Comment by semiquaver
18 hours ago
> The US Copyright Office confirmed this in January 2025, and the Supreme Court declined to disturb it in March 2026 when it turned away the Thaler appeal. Works predominantly generated by AI without meaningful human authorship are not eligible for copyright protection, and that rule is now settled at the highest judicial level available.
Misstates the law. Denial of certiorari can happen for many reasons unrelated to the merits and does not settle the issue nationwide.
From TFA:
> When the Supreme Court declined to hear the Thaler appeal in March 2026, it did not endorse the lower court's reasoning or settle the question nationally. Cert denial means the Court chose not to hear the case, nothing more. What it does mean is that the DC Circuit's ruling stands, the Copyright Office's position is intact, and no court has yet gone the other way.
Your quoted text is no longer in TFA.
Because the author acted on that comment.
c.f. OP’s comments in this thread.
Also, I don't think there is any example testing the conclusion. There is no case to point at that any of the factors they listed are sufficient to convey authorship. Would love to be pointed to a case where rejecting decisions and redirecting to a different approach was deemed human authorship. What we do know is that you can disclaim the part of the code a human didn't author. In fact, the Copyright Office requires you disclose and disclaim. If anyone out there has more factual and citable sources please share.
It's in fact the opposite from what I've read. In one of the supreme court cases cited by the copyright office itself in its opinion of AI works (https://en.wikipedia.org/wiki/Community_for_Creative_Non-Vio...) it is deemed that just you advising something to do the work for you, giving criticisms and revisions, isn't enough for authorship or co-authorship.
While it's not code related, the copyright office's opinion is a good read and I don't see any reason to believe it's opinion is different for works of text vs works of physical art: https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...
You are right that no court has yet ruled that a specific set of human contributions to AI-assisted work was sufficient to establish authorship. What exists is the inverse: the Copyright Office has granted partial registrations where human-authored elements were separated from AI-generated elements, as in Zarya of the Dawn, where the human-written text was protected but the Midjourney images were not. The Allen v. Perlmutter case pending in Colorado is the first direct judicial test of whether iterative prompting and editing can constitute authorship. Until that decision, the positive threshold is genuinely unknown. The piece reflects this in the calibration section at the end, though your point is worth adding to the authorship discussion more explicitly.
Lets hire humans as pAIrrots? They see it, they rearrange it, they rename variables and then they "authored" it. What a job- to start for as junior, but if you understand whats happening, you may augment the AIs code by giving "feedback" with enough time.
Ah the infamous "no I wrote it myself" submission in university coursework. Usually gets you a free visit to the guidance counsel and a bonus free mark (on your three strikes and you are out plagiarism form).
Free water but not electricity? I'll just hook up a generator to the shower...
These sorts of simplistic loopholes rarely work. Imagine if you could get copyright for the linux kernel by just rearranging it and renaming a few variables.
I wonder how much of linux and *BSD is in the windows kernel.
> meaningful human authorship
How is this defined? Is my code review "meaningful" ? Are my amendments and edits to the generated code "human authorship" ?
From the article:
> Specifying an objective to the model is not enough. Directing how the work is constructed is what counts.
That still sounds incredibly vague and open for interpretation. For example, is setting up md files defining how you want things to be written enough?
That's interesting but how is anyone supposed to prove it? They would have to get their hands on your prompts.
2 replies →
read the article?
But it means that the appellate decision will retain precedence, no? Wouldn’t losing precedence be the primary legal effect of overturning that decision? All case law that hasn’t touched the Supreme Court could theoretically be challenged, but most of it isn’t, and it’s considered the law until it isn’t anymore, right? How would this be any different?
The decision is binding only within the jurisdiction of the Court of Appeals for the D.C. Circuit.
So it’s not correct to say “because SCOTUS denied cert, Thaler is now binding national copyright law.”
Practically speaking, it is binding on the US Copyright office (one of the parties in the case) in CADC. And that’s important. But copyright litigation happens all across the country, while this ruling only directly constrains the relatively small number of cases within CADC.
Although this decision is not binding in other circuit courts, this decision still is something that you can bring to a judge in other courts. They are not required to follow this ruling because they are not in that circuit. However, they still will consider what other courts have said and that will be incentive to think hard before they do something different. A judge who does something different is generally expected to write up a reason why they did something different, and that's something that would be given to an appeals court if they do do something different for consideration of why the other court was wrong.
Yes, I didn’t imply national precedence. I imagine it would also signal to attorneys appealing cases other circuits that the same challenge will likely yield the same result.
Fair and correct. Cert denial means the Court declined to hear the case, not that it endorsed the lower court's reasoning or settled the question nationally. The DC Circuit ruling stands and the Copyright Office's position is consistent, but that is stable doctrine rather than Supreme Court-settled law. Updated the piece to reflect this distinction accurately.
Since this is a tech audience... the Supreme Court uses a bounded priority queue. An unbounded queue would risk growing impractically large.
There are some kinds of cases where the Court has "original jurisdiction," meaning they must hear them, but those are very rare.
It does settle the law in as far as maintaining the status quo.
The Supreme Court declining to take up an issue is taking a position.
Now different circuits can take a different view of the same issue. This is a common reason why the Supreme Court will grant cert: to resolve a circuit split. Appeals court judges know this and have at times (allegedly) intentnionally split to force an issue to the Supreme Court.
Even without settling the issue appeals courts will look at how other circuits have ruled and be guided by their reasoning, generally. The fact that the Supreme Court declined to grant cert actually carries weight.
No it is not.
United States v. Carver, 260 U. S. 482, 490 (1923).
Moreover, SCOTUS does not decide issues, they decide cases.
Upjohn Co. v. United States, 449 U. S. 383, 386 (1981).
the real issue is that the Thaler case was a different question: "Can AI be an author?" and the lower Court said no and SCOTUS left it along. But the question of "what is enough for the human to be the author" wasn't even part of the case. That is completely own checked.
Logically, I think there's a big difference between code which was produced from a simple generic prompt without other input vs code which was produced from a multiple complex prompts with large existing code as input.
When I'm feeding AI my code as input and it ends up producing new code which adheres to my architecture, my coding style and my detailed technical requirements, the copyright over the output should be mine since the code looks exactly like what I would have produced by hand, there is no creative input from the AI. It's just a code completion tool to save time.
I understand if someone leaves an LLM running as an agent for multiple days and it produces a whole bunch of code, then it's a very different process.
Fair point and worth being precise about. Cert denial is not meaningless: it leaves the lower court ruling intact, it signals the Court did not find the issue urgent enough to resolve now, and as you note, other circuits will look at the DC Circuit's reasoning. What it does not do is bind other circuits or establish Supreme Court precedent. The distinction matters here because if a Ninth Circuit case involving AI-generated code reaches a different conclusion, that circuit split would be live law regardless of the Thaler cert denial.