Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/30

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Case 1:22-cv-01564-BAH Document 17 Filed 02/07/23 Page 30 of 34

D.

Plaintiff’s Policy Arguments are Irrelevant and Fail to Demonstrate that the Office’s Decision was Arbitrary and Capricious

Much of Plaintiff’s Motion is devoted to policy arguments in favor of copyright protection for AI created works. But policy arguments do not demonstrate that the Office’s decision was arbitrary and capricious under current law. Rather, these arguments simply show that Plaintiff disagrees with the Office’s decision.^[1] As the Federal Circuit stated in response to these same policy arguments raised in Thaler v. Vidal, “Thaler’s policy arguments are speculative and lack a basis in the text of the Patent Act and in the record. In any event, the text before us is unambiguous, and we may not ‘elevate vague invocations of statutory purpose over the words Congress chose.’” 43 F.4th at 1213 (quoting Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1792–93 (2022)).

Here, Plaintiff’s policy arguments do not support his claim that Defendants violated the APA. Instead, Plaintiff’s arguments merely state his own view that the human-authorship requirement “frustrates the purpose of the [Copyright] Act which is to promote the dissemination and creation of work.” Dkt. 16 at 1. And Plaintiff made similar arguments to the Office during the registration process. See Dkt. 13-5; Dkt. 13-7. Plaintiff claimed that because copyright serves as “a financial incentive to generate expressive works,” copyright for machine-generated works would provide economic incentives for developing “creative AIs” capable of generating

↑ For example, Plaintiff criticizes the Office’s reference to the National Commission on New Technological Uses of Copyrighted Works (“CONTU”) Report by claiming that the Office “ignores that CONTU did not seriously consider the possibility of AI-Generated Works as they were considered ‘too speculative’ at the time.” Dkt. 16 at 21 (citation omitted). But the Office relied on the CONTU Report to support its understanding that “the existing judicial construction of ‘original work[s] of Authorship’ … require[s] human authorship.” Dkt. 13-8 at US_0000035 (citing CONTU, Final Report at 1 (1978) (emphasis added)). While Plaintiff disagrees, as a policy matter, with what the law should be, the CONTU Report itself observes that Congress would be responsible for any change to the copyright laws. CONTU, Final Report at 44–46.

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[1] For example, Plaintiff criticizes the Office’s reference to the National Commission on New Technological Uses of Copyrighted Works (“CONTU”) Report by claiming that the Office “ignores that CONTU did not seriously consider the possibility of AI-Generated Works as they were considered ‘too speculative’ at the time.” Dkt. 16 at 21 (citation omitted). But the Office relied on the CONTU Report to support its understanding that “the existing judicial construction of ‘original work[s] of Authorship’ … require[s] human authorship.” Dkt. 13-8 at US_0000035 (citing CONTU, Final Report at 1 (1978) (emphasis added)). While Plaintiff disagrees, as a policy matter, with what the law should be, the CONTU Report itself observes that Congress would be responsible for any change to the copyright laws. CONTU, Final Report at 44–46.

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