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As a retired attorney with over 39 years of trial experience and as an author, photographer, and blogger, I became interested in the issues of intellectual property law well before computer programs and the internet became legal issues. My technological background also dates back to the 1970s when computers filled an entire floor of the engineering department at the University of Utah. With my interest and background, I taught copyright law to both students and to my fellow lawyers in Arizona. Concurrent with my legal career, my genealogical background goes back more than 40 years.
Because I am a retired attorney and no longer practice law, none of what I say in this post should be treated as legal advice for any particular legal issue.
Now that said, the current media interest in the significant advances in artificial intelligence has highlighted some new legal issues primarily concerning copyright law. To begin this exploration, it is necessary to refer to some of the Federal statutes that pre-exist the advent of personal computer use.
First of all, copyright is solely a federal issue. The right to own a copyright on intellectual property begins with two provisions of the U.S. Constitution.
Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution: Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
For more information about the origins of copyright law, see the following:
Stanford Copyright and Fair Use Center. “US Constitution,” April 8, 2013. https://fairuse.stanford.edu/law/us-constitution/.
Congressional interest in copyright law began on May 31, 1790 with the enactment of the first copyright law is enacted under the new United States Constitution. The new law is relatively limited in scope, protecting books, maps, and charts for only 14 years. These works were registered in the United States District Courts.
“History and Education | U.S. Copyright Office.” Accessed November 11, 2023. https://www.copyright.gov/history/.
Of course, I could write a book about copyright law but for this exploration, I will jump to 1976 when the fourth general revision of the copyright law was passed extending Federal protection to "all works, both unpublished and published, once they are fixed in a tangible form."
“Timeline 1950 - 2000 | U.S. Copyright Office.” Accessed November 11, 2023. https://www.copyright.gov/timeline/timeline_1950-2000.html.
The next major copyright date is March 1, 1989 when the United States joined the Berne Convention. The practical application of joining the Berne Convention is that copyright claims exist without any formal notice. In other words, you have a claim of copyright even though there is no symbol or other notice on your work.
Now we come to artificial intelligence or AI. Before I get into the legal issues of AI, I have to acknowledge that Google has a convenient way to research federal and state court cases. The app is called Google Scholar. It doesn't have the bells and whistles of WestLaw.com or LexusNexus.com, but it is free to use.
As I said above, copyright and other intellectual property claims can only be filed in federal courts. So, for a practical reality check, the initial cost of filing something such as a violation of copyright claim would be into the tens of thousands of dollars.
A quick search of the federal court cases for "artificial intelligence" from Google Scholar brings up only 675 results. This doesn't mean that there are that many cases where the issue was AI, all it means is that the term showed up in that many cases. Oh, what if I add in the term "genealogy"? The total number of cases drops to 23. Then I add in a filter limiting the search to the last five years. Well, that ends this discussion quickly. There are no cases where genealogy and artificial intelligence were the topics. If I remove "genealogy" as a search term and leave the filter at after 2020, then the number jumps up to 338 cases.
As you would imagine if you understood the economics of bringing a federal lawsuit, the parties that show up in this list include companies such as Google, Reuters, National Security Commission on Artificial Intelligence, Amazon, McDonald's, Apple, TIKTOK, Microsoft, and so forth. So, what does this mean for genealogists?
Now, I add "copyright" to the list of cases and the number drops to 52 cases. So, if you were listening to the news, you would think that AI and copyright issues were really important. However, the number of cases over the past four years would seen to indicate otherwise. In addition, if I limit my search to the Supreme Court of the United States, there are only five cases. None of these cases involve issues that are currently being discussed in the news. Maybe four years is too soon for cases of this nature?
So, my only conclusion at this time is that it is too early to see if any of the issues that are being discussed in the online news stream turn out to be real legal issues that make their way to the Supreme Court. Of course, this doesn't mean that there will not be litigation is the future or that some cases may be wending their way through the District Courts, but right now there is nothing in the decided cases to talk about. There is one case about copyright but it is not about AI so much. See Google Llc v. Oracle America, Inc., 141 S. Ct. 1183 (Supreme Court 2020).
