Do AI contributions nullify the FSL's usage restrictions?

[timfish]

I have seen lots of recent discussions around legal precedent that means AI works might not be copyrightable in the US:
https://www.theverge.com/policy/887678/supreme-court-ai-art-copyright

If this is in fact true/how things work out, does that mean that if AI writes code for an app or library that is licensed under the Functional Source License, or any other license with usage restrictions, that license becomes unenforceable because there is no copyright?

[MattiSG]

This is not specific to the FSL, but concerns every code to be licensed. Yes, my understanding is that the lack of authorship for AI-generated code means that no author rights are conferred, and thus it cannot be licensed as it is public domain.

This is not specific to the US: the Generative AI and Copyright report requested by the European Parliament's Committee on Legal Affairs specifies (page 93):

Given this framework, it follows that purely AI-generated outputs—those created automatically by an AI system without substantial human intervention—are not eligible for copyright protection in the EU. Such outputs are considered to fall into the public domain, making them freely available for anyone to use, reproduce, or adapt without seeking permission or providing attribution. The legal and commercial implications of this are significant. For creators and companies investing in AI systems that generate music, art, or text, there is no proprietary right over the final output unless a human has contributed in a way that meets the “intellectual creation” standard.

[chadwhitacre]

Thanks for the EU link, @MattiSG.

a human has contributed in a way that meets the “intellectual creation” standard

This is the contest now. US Copyright Office said a year ago that prompting alone wasn't enough (e.g. p 8). But what about code review?

(Working on a blog post on this btw, pub date scheduled for next Tuesday so quite timely. :)

[ljharb]

That would probably depend on whether code review resulted in a subjectively-determinable significant/major change.

[chadwhitacre]

Very up in the air at the moment, it seems.

[ljharb]

So if you're conservative, you'd want to avoid accepting anything AI has touched - if you're lackadaisical, then you can merge anything. Most of us will be somewhere in the middle; hopefully more on the conservative side.