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The Judges' Book

Abstract

Our implicit image of progress, and the standards we use to calibrate the value of human contributions to that progress, are quietly at risk from the onslaught of AI. AI has the potential to significantly shrink the pool of information and creative work protected by IP, particularly shrinking the protectable space for the work of human contributors.

The changes wrought by AI raise existential questions for society’s conception of human invention. I use the term “existential” here not in the modern sense of threatening something’s existence, but rather in the broad sense of philosophical existentialism, as being concerned with exploring the meaning and value of human existence. In this case, the concerns are the purpose of intellectual property and its implications for the value of human invention.

Throwing our shoes into the machinery in hopes of stopping its gears from grinding will not avert AI’s changes. The march of technology rarely retreats. Nor should fears about AI taking over the world be conflated with the task of defining the boundaries of intellectual property. Intellectual property’s theoretical concepts aren’t designed to bear such weighty burdens, and the doctrines have largely avoided taking on the heavy mantle of morality in the United States. Such a role is more fitting for the regulation of technology in other domains, such as labor laws protecting industrial-revolution workers, criminal codes outlawing possession of burglar’s tools, or conditions on federal funding of human germline gene-editing research.

In the same vein, one should resist the all-too-human instinct to insist on the primacy of our own contributions to innovation. The measure of human contribution to intellectual property in no way reflects the measure of ourselves as human beings. Nor will acknowledging the changes brought by technological advancement diminish us as human beings. After all, technological advancement is a product of human innovation— not a replacement or substitute for it.

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