34 comments
This area is so relatively new that SCOTUS is going to let it percolate through the lower courts (using the various circuits as laboratories to try out several approaches) and then address the issue once it is mature and a good circuit split has developed.
Nothing out of the ordinary, and nothing to lose sleep over at this point. "Move along."
If SCOTUS is saying that AI works, even those co-authored by humans, are not eligible for copyright/patenting;
Doesn't that mean any code-base that uses AI generated code does not have an implicit copyright holder? And thus even the human constructor does not have the right to apply any license [closed/open] onto it whatsoever?
> If SCOTUS is saying that AI works, even those co-authored by humans, are not eligible for copyright/patenting;
They aren't.
The copyright office isn't either.
Everybody is very explictly saying that if you use say Sora to generate an image and you apply for a copyright with "Sora" as the author it'll be denied.
Same as if you apply for a copyright with "My Dog" as the author.
Authors must be humans and if you do not fill the author field out with a human it's denied. This has nothing to do with the tool used to create the art work.
While I would like to believe you, doesn't this legal document linked by the article show that, in at least one of the cases, the author WAS trying to apply with himself, "Mr. Allen", as the author? And not the AI?
https://fingfx.thomsonreuters.com/gfx/legaldocs/byprrqkqxpe/...
Allen's case has not reached the Supreme Court. The Copyright Office said he could have copyright of what he authored. But he refused to disclaim what Midjourney generated.
> Doesn't that mean any code-base that uses AI generated code does not have an implicit copyright holder? And thus even the human constructor does not have the right to apply any license [closed/open] onto it whatsoever?
besides copyright, source code also can be protected as a trade secret.
For a company with any decent number of people with access to the code base, extremely difficult to maintain that type of protection.
I mean trade secret as a legal protection: code is declared as trade secret. Then if employee leaks it, and other company uses it, it can be sued.
It is not that simple. To have that protection, it needs to be treated (and protected) like an actual secret.
It’s why the nominal ‘top secret’ coke formula is stored in a giant vault.
If everyone at the company has access (and it’s a big company), good luck having that protection.
https://www.wipo.int/web-publications/wipo-guide-to-trade-se... is likely a good source for the "what constitutes trade secret"
To enjoy trade secret protection, the above mentioned three criteria (i.e., secrecy, commercial value because of the secrecy, and reasonable steps taken by trade secret holders to maintain secrecy) must be complied with (see section 2.1 for the criteria to be met).
Trade secrets can be protected for an unlimited period of time, unless they cease to meet the criteria for trade secret protection.
Trade secret holders can seek protection only where unauthorized disclosure, acquisition or use of their trade secrets is made in a manner contrary to honest commercial practice. In other words, they do not enjoy the type of “exclusive rights” that are generally available for other categories of IP. This will be discussed in the next section.
There's also a section on trade secrets and digital objects... which includes code ... and that gets into other challenges.
https://www.wipo.int/web-publications/wipo-guide-to-trade-se...
Copyright is another form of intellectual property protection available to code and algorithms. However, it should be noted that certain jurisdictions do not permit an owner to assert both trade secret and copyright, especially if the copyrighted software discloses a majority of the source code or the “proprietary” portions. In the Capricorn case, the court held that the source code owner was barred from asserting trade secret protection because the code was also registered as a copyright, and thus available to the public. Therefore, the source code owner should carefully consider the pros and cons of each type of protection.
https://www.wipo.int/web-publications/wipo-guide-to-trade-se...
> One of the things there though is that trade secrets don't have exclusive rights. If you write code and then distribute the application, trade secrets don't protect it anymore.
which source says this?
https://www.wipo.int/web-publications/wipo-guide-to-trade-se...
Section 3.2
> As mentioned above, code is the language used to write software programs, contains the implementation details of algorithms and can reveal crucial business information about how data is processed and utilized. Unless an open-source strategy is pursued, protecting the confidentiality of code and algorithms is paramount to prevent unauthorized individuals from understanding or reverse-engineering proprietary software in order to build and defend competitive edges over competitors. In practice, techniques such as code obfuscation, encryption, and strict access controls are applied to maintain the confidentiality of code (and the algorithms behind it) and to prevent unauthorized access or copying.
> There are some industry-specific implications, but it is generally far less common to share code and/or algorithms between businesses than, for example, sets of processed data. This indicates and emphasizes the commercial value attributed to, and the level of secrecy applied to, code and algorithms and opens a primary playing field for digital data trade secrets.
> Copyright is another form of intellectual property protection available to code and algorithms. However, it should be noted that certain jurisdictions do not permit an owner to assert both trade secret and copyright, especially if the copyrighted software discloses a majority of the source code or the “proprietary” portions. In the Capricorn case, the court held that the source code owner was barred from asserting trade secret protection because the code was also registered as a copyright, and thus available to the public. Therefore, the source code owner should carefully consider the pros and cons of each type of protection.
Key there is the distribution under copyright may conflict with trade secrets. Additionally, this is sharing internal code. {BigCorp}'s build setup may be a trade secret for how it integrates certificates into the final build. However, the code and the final build are likely covered under copyright. Trade secrets don't prevent me from decompiling an application that I've legitimately received and publishing the jump tables for internal calls (the classic Undocumented Windows: A Programmers Guide to Reserved Microsoft Windows Api Functions).
Additionally 1.3 in https://www.wipo.int/web-publications/wipo-guide-to-trade-se...
> Trade secret holders can seek protection only where unauthorized disclosure, acquisition or use of their trade secrets is made in a manner contrary to honest commercial practice. In other words, they do not enjoy the type of “exclusive rights” that are generally available for other categories of IP. This will be discussed in the next section.
> ...
Section 2.2
> Trade secret protection does not grant exclusive rights on the protected information, but regulates the behavior of parties and prevents others from engaging in wrongful conduct that is against honest commercial practice. In essence, when unauthorized third parties acquire, disclose or use trade secret information with unlawful, improper, dishonest or unfair means, it is deemed misappropriation of trade secrets.
> In general, a trade secret owner cannot prevent others from independently developing and acquiring the protected information on their own and from using or disclosing that information. This is because conducting one’s own R&D or own market analysis etc. to develop valuable information is usually deemed honest commercial practice. However, once a patentee X obtains a patent on its invention A, in principle, another person Y using the same invention A infringes the patent, even if Y came up with the invention A independently by its own, without any knowledge of the invention of the patentee X. Therefore, trade secret protection does not confer exclusive rights like patent protection does.
I have two issues with your citations:
1. I don't have time to read all this copy-paste.
2. Your citations express personal opinion of someone unknown without any grounding in any laws and cases in specific jurisdiction, thus not interesting.
The author is nominally Daren Tang of WIPO.
https://www.wipo.int/web-publications/wipo-guide-to-trade-se...
...
Trade secrets have been hidden gems for too long. It is time to bring them into the light, so that they can truly sparkle. Whether you are a policymaker or business manager, a researcher or entrepreneur, we hope this Guide helps you to see the power of trade secrets and the value they bring to businesses strategies and global innovation.
Daren Tang
Director General
World Intellectual Property Organization
The documentation about the organization is at https://www.wipo.int/en/web/about-wipo
The World Intellectual Property Organization (WIPO) is the United Nations agency that serves the world’s innovators and creators, ensuring that their ideas travel safely to the market and improve lives everywhere.
The World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT) is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides additional protections for copyright to respond to advances in information technology since the formation of previous copyright treaties before it.thank you for all your irrelevant citations and speculations.
the question is still open if that guide is grounded into US legal landscape in any way. Unlike good quality legal literature which grounds every statement into law or case law, that guide does nothing.
The part "Copyright is another form of intellectual property protection available to code and algorithms. However, it should be noted that certain jurisdictions do not permit an owner to assert both trade secret and copyright, especially if the copyrighted software discloses a majority of the source code or the “proprietary” portions. (2)" provides a link to Capricorn Management Systems, Inc. v. Government Employees Insurance Co.
The decision can be read at https://cases.justia.com/federal/district-courts/new-york/ny...
That decision is about if something can be both a trade secret and copyrighted.
> That decision is about if something can be both a trade secret and copyrighted.
I think you completely made up this part. My reading is that court said that Capricorn failed to met criteria to establish trade secret and even violation didn't happen at all. Also, it was district court ruling which doesn't establish any case law.
* Capricorn did not treat Supercede as confidential.
* merely listed functionalities of Supercede and did not allege how such functionalities constituted a unique trade secret.
* DePace, Capricorn's primary coder of Supercede, did not believe Defendants had copied Supercede,
claude says one needs to take "reasonable steps", which includes asking employee to sign NDA, setting access control, and putting TRADE SECRET disclosure in source files: https://ipwatchdog.com/2025/12/02/fourth-circuit-clarifies-r...
That hinges on whether you can convince a judge that your LLM's slop meets the requirement of being inaccessible to other professionals of the same field, and that committing it to your repo meets the bar for keeping it secret.
I wouldn't hold my breath.
This would only apply if the codebase were 100% vibe coded. If there is human input - as there is in code, with the role of the software engineer, then it falls into another category for the sake of copyright arguments. And the way it works is copyright is granted automatically and only revoked/denied through litigation.
Given how the models were trained for coding, every single code base that uses any code generated by an LLM should be required to be open sourced, or at least source available.
I'm not saying there is currently a legal president to enforce this, I'm saying ethically it make sense.
I pretty much agree with you in principle, but I'm also positive this will never happen.
Definitely not.
Apparently copyright and licences only matter until a mega corporation stands to loose billions thanks to their blatant theft. Then nobody cares. But you're suppose to feel bad for pirating the latest season of Stranger Things.
There's going to be a spectrum here, but for some of these new pilot projects like vinext where the claim is primary AI authorship I would expect the resulting works not to be copyrighted.
What does that mean? I don't know. They are claiming copyright over vinext and licensing it under MIT, a copyright-based license. So the license and the copyright both get swept away in the flood there and what's left is a formerly-copyrighted software duplicated as a work [in the public domain?] [that nobody can legally use?] [that the author can legally use but not legally license?]
Choose your own adventure, now with copyright law!
That's the position I came to based on these rulings, or lack thereof. I think of all the reasons open source shouldn't accept AI created code is that it can't be protected, and that has the potential to threaten the whole project.
OpenClaw, for instance has an MIT license [0], but, per the creators own words, they didn't even review the code. OpenClaw isn't MIT licensed, the MIT license relies on copyright, and because there was not even human review of the majority of the code, no substantial human input, that code base can't be copyrighted.
No need to steal AI code, it doesn't belong to anyone.
[0] https://github.com/openclaw/openclaw?tab=MIT-1-ov-file#readm...
Hopefully.
Other coverage:
* The Supreme Court doesn't care if you want to copyright your AI-generated art https://www.engadget.com/ai/the-supreme-court-doesnt-care-if...
* U.S. Supreme Court declines to hear dispute over copyrights for AI-generated material https://www.cnbc.com/2026/03/02/us-supreme-court-declines-to...
* AI-generated art can’t be copyrighted after Supreme Court declines to review the rule https://www.theverge.com/policy/887678/supreme-court-ai-art-...
There is a huge difference between SCOTUS "declines to hear" versus SCOTUS "rules that ..."
Certainly there is no difference to these particular parties. But refusing to hear the case in such an important field as AI is simply an indication SCOTUS is feels it is too early for it to be making rules involving a very fast moving and transformative field as AI.
What it generally means is that the lower court ruling stands and serves as precedent nationwide. Binding precedent in the circuit that handed down the ruling. But another circuit may make a different ruling sometime, and then the Supremes practically have to hear the case to resolve the conflict.
True, but SCOTUS is not required to grant Cert even if a circuit split develops. They may feel the issue needs more time to "mature".
e.g. They may want more cases heard in the lower courts to provide them with a better 'flavor' regarding the nature of legal arguments being made; or more time for a rapidly changing business/social development to evolve and greater clarity emerges.
Or that the law is already settled… the ape selfie determined already authors must be human
Copyright trolls were probably licking their chops at the thought of copyrighting the output of common AI prompts.
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