WEBVTT - Only Humans Can Copyright Works 0:00:02.759 --> 0:00:07.520 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:08.520 --> 0:00:17.200 By four. Ah, there's mister Midnight Jack Devil. 0:00:19.160 --> 0:00:22.720 Oh, good evening night, owls, and thank you for allowing 0:00:22.720 --> 0:00:23.880 me into your living rooms. 0:00:26.239 --> 0:00:29.440 You're meddling the things you don't understand who, ladies. 0:00:29.240 --> 0:00:32.560 And gentlemen, please stay tuned for a live television first, 0:00:33.000 --> 0:00:35.440 as we attempt to commune with the Devil. 0:00:36.880 --> 0:00:40.360 The horror movie Late Night with the Devil is about 0:00:40.360 --> 0:00:44.200 a seventies talk show host who keeps the cameras rolling 0:00:44.360 --> 0:00:48.560 during a live satanic incident, unleashing evil into the living 0:00:48.640 --> 0:00:53.680 rooms of viewers. It sounds scary, right, but what actually 0:00:53.760 --> 0:00:57.080 scared a lot of viewers more was the film's use 0:00:57.160 --> 0:01:02.120 of AI to generate artwork used in cutaways linking segments 0:01:02.160 --> 0:01:06.560 of the show. The social media backlash even included calls 0:01:06.560 --> 0:01:09.399 to boycott the movie. Of course, the use of AI 0:01:09.560 --> 0:01:12.720 in films and television has been a hot button topic 0:01:12.880 --> 0:01:16.080 in Hollywood, witnessed last year's strikes, where it was an 0:01:16.120 --> 0:01:19.720 obstacle to reaching deals with the writers and actors' unions, 0:01:20.000 --> 0:01:22.600 And now a federal court has issued the first ruling 0:01:22.720 --> 0:01:26.760 of its kind on whether works generated by AI. In 0:01:26.800 --> 0:01:31.120 this case, an artwork can be copyrighted. The DC Circuit 0:01:31.160 --> 0:01:36.280 Court ruled unanimously that human authorship is required to get 0:01:36.360 --> 0:01:40.480 copyright protection for a work. Joining me is intellectual property 0:01:40.520 --> 0:01:44.840 litigator Terence Ross, a partner at Katin Yutchen Rosenman. So 0:01:44.920 --> 0:01:48.800 Terry tell us about this work created by a computer scientist. 0:01:49.280 --> 0:01:52.640 Well, Jue, we talked about this in a past show, 0:01:52.960 --> 0:01:58.600 way back when this whole issue was still percolating in 0:01:58.760 --> 0:02:04.279 lower courts, and now we have the first appellate court 0:02:04.400 --> 0:02:10.239 decision on whether or not artificial intelligence can create works 0:02:10.240 --> 0:02:13.040 that can be copyrighted. And to refresh everyone's memory, this 0:02:13.120 --> 0:02:17.000 involves a computer scientist by the name of doctor Steven Taller, 0:02:17.639 --> 0:02:22.239 and he came up with his own generative artificial intelligence, 0:02:22.600 --> 0:02:26.160 which he has dubbed the Creativity Machine. And just so 0:02:26.240 --> 0:02:29.800 everybody understands, AI gets used in a lot of misleading 0:02:29.840 --> 0:02:35.080 contexts and commercials and advertising. Nowadays, real artificial intelligence is 0:02:35.120 --> 0:02:40.160 called generative AI because it's capable of learning and it 0:02:40.360 --> 0:02:46.480 improves itself without human interaction. And so doctor Toller came 0:02:46.560 --> 0:02:49.280 up with this creativity machine, and he asked it to 0:02:49.360 --> 0:02:53.160 paint a picture for him and rendered a lovely work, 0:02:53.639 --> 0:02:56.320 multi colored work, what appeared to me to be a 0:02:56.320 --> 0:03:00.560 garden scene. But doctor Toller gave it the name A 0:03:00.639 --> 0:03:05.320 Recent Entrance to Paradise, and he printed that off a printer. 0:03:05.560 --> 0:03:08.720 He took it to the US Copyright Office and filed 0:03:08.760 --> 0:03:14.040 an application to register that work for copyright registration purposes, 0:03:14.080 --> 0:03:17.720 and on the form said it was created by this 0:03:18.000 --> 0:03:23.720 creativity machine. Not surprisingly, the US Copyright Office denied that 0:03:23.840 --> 0:03:28.079 application for registration. And by way the historical background, this 0:03:28.200 --> 0:03:31.080 didn't come as a surprise to anybody. Way back in 0:03:31.200 --> 0:03:35.600 nineteen seventy three, the US Copyright Office, in its internal 0:03:35.640 --> 0:03:42.400 regulations announced that only humans can obtain copyright registrations. So 0:03:42.480 --> 0:03:46.720 this is a really longstanding position of the Copyright Office. 0:03:46.960 --> 0:03:49.840 It's not something unique to this case or unique to 0:03:49.960 --> 0:03:53.800 artificial intelligence or the current trend in AI. If your 0:03:53.800 --> 0:03:56.760 application is denied by the Copyright Office, you have a 0:03:56.880 --> 0:04:01.080 right to appeal that decision to the United States District 0:04:01.080 --> 0:04:03.680 Court for the District of Columbia, because the Copyright Office 0:04:03.840 --> 0:04:07.680 is headquartered in DC, and doctor Toller did that. The 0:04:07.720 --> 0:04:11.920 District Court judge who was assigned that case agreed with 0:04:12.000 --> 0:04:16.440 the US Copyright Office that only humans get copyrights and 0:04:16.560 --> 0:04:20.279 affirmed the decision by the US Copyright Office. Doctor Toller 0:04:20.360 --> 0:04:24.040 appealed from that District Court decision to the Federal Pellet 0:04:24.160 --> 0:04:27.120 Court for the District Columbia, which is called the United 0:04:27.120 --> 0:04:30.440 States's Court of Appeals for the District of Columbia Circuit, 0:04:30.600 --> 0:04:32.880 which coincidentally is the court that I was a law 0:04:32.880 --> 0:04:35.799 clerk on. And we get a decision in that case 0:04:35.839 --> 0:04:39.760 finally from the DC Circuit, and the DC Circuit affirmed 0:04:40.120 --> 0:04:43.360 the District Court, which in turn had affirmed the US 0:04:43.440 --> 0:04:46.840 Copyright Office. The DC Circuit agreed with everybody else who 0:04:46.880 --> 0:04:50.360 had looked at this and said that copyright registrations can't 0:04:50.560 --> 0:04:53.120 be granted to robots. 0:04:53.680 --> 0:04:57.560 And so this was not a surprising decision, right that 0:04:57.680 --> 0:05:01.479 the Copyright Act requires a human being. 0:05:01.520 --> 0:05:04.479 It certainly wasn't a surprise to me. I think the 0:05:04.640 --> 0:05:07.760 consensus was the case would come out this way, and 0:05:07.800 --> 0:05:12.400 it's really driven by the factual predicate. Doctor Toller was 0:05:13.120 --> 0:05:17.640 unequivocal in telling the Copyright Office and every step on 0:05:17.720 --> 0:05:23.279 appeal that he was not the creator of this drawing, 0:05:23.640 --> 0:05:27.320 that it was the creativity machine, a generative AI that 0:05:27.560 --> 0:05:31.960 had rendered the drawing. So there was no dispute on 0:05:32.040 --> 0:05:34.159 the facts. There was no line drawing to be done. 0:05:34.279 --> 0:05:37.800 There's no gray areas, had a nice, crisp, clear presentation 0:05:38.320 --> 0:05:42.320 of that central fact. Given that lack of dispute on facts, 0:05:42.360 --> 0:05:45.919 it was really then driven by the law. And the 0:05:46.080 --> 0:05:51.440 interesting thing about the DC Circuit's opinion, which differed from 0:05:51.600 --> 0:05:55.479 the Copyright Office decision in the District Court decision, is 0:05:56.400 --> 0:05:59.599 a laser like focus by the DC Circuit on the 0:05:59.720 --> 0:06:03.440 techs of the Copyright Act in nineteen seventy six. And 0:06:04.000 --> 0:06:06.760 this is sort of the trend in appellate courts and 0:06:06.800 --> 0:06:09.560 the Supreme Court these days. What is referred to by 0:06:09.600 --> 0:06:14.400 lawyers as textual analysis. It is no longer some right 0:06:14.440 --> 0:06:21.039 wing theory propagated by Justice Scalia. It is this concept 0:06:21.120 --> 0:06:25.480 of textural literalism has just seized the appellate courts. In 0:06:25.520 --> 0:06:28.320 the Supreme Court, you see both the so called liberal 0:06:28.400 --> 0:06:30.960 justice of the Supreme Court and the conservative justices on 0:06:31.000 --> 0:06:34.279 the Supreme Court agreeing that you apply this sort of 0:06:34.320 --> 0:06:37.640 textual analysis whenever there's a statute of Constitution up. This 0:06:37.680 --> 0:06:41.160 is a sea change from twenty years ago, and here 0:06:41.200 --> 0:06:43.719 you see it being done by the DC Circuit in 0:06:43.720 --> 0:06:46.039 connection with this case and what they do that the 0:06:46.080 --> 0:06:50.120 DC Circuit marched through the Copyright Act and they said, 0:06:50.520 --> 0:06:53.760 you know, there's a distinction in the text of the 0:06:53.760 --> 0:06:58.920 Copyright Act between machines and authors. And they laid out 0:06:59.000 --> 0:07:03.840 that themes don't own property because under the Act, copyrights 0:07:03.880 --> 0:07:07.719 are property and authors get to own copyrights, but machines 0:07:07.720 --> 0:07:12.040 don't own property. Machines don't have a lifetime because copyright 0:07:12.120 --> 0:07:16.600 registrations are measured in part by the lifetime of the 0:07:16.680 --> 0:07:20.360 author plus a certain number of years. But machines don't 0:07:20.360 --> 0:07:25.080 have a lifetime. Machines have no errors. There's nobody who 0:07:25.120 --> 0:07:27.040 inherits for a machine in part because it doesn't have 0:07:27.080 --> 0:07:29.200 a death, doesn't have a lifetime. And yet there's a 0:07:29.240 --> 0:07:33.880 provision in there that says the errors of authors obtain 0:07:34.000 --> 0:07:36.400 their rights, So how do you account for that? And 0:07:36.440 --> 0:07:40.000 then there's also provision in the text about the nationality 0:07:40.000 --> 0:07:44.720 and domicile of authors. Yet machines don't have nationality, machines 0:07:44.720 --> 0:07:48.080 don't have domicile. Indeed, the court pointed out that in 0:07:48.120 --> 0:07:50.720 the text of the Copyright Act nineteen seventy six, every 0:07:50.880 --> 0:07:55.080 time a machine is referenced, it is as a tool 0:07:55.360 --> 0:07:58.800 being used by human authors, and they thought that was telling. 0:07:59.080 --> 0:08:03.440 And there's express reference to computer programs. Computer programs don't 0:08:03.440 --> 0:08:07.200 get to register themselves. They're simply a tool used by 0:08:07.480 --> 0:08:10.800 human beings to create works. And they thought that this 0:08:10.880 --> 0:08:15.760 distinction between machines and authors in the text was determintive here. 0:08:15.840 --> 0:08:18.840 And therefore they came to the conclusion. And if you 0:08:18.880 --> 0:08:20.800 follow their logic, if you grew with the logic that 0:08:20.880 --> 0:08:24.680 we followed, the text seems inescapable that an author for 0:08:24.720 --> 0:08:26.920 purposes of copyright has to be a human being. 0:08:27.160 --> 0:08:30.960 Coming up, what about works created by input from a 0:08:31.080 --> 0:08:37.680 human and AI? This is Bloomberg. A unanimous DC Circuit 0:08:37.720 --> 0:08:43.320 court has ruled that copyright protection requires human authorship, a 0:08:43.440 --> 0:08:49.439 setback to efforts seeking intellectual property protection for AI generated creations. 0:08:49.720 --> 0:08:53.400 I've been talking to intellectual property litigator Terrence Fross, a 0:08:53.480 --> 0:08:56.920 partner at Caton Mutchen Rosenman Terry. What arguments did the 0:08:56.920 --> 0:09:00.120 computer scientist make to try to get the court to 0:09:00.160 --> 0:09:03.440 find that there should be a copyright issued for a 0:09:03.520 --> 0:09:05.640 wholly AI generated work? 0:09:05.920 --> 0:09:09.280 So Peller makes a couple arguments. The only one that 0:09:09.320 --> 0:09:13.000 they gave much credence to was dictionary definition. There are 0:09:13.280 --> 0:09:17.960 dictionary definitions where you look up creator and the definition 0:09:18.040 --> 0:09:21.040 suggests it could be a machine. But as VC Circuit 0:09:21.080 --> 0:09:26.440 pointed out, we don't go to a dictionary definition unless 0:09:26.480 --> 0:09:30.040 there's ambiguity in the statute. And here they said, you know, 0:09:30.080 --> 0:09:33.559 we're doing a textual analysis. Here, we're looking strictly the text, 0:09:33.559 --> 0:09:37.319 and the text is clear as can be that there 0:09:37.400 --> 0:09:41.360 is a distinction drawn between authors who have get copyrights 0:09:41.360 --> 0:09:44.679 and machines who are merely tools used by authors, and 0:09:44.720 --> 0:09:47.880 therefore we don't need to look at any dictionary definition. Now, 0:09:48.040 --> 0:09:50.800 the rest of the arguments made by Polar and the 0:09:50.880 --> 0:09:53.400 DC CERCUM was clear on this and correct. I think 0:09:53.640 --> 0:09:57.400 they described as public policy arguments. And again this is telling. 0:09:57.800 --> 0:10:00.319 They said on all these other public policy are hums. 0:10:00.400 --> 0:10:03.720 You have you take those to the Congress. And there's 0:10:03.840 --> 0:10:07.520 a great quote in here they say, our duty as 0:10:07.520 --> 0:10:11.920 a court is to apply the statute as written. That's 0:10:11.920 --> 0:10:15.840 a quote, apply the statute is written. I mean, this 0:10:15.920 --> 0:10:20.640 would make Justice Scalia so happy that this has become 0:10:20.679 --> 0:10:24.200 the norm now. And you know what, if that's the 0:10:24.240 --> 0:10:27.199 standard you're going to use for analysis, then there's no 0:10:27.400 --> 0:10:30.360 question how this case should come out, because in fact, 0:10:30.760 --> 0:10:33.280 most of the argument made by doctor Tholer, aren't simply 0:10:33.520 --> 0:10:37.160 public policy arguments as to why Congress should rewrite the 0:10:37.200 --> 0:10:38.000 Copyright Act. 0:10:38.160 --> 0:10:42.880 So this work was created wholly by AI. What about 0:10:42.960 --> 0:10:47.040 works that are created with a mixture of human and 0:10:47.160 --> 0:10:49.480 AI input? Are they copyrightable? 0:10:49.840 --> 0:10:53.600 So this is the issue that is really getting all 0:10:53.720 --> 0:10:57.320 the discussion in the academic circles that I run in. 0:10:57.800 --> 0:11:02.679 And Poller made argument like that, which the DC Circuit 0:11:03.160 --> 0:11:06.920 again lumped into the public policy type arguments, and what 0:11:07.000 --> 0:11:10.439 they said is that we only decide cases that are 0:11:10.480 --> 0:11:15.320 presented to us. These what they described as line drawing arguments. 0:11:15.600 --> 0:11:17.640 You know, where do you draw the line between a 0:11:17.720 --> 0:11:21.480 human author and a machine author? These line drawing arguments 0:11:21.760 --> 0:11:24.840 aren't presented to us here, and so we're not going 0:11:24.920 --> 0:11:28.760 to decide those. And they recognize that there and there 0:11:28.800 --> 0:11:32.800 were in the Amikus briefs disagreements over how much of 0:11:32.800 --> 0:11:36.920 a contribution by AI makes it a machine generated work 0:11:37.080 --> 0:11:40.000 as opposed to human generated work, and the DC Certus said, 0:11:40.120 --> 0:11:43.360 that's not this case. Doctor Toller has never made that argument. 0:11:43.760 --> 0:11:47.560 He's been crystal clear that the machine, the robot, did 0:11:47.640 --> 0:11:50.480 all the drawing here, and that's all we have to 0:11:50.520 --> 0:11:54.920 decide again. This is the sort of decision that would 0:11:54.920 --> 0:11:57.920 make Justice Skilly a proud. It looks at the text 0:11:58.320 --> 0:12:00.840 and it does not come to render it opinions or 0:12:00.880 --> 0:12:04.280 tell Congress how to do its job. It simply plays 0:12:04.360 --> 0:12:07.880 referee and makes a decision on what is actually presented 0:12:07.920 --> 0:12:08.160 to it. 0:12:08.320 --> 0:12:11.080 So I read that the Copyright Office how's allowed the 0:12:11.120 --> 0:12:16.960 registration of works made by humans who use AI. 0:12:17.320 --> 0:12:20.080 That is correct. There have been several of those because 0:12:20.200 --> 0:12:23.200 those were allowed. I'm not sure how we ever get 0:12:23.559 --> 0:12:26.440 a review in a court of law of that. At 0:12:26.440 --> 0:12:29.720 some point we will have a case where the Copyright 0:12:29.720 --> 0:12:34.439 Office is not enough human involvement, too much machine involvement, 0:12:34.720 --> 0:12:36.480 and then that will get us a review and we 0:12:36.559 --> 0:12:39.120 might understand this better. But think about it in these terms. 0:12:39.840 --> 0:12:46.120 Humans use machines all the time to create works. As 0:12:46.280 --> 0:12:49.880 a newsperson, you're doing that with your typewriter. Authors are 0:12:49.880 --> 0:12:55.200 doing that with their typewriters laptops. Journalists on the nationwide 0:12:55.280 --> 0:12:59.440 news networks are doing it with cameras. Radio newscasters are 0:12:59.480 --> 0:13:01.920 sticking them microphone in front of the sports hero and 0:13:02.240 --> 0:13:06.400 recording his thoughts. Humans use machines all the time, and 0:13:06.720 --> 0:13:09.600 there should be no difference with respect to using AI 0:13:09.720 --> 0:13:14.480 to help. Indeed, a son, Teddy, who is a computer coder, 0:13:14.920 --> 0:13:18.160 and there are so many different artificial intelligence programs out 0:13:18.160 --> 0:13:22.280 there right now that help coders source coders to write 0:13:22.360 --> 0:13:25.760 programs and makes their job more efficient, more effective. Does 0:13:25.800 --> 0:13:28.240 that mean the human's not involved? I don't think so. 0:13:28.240 --> 0:13:30.960 So I think that's the answer to that question. It's 0:13:30.960 --> 0:13:33.880 simply the machine being used by human. It's not the 0:13:33.920 --> 0:13:36.640 machine getting a copyright registration. 0:13:37.440 --> 0:13:41.200 Maybe I'll have AI assistance in writing the lead into 0:13:41.200 --> 0:13:42.280 this segment. 0:13:42.360 --> 0:13:43.800 Oh god, I'm sure you could. 0:13:44.200 --> 0:13:46.600 It seems like AI is everywhere and there are so 0:13:46.720 --> 0:13:50.760 many lawsuits over AI. What are the stakes here? 0:13:51.400 --> 0:13:55.720 So, Jude, this is a surprisingly important issue. If you remember, 0:13:56.480 --> 0:14:00.319 almost two years ago, the Screenwriters Guild the Writer Skilled 0:14:00.320 --> 0:14:03.640 of America went on strike and stopped all production of 0:14:03.720 --> 0:14:07.800 film and television shows. Even reality shows got stopped because 0:14:07.800 --> 0:14:11.600 they have writers. And one of the core issues that 0:14:11.800 --> 0:14:16.400 was presented was the use by the studios of artificial 0:14:16.440 --> 0:14:21.480 intelligence to write scripts. The writers viewed this as an 0:14:21.480 --> 0:14:25.600 existential threat to their business, to their work, that it 0:14:25.640 --> 0:14:30.080 would put writers out on the street because artificial intelligence 0:14:30.440 --> 0:14:33.960 would simply take over and do all the script writing, 0:14:34.240 --> 0:14:37.040 and that was one of the concessions that they obtained 0:14:37.040 --> 0:14:40.000 when that striker was settled. But the point here is 0:14:40.040 --> 0:14:46.840 that if artificial intelligence scripts cannot be copyrighted, then that 0:14:47.000 --> 0:14:51.920 shifts the bargaining power to the writers, because a studio 0:14:52.480 --> 0:14:55.240 that's producing spending two hundred and fifty million dollars on 0:14:55.240 --> 0:14:57.840 a big hit score generally a billion dollars in revenues 0:14:58.080 --> 0:15:00.840 cannot afford to go without a copy. And so this 0:15:00.920 --> 0:15:04.240 is actually very important in the computer context. And we 0:15:04.400 --> 0:15:07.200 just talked about how artificial intelligence is being used to 0:15:07.240 --> 0:15:13.560 help coders write new applications, new software. If again those companies, 0:15:13.600 --> 0:15:17.320 the Microsofts of the world, can't get copyrights on their 0:15:17.360 --> 0:15:21.280 new computer programs because of the use of artificial intelligence, 0:15:21.600 --> 0:15:25.600 that will limit their willingness to employ artificial intelligence in 0:15:25.600 --> 0:15:29.280 that way, and so again the computer scientists, the coders 0:15:29.480 --> 0:15:33.320 will keep their jobs. So this is really important. And 0:15:33.360 --> 0:15:35.760 the problem is people don't understand the extent of which 0:15:36.000 --> 0:15:40.280 copyright impacts the economy. It is really critical, and the 0:15:40.400 --> 0:15:43.720 founders saw it this way. The Founders viewed copyright it's 0:15:43.760 --> 0:15:47.600 one of the most important drivers of the US economy, 0:15:47.800 --> 0:15:53.240 and that came to fruition, and by stopping robots from 0:15:53.360 --> 0:16:01.200 getting copyrights, we preserve enormous amounts of cre native positions 0:16:01.240 --> 0:16:05.360 in the economy across multiple businesses. And that's why this 0:16:05.480 --> 0:16:10.000 decision is so important, not just in an abstract sense, 0:16:10.560 --> 0:16:14.040 but as a very real consequence for the United States 0:16:14.120 --> 0:16:15.680 economy in multiple industries. 0:16:16.400 --> 0:16:20.600 Teller's lawyer says that they're going to appeal to the 0:16:20.640 --> 0:16:24.080 full DC Circuit and if that doesn't work, they're going 0:16:24.120 --> 0:16:26.560 to appeal to the Supreme Court. Do you think the 0:16:26.640 --> 0:16:29.480 DC Circuit would take this case on bank? 0:16:29.920 --> 0:16:32.440 Now? And I understand how the DC Circuit works on 0:16:32.520 --> 0:16:36.520 these It's what's known as a petition for rehearing on bank, 0:16:36.960 --> 0:16:39.320 so that all the active judges would sit on it. 0:16:39.560 --> 0:16:41.640 In this case, there were two active judges and one 0:16:41.680 --> 0:16:44.120 senior judge, so sometimes they use it. Well, look, there 0:16:44.160 --> 0:16:45.680 was a scene, but it was only one senior judge 0:16:45.680 --> 0:16:48.520 and the panel was unanimous. But setting that aside, the 0:16:48.520 --> 0:16:52.000 internal rules used by the DC Circuit to grant a 0:16:52.000 --> 0:16:55.480 petition for rehearing on bank aren't satisfied by this decision, 0:16:55.760 --> 0:16:58.000 And if he then takes it to the Supreme Court, 0:16:58.080 --> 0:17:02.120 the Supreme Court will deny the petition for CERTSCRI because 0:17:02.480 --> 0:17:05.480 there is no split amongst the circuit courts that needs 0:17:05.520 --> 0:17:08.280 to be resolved, and this issue is not such a 0:17:08.440 --> 0:17:11.719 unique issue of law that's liable to come up on 0:17:11.760 --> 0:17:14.600 a repeated basis. So both those types of heal and 0:17:14.680 --> 0:17:17.920 appeal to the en bancd DC circuit or a petition 0:17:18.040 --> 0:17:20.520 for ressearchs ther Supreme Court are going to get denied. 0:17:21.119 --> 0:17:23.920 Are simply a waste of his time. But apparently that's 0:17:23.960 --> 0:17:27.040 part of what's going on here, is to generate some 0:17:27.080 --> 0:17:31.199 sort of publicity surrounding the use of artificial intelligence in 0:17:31.240 --> 0:17:32.200 the creative process. 0:17:32.800 --> 0:17:34.720 It seemed like he was trying to make this a 0:17:34.840 --> 0:17:37.159 test case, no question about it. 0:17:37.200 --> 0:17:39.560 This was the pest case and it served that purpose, 0:17:39.640 --> 0:17:43.120 and that respected actually was pretty useful. As I said, 0:17:43.240 --> 0:17:46.119 copyright impacts a lot of segments of the economy, and 0:17:46.160 --> 0:17:50.040 it's really really important that we got this resolution on 0:17:50.160 --> 0:17:55.480 separate track. The Patent Office has also internally ruled that 0:17:55.680 --> 0:17:58.959 only humans get patents, because you'd take the same logic 0:17:59.000 --> 0:18:02.560 that doctor Toller uses respect to copyright registration and apply 0:18:02.720 --> 0:18:07.199 to patent registration against Patents are a critical component of 0:18:07.359 --> 0:18:11.000 the US economy, a real driver of the economy, and 0:18:11.320 --> 0:18:13.800 we don't yet have the same clarity, but I'm pretty 0:18:13.800 --> 0:18:18.000 confident that the Patent Office rules on requiring human to 0:18:18.080 --> 0:18:21.399 be the applicants for patents will be upheld again. That 0:18:21.440 --> 0:18:23.200 would be a very important we'd like to see a 0:18:23.240 --> 0:18:23.960 test case on that. 0:18:24.640 --> 0:18:28.120 With all the cases percolating over these issues, I'm sure 0:18:28.160 --> 0:18:30.600 we will. It's been great to have you on again, Terry. 0:18:30.640 --> 0:18:33.800 Thanks so much. That's Terrence Ross, a partner at Katon 0:18:33.880 --> 0:18:38.119 Muchen Rosenmann. The latest effort to get the Supreme Court 0:18:38.240 --> 0:18:44.159 to restrain government regulation has an unlikely opponent, President Donald Trump. 0:18:44.440 --> 0:18:47.320 In a case that offers a chance to impose new 0:18:47.400 --> 0:18:53.560 limits on regulatory agencies, the Justice Department defended the FCC's 0:18:53.840 --> 0:18:58.639 Universal Service Fund. It's an eight billion dollar telecom subsidy 0:18:58.720 --> 0:19:01.560 program which you use. This is a charge on monthly 0:19:01.680 --> 0:19:06.639 telephone bills to subsidize phone and broadband service for poor people, 0:19:07.040 --> 0:19:12.200 rural residents, schools, and libraries. Taking this position even as 0:19:12.240 --> 0:19:16.280 Trump works to decimate federal agencies with a barrage of 0:19:16.400 --> 0:19:21.680 job and funding cuts. Some conservative justices voiced concern during 0:19:21.720 --> 0:19:26.919 the oral arguments on Wednesday that Congress had unconstitutionally handed 0:19:27.000 --> 0:19:31.360 off its taxing power to the FCC without sufficient limits. 0:19:31.560 --> 0:19:35.880 Here's Justice Neil Gorstch, who described the program's funding mechanism 0:19:36.000 --> 0:19:37.360 as unprecedented. 0:19:37.720 --> 0:19:40.160 We've got a feebody of law, We've got a rate 0:19:40.240 --> 0:19:43.280 setting body of law. This isn't either one of those. 0:19:43.320 --> 0:19:46.080 This is this is just a straight up tax without 0:19:46.119 --> 0:19:51.400 any any numerical limit, any cap, any rate. And we've 0:19:51.440 --> 0:19:53.240 never approved something like that before. 0:19:53.760 --> 0:19:57.920 But Justice Elena Kagan pointed to other constraints in the law, 0:19:58.320 --> 0:20:02.120 including its instruction to the end CC that rural areas 0:20:02.359 --> 0:20:06.920 should get services that are reasonably comparable to urban areas. 0:20:07.840 --> 0:20:10.960 I mean, this is all basic stuff. These are not 0:20:11.200 --> 0:20:15.040 exorbitant things, These are not gratuitous things. This is just 0:20:15.080 --> 0:20:18.760 like the way the FCC has operated that program is 0:20:18.840 --> 0:20:22.080 consistent with the standards that have been set in this program, 0:20:22.280 --> 0:20:26.320 which is, these are providing basic services for people who 0:20:26.400 --> 0:20:29.160 live in North Dakota and for people who live below 0:20:29.200 --> 0:20:32.800 the poverty line. And by the way, as mister Clement said, 0:20:32.840 --> 0:20:36.720 those basic services benefit all of us because we should 0:20:36.760 --> 0:20:39.280 all be able to talk to people in North Dakota. 0:20:39.520 --> 0:20:43.320 Joining me is constitutional law expert Harold krant A professor 0:20:43.359 --> 0:20:47.119 at the Chicago Kent College of Law, Hew tell Us 0:20:47.160 --> 0:20:51.160 about this FCC program and the issue here. 0:20:51.640 --> 0:20:54.880 In the nineteen ninety six Congress passed the Toll Communications 0:20:54.880 --> 0:20:57.760 Act and said is a major part of that act 0:20:57.840 --> 0:21:02.760 to subsidize service to rural and low income areas. And 0:21:02.840 --> 0:21:06.399 so they thought was to get into the wired technology world, 0:21:06.720 --> 0:21:09.680 we have to bring all of the country together. And 0:21:11.040 --> 0:21:13.400 to do that, there are certain criteria that are set 0:21:13.520 --> 0:21:18.080 about how the FCC is supposed to determine how much 0:21:18.119 --> 0:21:23.080 sort of subsidy it gives to rural and low income areas, schools, libraries, 0:21:23.119 --> 0:21:26.400 and the like the following year. And there's certain kinds 0:21:26.440 --> 0:21:30.560 of intelligible principles or principles set into the statutes, such as, 0:21:30.960 --> 0:21:34.000 quote the quality service ship to be available at rates 0:21:34.440 --> 0:21:37.760 and that access to advanced technology quote should be available 0:21:37.800 --> 0:21:40.760 in all regions of the country. So that's the basic 0:21:40.840 --> 0:21:45.600 construct and the first argument in the cases whether that 0:21:46.240 --> 0:21:49.440 suffers under the non delegation doctrine because it's too open ended, 0:21:49.480 --> 0:21:52.000 it's too vague, and it gives a lot of discretion 0:21:52.200 --> 0:21:54.439 to the FCC. 0:21:55.040 --> 0:21:57.920 Explain the non delegation doctrine. 0:21:58.000 --> 0:22:01.240 So under the non delegation doctrine the Court in the 0:22:01.320 --> 0:22:05.160 nineteen thirties and has given lip service since. Has held 0:22:05.200 --> 0:22:09.600 that if Congress doesn't specify the standards under which executive 0:22:09.600 --> 0:22:12.520 agencies should act, that they may have given away their 0:22:12.560 --> 0:22:17.280 own legislative authority and therefore violated Article one of the Constitution. 0:22:17.760 --> 0:22:20.440 And there are a number of cases in which statutes 0:22:20.520 --> 0:22:23.480 were struck down in the nineteen thirties and since then 0:22:23.520 --> 0:22:27.000 the Court has cited to the non delegation doctrine. About 0:22:27.040 --> 0:22:29.960 five justices argued that it should be come back and 0:22:30.480 --> 0:22:33.160 be more actively enforced in some way, and they've used 0:22:33.200 --> 0:22:36.440 it mainly as a way to limit delegations by reading 0:22:36.480 --> 0:22:39.680 delegations more narrowly to what what they say would otherwise 0:22:39.720 --> 0:22:44.520 be an excessive delegation issue. So this has been part 0:22:44.640 --> 0:22:48.480 of the war on administrative agencies, is to suggest that 0:22:48.560 --> 0:22:53.000 Congress can't give open ended delegations to them, even though 0:22:53.440 --> 0:22:57.399 there are many open ended delegations in the statute books. 0:22:57.480 --> 0:23:01.520 So on this first point, there was an argument about 0:23:01.560 --> 0:23:05.240 how Congress simply hadn't done this job. It gave too 0:23:05.320 --> 0:23:09.600 much discretion, in other words, to the agency to determine 0:23:10.040 --> 0:23:13.960 how much to subsidize to rural areas and to lowing 0:23:14.000 --> 0:23:18.320 preme areas, and how much then for fees to impose 0:23:18.400 --> 0:23:22.679 upon the national telecoms. A good example of this is 0:23:22.680 --> 0:23:27.320 a question that was raised by Justice Gorsuch. He said, 0:23:27.320 --> 0:23:32.000 what about forcing everybody to have some kind of access 0:23:32.000 --> 0:23:36.000 to stylink elon Musk's sail life service. And his point 0:23:36.040 --> 0:23:39.440 was just to show that, you know, maybe that's within 0:23:39.480 --> 0:23:44.320 the literal terms of the statute, and therefore it's very problematic. 0:23:44.359 --> 0:23:46.000 And he also said the fact that this is a 0:23:46.080 --> 0:23:52.440 tax also suggests that the delegation should be more narrowly construed. 0:23:53.080 --> 0:23:58.000 Justice Kavanaugh asked an interesting question about whether delegations to 0:23:58.080 --> 0:24:02.159 independent agencies, which we think the FCC is, whether that 0:24:02.200 --> 0:24:05.800 should be construed more narrowly because of the lack of 0:24:05.960 --> 0:24:09.480 presidential control. So usually the some of the more interesting 0:24:09.600 --> 0:24:14.959 questions on the excessive delegation question that was raised. At 0:24:14.960 --> 0:24:17.480 the end of the day, it seems as if the 0:24:17.520 --> 0:24:23.439 Supreme Court will reject the excessive delegation argument. And indeed, 0:24:23.480 --> 0:24:28.160 what's probably interesting that bear's stress here is that President 0:24:28.240 --> 0:24:31.840 Trump has defended the delegation right, even though he was 0:24:31.880 --> 0:24:35.040 on a crusade against administrative agencies. Now that he's in 0:24:35.080 --> 0:24:38.000 a White House, he may be singing a different tune 0:24:38.359 --> 0:24:42.600 in his administration than defend this under the traditional intelligible 0:24:42.600 --> 0:24:47.480 principle task, which asked whether Congress has articulated sufficient guidance 0:24:47.880 --> 0:24:52.439 to restrain the conduct of the administrative agencies, and the 0:24:52.440 --> 0:24:56.840 principles we discussed earlier in the statute apparently satisfy that 0:24:56.880 --> 0:25:00.600 in terms of the Trump administration, and many the justices 0:25:00.960 --> 0:25:03.240 seem to be satisfied with that as well. 0:25:03.720 --> 0:25:07.120 So does it seem as if there might be three 0:25:07.240 --> 0:25:13.600 votes Gorsuch, Alito, and Thomas against this program, and that 0:25:13.640 --> 0:25:16.800 the liberals and the conservatives that are more in the 0:25:16.840 --> 0:25:19.919 middle of the court would vote to uphold it. 0:25:20.680 --> 0:25:23.280 That's my best guess. I mean Justice kevinaugh might be 0:25:23.520 --> 0:25:27.680 on the dissenting side as well. Justice Barrett had some concerns, 0:25:27.680 --> 0:25:30.240 but I think at the end of the day, the 0:25:30.280 --> 0:25:33.840 Chief Justice and Justice Barreit will vote to uphold the program. 0:25:33.920 --> 0:25:37.920