are undeterred, and as AI continues to develop, they hope to persuade their doubters in the near future.
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