intellectual-property computer artificial-intelligence
What IP law would apply to trained weights of an AI model?
<p>In simple terms, any AI system will consist of three elements:</p>
<ol>
<li>Code, written by humans, that defines the mathematical model</li>
<li>The mathematical model itself, as it exists within the computer</li>
<li>The model weights, millions or billions of parameters that are tuned by the training process</li>
</ol>
<p>As far as intellectual property law is concerned, I think I know how the first two would be handled:</p>
<p>The code is a creative expression by the coders, and so copyright would apply.</p>
<p>The mathematical model is defined by the code, but can be expressed in other ways.  Here is a diagram of the structure of such a model, <a href="https://www.nature.com/articles/s41598-019-47193-6" rel="nofollow noreferrer">that along with the paper it is in</a> should allow one to recreate the model without creating a derivative work of the actual code that was used to create it in the first place.  I THINK patent law not copyright would apply to this element.</p>
<p><img src="https://media.springernature.com/m685/springer-static/image/art%3A10.1038%2Fs41598-019-47193-6/MediaObjects/41598_2019_47193_Fig1_HTML.png" alt="Image of AI model used for cell types" /></p>
<p>The weights I am not sure of.  These have been generated without any human creativity, the model has been run against large amounts of data and the weights built up.  This is however a very expensive process, costing lots of computer time with means electricity.  Would there be any intellectual property law that applies to these weights?</p>
<p>This is particularly relevant now as the 65B weights for Facebook LLAMA have leaked.  My understanding is that Meta has released the code under a <a href="https://github.com/facebookresearch/llama/blob/main/MODEL_CARD.md" rel="nofollow noreferrer">non-permissive no commercial use licence</a>, and only released the trained weights for much smaller model.  This leak allows anyone technically to run the full model (if they have a $20k graphics card, or do it &quot;on the cloud&quot;).  However could they do it legally?  Assuming they could recreate the model without creating a derivative work (perhaps using <a href="https://en.wikipedia.org/wiki/Clean_room_design" rel="nofollow noreferrer">clean room techniques</a> ) could someone use this model without restrictions?</p>

<h2>there might be patents to the methodology used to get the AI to learn</h2>
<p>A methodology can be patented, and thus limited in who may use this particular way.</p>
<h2>The base code is copyrighted</h2>
<p>The base code of the AI, which makes the computer evaluate different outcomes and test the inputs against its outcomes is copyrighted by the making company.</p>
<h2>The pure product of AI is uncopyrightable and unpatentable</h2>
<p>the US Copyright office declared that AI products do not have an author. <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/klpygnkyrpg/AI%20COPYRIGHT%20decision.pdf" rel="nofollow noreferrer">As such, AI-generated expression does not benefit from any copyright.</a></p>
<p>Likewise, the USPTO has declined multiple <a href="https://www.brookings.edu/blog/techtank/2022/08/25/patents-and-ai-inventions-recent-court-rulings-and-broader-policy-questions/" rel="nofollow noreferrer">applications in which an AI was listed as the sole inventor</a>. <a href="https://www.federalregister.gov/documents/2023/02/14/2023-03066/request-for-comments-regarding-artificial-intelligence-and-inventorship" rel="nofollow noreferrer">Their current stance is, an AI can't be an inventor, if anything the human feeding the AI could be one.</a> This is based on a 2012 case, <a href="https://scholar.google.com/scholar_case?case=8123691441658588112" rel="nofollow noreferrer">in which the SCOTUS decided that an individual is always a human.</a></p>
<p>As such, AI-generated weigts can <strong>not</strong> be copyrighted or patented.</p>
<h2>The weights might be trade secrets</h2>
<p>It's unclear if the weights are the product of a human maker using an AI as a tool, or a pure AI work. As such, their copyright status is unclear.</p>
<p>However, they might be protected as <a href="https://www.wipo.int/tradesecrets/en/tradesecrets_faqs.html" rel="nofollow noreferrer">trade secrets</a>, and as such disclosure, acquisition and usage of them could be illegal. Trade secrets and their products are generally licensable.</p>
