Companies should ensure they do not infringe on the copyrights of underlying works that are used to train generative AI tools.
Generative AI systems are trained on large datasets that can include works that are themselves protected under US copyright law. That raises the possibility that outputs from generative AI tools could infringe on the copyrights of those underlying works. Certain outputs generated with the assistance of an AI tool would almost definitely constitute copyright infringement.
Understanding this is particularly important for businesses that use generative AI tools to write software code for use in products.
The output from a generative AI tool does not have to be an exact replica to infringe on the copyright of the original work. The output may infringe if it is deemed derivative. For example, if someone prompted a generative AI tool to use the characters and themes from the first seven Harry Potter novels to write an eighth novel in the series, the resulting work would almost certainly be considered a derivative work under the Copyright Act and constitute infringement.
Businesses can take three steps to mitigate the risk of copyright infringement when using generative AI tools to write software code.
- Get a license or a representation and warranty from the provider of the generative AI tool ensuring that the source works on which the tool is trained are licensed — and that the license extends to you, the user.
- Run a source code audit program to analyze any code you create using generative AI tools to determine whether it is similar to any other code, open source or otherwise. If it is, you can take steps to comply with the relevant open source license or excise the code. Importantly, running a source code audit program can itself be evidence against a claim of willfulness in a copyright action.
- Conduct due diligence on the provider of the generative AI tool to understand what source materials it uses. Some generative AI tools may give users a degree of choice in determining what training materials are included when they use the tool.
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