Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

A high-tech solarpunk utopia in the Amazon rainforest, a Pikachu fine dining with a view to the Eiffel Tower, a mecha robot in a favela in expressionist style – if you are struggling to visualize any of these descriptions, an AI art generator could most likely help you out. All of the prompts are suggestions by , an open-source AI art generator launched in 2022 by startup .

As its name suggests, AI-generated art refers to art generated with the help of artificial intelligence. I like to use AI art generators to help visualize environments, such as where I would rather be writing this blog as the weather gets chillier in Toronto.

An AI-generated image of the prompt “a laptop and bubble tea on a table under a parasol at a Hawaiian beach during sunset, photorealistic” by Stable Diffusion.

Aside from being a fun tool for curious users to play around with, AI art generators serve as a for visualizing concept art and automating repetitive tasks. Furthermore, in more recent years, AI art has enabled artists to explore previously uncharted territory. For example, Lynn Hershman Leeson’s “uses algorithms, performance, and projections to draw attention to the inherent biases in private systems like predictive policing, which are increasingly used by law enforcement”.

Understanding “Open-source” AI-Generated Art

Similar to previous models, Stable Diffusion is a text-to-image generator (similar to and ). It differs from these models in that it is open-source, meaning that its underlying code and model has been trained on publicly available data. The motive stems from Emad Monstaque’s (Founder of Stability AI) that we will only realize AI’s potential to solve humanity’s biggest challenges “if the technology is open and accessible to all”. Stable Diffusion’s open model equips anybody with a web browser to generate images (including violent and pornographic ones) according to their prompts, including for commercial use.

Why Visual Artists are Concerned

Open-source AI-generated art can be seen as a threat to commercial artists in practically every industry. In , Greg Rutkowski, a Polish digital artist, spoke about the difficulties that have come with his artwork’s popularity in the world of text-to-image AI generators. Known for his distinctive ethereal style, Rutkowski found his style becoming one of the most commonly used prompts in Stable Diffusion. Initially, the artist thought this was an effective way to gain publicity until he realized through some Google searches that his name was becoming associated with work that was not his.

Rutkowski is not alone - more artists are beginning to see their artworks gain popularity with similar models and have . Others have raised concerns about data protection and privacy due to their artwork being either personal or linked closely to an existing person. These concerns have consequently about the potential for artists to opt out of the data training process. However, some say this would be impossible as it would involve throwing out the whole model “built around nonconsensual data usage”. Moreover, with the source code out in public, some are under the impression that it will be like “putting toothpaste back in the tube”.

While some companies and artists have been optimistic in their beliefs that AI will ultimately benefit humanity and generate new ideas for their careers, other artists are finding it necessary to build a coalition to fight back with proper regulations and protect the future of their professions.

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The age-old question on the use of free and open source software in the Italian Public Administration (PA) seems to be coming to an end. Last January the Agency for Digital Italy (Agenzia per l’Italia Digitale) opened a work and discussion table to all stakeholders, focusing on the comparative assessment pursuant to art. 68 of the Digital Administration Code (Legislative decree no. 82/2005). The table was closed last month. Now, the Agency will launch a public consultation and will adopt a final text for guidelines. These guidelines will provide the Italian PA with all the operational tools for acquisition of softwares.

Public administrations are expected to provide efficient public services to businesses and citizens across Europe, sharing software solutions, discussing good practice and exchanging their experiences. These are the goals of the programme on Interoperability Solutions for European Public Administrations (ISA) established by the European Commission and where the Open Source Observatory is hosted.

Italian PA is so obliged to give priority to free and open source software (this is common ground, pursuant to paragraph 1 ter of the above mentioned article 68), however, this preference can not be given without a “comparative evaluation”. In fact, one of the tasks of the Agency, for which the table has been set up, is indeed to establish procedures and criteria that will help to justify the choices of the PA in the acquisition of computer programs.

That said, every public body may now ask itself what really would make it different from any other person as to whether to acquire and release software under conditions of free and open source software. The answer is simple: nothing.

The PA, even when is an active subject in the design and implementation of software, and not only when limited to acquire it, basically is a user of the same. Barring exceptional cases, the purpose of the PA is to serve the community and the citizens according to their own goals and skills. For this reason, even when it makes use of external instrumental bodies, including those of non-public nature (such as joint ventures or wholly owned) the activity of the PA is never mainly directed at making profits or at the acquisition of a market position. The economic activity may be carried out only to achieve the satisfaction of the public interest pursued.

It is no exception if – directly or through any of the operational tools made ​​available by the administrative law – the PA makes designs, develops and distributes software; therefore the value of the software that is acquired or created is not of a commercial nature, nor is it the potential sale price of acquired rights on the software. This value lies in the use, namely the in the ability to make the administrative apparatus and the persecution of its own purposes more efficient for the concerned PA in an effective way. In other words, for the PA software is not a product, rather it is a service and not only in the sense on the rules of contracts of the PA, but in the sense given to it in the corporate world.

For the PA it is important that the software works in a consistent way with the purpose for which it was procured, what it is worth in itself is irrelevant. This leads to the conclusion that the return on investment is measured essentially in terms of efficiency. Efficiency which in turn must be measured both in immediate terms (saving of resources with an equal output or increased output utilizing the same resources), both in terms of long-term savings (lower investment for the update, adaptation, migration to the achievement of obsolescence or the appearance of more efficient systems), and – finally – in terms of positive effects to the general or local economy (“spillover effects”).

The PA has the right to acquire software under conditions of free and open source software. There is no doubt about this. Both in the case of a pure acquisition of pre-packaged software (generic), as a simple office application (typical examples: an Internet browser, a word processor, an email client or an operating system) but also if the software is being acquired by the PA through ad hoc customization, where there is a substantial economic investment and in which the software is subject to the rules on re-use.

All the above-expressed concepts have been upheld by the Italian Constitutional Court in 2010, with Decision no. 122 of 22 March. In essence, free and open source software do not refer to a particular technology, brand or product, but rather express a legal feature. What differentiates free and open source software from proprietary software is the different licensed rights on the program. Decision about the adoption of one or the other contractual setting belongs to the user, hence, to the Public Administration, with a strong preference to the free and open source software way.

(Published on��)

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In an from Wired Magazine, RCM’s Chief Financial Officer Marc Brule defends MintChip as a novel path in the realm of digital currency. The exact path has not be thoroughly defined, as the RCM is still in the early stages of research and development. Instead, they have issued a Developer Challenge to the public in order to gather new ideas and directions (a video of the challenge can be seen ). However, stated within the rules of the Developer Challenge – any submission must be the original work of the developer, and cannot violate any intellectual property, proprietary, privacy, or moral rights or another person/entity (for the complete rules click ). And this is where the question arises of whether such a submission would be copying the idea of Bitcoin.

Firstly, the two concepts differ in how transactions are controlled. The driving force behind Bitcoin, , was to create a form of money that was “convenient and untraceable, liberated from the oversight of governments and banks.” The creator, Satoshi Nakamoto, ensured that bitcoins would remain decentralized and out of government (or third-party) control by publicly distributing a real-time ledger of all transactions called a ‘block chain’. The public distribution ensured that all transactions were broadcasted to the network of bitcoin users to ensure legitimacy and prevent duplicate transactions. It was very clear that Nakamoto intended bitcoin to be an alternate form of currency – one that co-existed as a more attractive alternative than printed currency. On the other hand, the RCM’s intention is to create a centralized system of digital currency. In fact, the purpose of MintChip is not an alternative to printed dollars, but a substitute – Brule was quoted by saying, “MintChip could be the digital equivalent for cash for online transactions.”

Secondly, the concepts differ in how currency is made. The Bitcoin economy relies on the network of its users’ computers. The release of bitcoins is predetermined – an algorithm releases new bitcoins into the network at preset intervals to ensure that the monetary supply grows proportionately with the number of users. Around the year 2140, the currency would reach its prescribed limit of 21 million bitcoins. Though Brule did not comment specifically on the creation of new currency, the system appears to retain the status quo – in which the Bank of Canada would be responsible for maintaining the monetary supply. Therefore, both the control and creation of currency differs.

It is, however, possible to argue that the bottom line is the creation of a digital currency. Each system intends to bypass a printed form and utilize a system of currency in digital form that would be used to purchase and sell goods and services. Though the bitcoin concept is a community-driven open source project, problems would arise governing the intellectual property rights. In reviewing the MIT License, permission is granted free of charge to any person obtaining a copy of bitcoin and its associated files to deal in the software without restriction or limitation with the condition that all subsequent copies of the software must contain the Open Source Initiative. This would run contrary to the rules in the MintChip Developer Challenge, whereby it states that any submission will forfeit all intellectual property rights to the RCM in perpetuity. The challenge would lie in determining whether the software submitted had copied the bitcoin system in any meaningful fashion.

However, there is a further complication. The problem lies in the creator of the bitcoin system itself - Satoshi Nakamoto. Since April 2011, he had claimed he had "moved on to other things", and has not been heard since. All other attempts of ascertaining his identity through his posts in forums, email addresses, and website have failed (more on the identification of Nakamoto ). And while his legacy continues with the use of the currency, his identity remains a mystery.

Despite its infancy, I believe MintChip possesses fundamental differences from bitcoin - differences that mean it is unlikely to infringe upon the Open Source Initiative's intellectual property rights. However, because of its infancy, it remains difficult to predict its outcome, and should be closely followed as it develops.

Byron Tse is a JD Candidate at the Western University Faculty of Law.

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The idea for open-source textbooks is not new.�� In 2002, the attempted to produce a history textbook using .�� It was then estimated that such an initiative could save the State of California .�� However, to date, the project has yet to produce a complete book.�� In resurrecting the open-source textbook dream, Governor Schwarzenegger specifically asked developers to submit their digital textbooks to the ("CLRN"), which was established by California's Board of Education over 10 years ago to store online educational resources.

In response to the initiative, various nonprofit organizations and leading textbook publisher attempted to release material that would be up to CLRN's content standards.�� Surprisingly, the nonprofit organization seemed to fare the best, submitting seven complete books, which all scored particularly well, while when compared to the content standards.�� Interestingly, the highest rated books were almost always .

In addition, has expanded on the open-source textbook initiative by targeting college students.�� The company that it now has approximately 40,000 college students at 400 colleges who will use their digital textbooks this fall.�� Flat World Knowledge co-founder that the shift in demand to cheaper, digitally available textbooks is, in part, the result of college faculty realizing the significant financial burden placed on their students.�� He argues that by using the , faculty are unencumbered in the sense that any professor can simply register on Flat World's site and let students know the book is available.

However, others such as , author of , argue that the future in free online digital textbooks lies in the realm of , which would not only bring down the cost of textbooks, but also improve their quality.�� In fact, Sun Microsystems founded the nonprofit project, which is built on the platform and designed to allow users to create and change content through a user-friendly interface.�� However, Curriki's textbooks were among the lowest scoring of the book submitted to California's board of education.�� Curriki spokesperson that the low score was partly due to poor communication between the Board of Education and Curriki.

In any event, it appears that the use of open-source textbooks is slowly becoming a reality.�� It remains to be seen whether the digital textbook world will be populated by single authors, or whether the wiki-style textbooks will increase in quality such that��they are well suited for academic study.

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Prentice gives an account of how this could work in Google's favour by asking, "[i]f Google Wave, hypothetically, infringes a patent that IBM holds and they're found guilty of doing so, could they simply claim that the relative market value is zero because there are existing free OSS mail and IM solutions?" Matt Asay of CNET News calls it a "". It seems that the consequences of this damages provision will hinge on the interpretation of "relevant market". If open source Application X is capable of doing the same things as costly Application Y, but is geared towards a different user base or is meant to be used on different hardware, would it not be available as the comparison in a damages assessment for infringing Application Z, which is more similar to Application Y with respect to those factors? Another point to note is the potential difficulty of actually finding "sufficiently similar substitutes" that are themselves non-infringing, depending on how widely these terms are construed.

Even though Google's applications themselves may not have licensing fees, they will likely still be able to bring in revenue through other indirect means. It could be the case that this weakening of penalties against infringing software producers may have greater benefits for those larger companies that can afford to not rely on licensing fees, but rather on how their new open-source applications make use of and interact with their large established base of other products. Smaller companies that are just starting out often rely on the revenue directly generated from licensing fees in order to further their products, so damage awards are likely to be more crucial for them. Just because there are free alternatives to a particular product does not mean that no one is willing to pay for it. Users have preferences for intangible factors that cannot be summed up simply by the functions and code of a particular application. Perhaps a more reasonable damages assessment method would be to take into account existing non-open source applications as well as open-source ones that are both sufficiently similar, and to strike a balance as an estimate of lost revenue.

One thing that is not mentioned in the Act is the remedy of an injunction to stop making the infringing product available, which presumably continues to exist. Though in these types of cases an injunction could potentially have harsher consequences for the infringing party than damages, the owner of the patent being infringed would not likely feel an equally opposite benefit. Since software is relatively simple to copy, once it has been put out there in cyberspace, shutting off the source of the infringing software would not prevent it from continuing to be spread, and thus continuing to chip away at the market for the party with the original patented software.

Software patents have been�� in the policy realm for some time now. The��, though still somewhat unclear, can generally be viewed as a setback for the patentability of some forms of software, though it is currently under�� to the Supreme Court of the United States. It will be interesting to see the outcome of that decision as well as the outcome for the proposed Patent Reform Act of 2009. If Google truly does have the type of plan speculated by some bloggers, it will surely be watching very closely.

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Proponents of the proposal argue that extending consumer protection would give consumers a broader choice of software.�� Bruce Schneier, an American computer security specialist, that

"[t]here's no other industry where shoddy products are sold to a public that expects regular problems, and where consumers are the ones who have to learn how to fix them. If an automobile manufacturer has a problem with a car and issues a recall notice, it's a rare occurrence and a big deal - and you can take your car in and get it fixed for free.�� Computers are the only mass-market consumer item that pushes this burden onto the consumer, requiring him to have a high level of technical sophistication just to survive....�� The key to fixing this is software liabilities."

However, critics argue that extending protection would limit consumers' choices.�� Further, "creators of digital goods cannot predict with a high degree of certainty both the product's anticipated uses and its potential performance," and that extending consumer protection to software code could lead to decreased operability between products if manufacturers decide to limit how much of their code could be accessible to third-party developers.

One of the more intriguing implications of the proposal is its potential effects on open source software.�� If the proposal becomes law, open source programmers could be liable for any damage that errors in their software cause.�� Alan Cox, a programmer who was involved in the development of Linux, .�� As developers share code around the community, responsibility is collective, and thus there is potentially no way to enforce liability.�� However, , arguing that free software would not fall under a liability regime because the writer and the user have no business relationship.�� In the event that open source software does fall under the new liability regime, others suggest that additional laws be passed to protect people who distribute free software.

Clearly, the commissioners' proposal has far-reaching implications.�� Introducing liability for faulty code could be a great method to force large software companies to pay consumers for the harm their software has caused, and thus could create an incentive for those companies to write more secure and stable code in the future.�� However, it could also make open source software producers liable for the damages that result from their code, creating a disincentive for them to release freely available open source software.

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With the proliferation of open source web collaboration tools such as SourceForge, Wikipedia, and blogs, important concerns have been raised regarding a tool users’ ability to restrict the content they create.�� At the heart of the debate is whether a work, released for free public use, can still have restrictions attached via an open source copyright license. In a recent US Federal Court decision, significant progress has been made in clarifying the extent to which open source software and open source works are protected under US copyright law.[1] The court’s reasoning, while focusing on whether the terms of the license were conditions or covenants, also touched on the important issue of moral rights infringement.

Releasing works for free public use under an open source license means that the economic rights of the author to produce, re-produce, or publish a work are assigned to the public. The rights which remain with the author and which are found in open source licenses (i.e. attribution, modification restrictions, and non-commercial use restrictions) appear to be prima facie non-economic rights.

Under Canadian copyright law an author may restrict their open source works via copyright since many common open source license restrictions fall under the moral rights section of the Canadian Copyright Act s. 14.1(1). For example, GNU’s General Public License [2], and the variations of the Creative Commons licenses [3] can require that the original author be recognized in the work. This license restriction fits well under the author’s moral right to attribution [4]. The majority of the open source licenses also require that the work remain free for public use and cannot be used for commercial purposes. Similarly, this restriction coincides with the moral right of association - in this case not be associated with a commercial product.[5]

Within the US, however, authors have greater difficulty restricting their public works via copyright since US copyright laws only recognize authors’ economic rights.[6] In traditional non-public works, American courts have nevertheless found ways to grant the equivalent of Canadian moral rights to authors without turning to the copyright act. This is accomplished by finding remedies in contract law (misrepresentation) for mutilation of an author’s works, or tort law (unfair competition) for non-attribution.[7] The underlying policy rational is that the:

The recent decision of the federal court in Jacobsen v. Katzer [10], not only confirmed the scope of copyright to cover open source works, but may have also provided authors of open source works an action in copyright for infringement of conditions typically found in moral rights. The court accomplished this by showing that the prima facie non-economic license restrictions such as attribution, should actually be considered economic benefits and thus be protected under copyright. The court reasoned that just because an author gives a license for no monetary consideration, does not mean that they have relinquished all economic rights. While a license for monetary consideration may be the standard method of licensing to create income, releasing for free public use can also provide economic benefits because the author creates a reputation and generates market share for their programs. [11]

While this decision provides greater clarity of copyright protection for open source works, it is unclear if the reasoning could also be extended to works with a traditional copyright license. Indeed, why should restrictions of attribution and other moral right with economic implications only be limited to open source works under American copyright law?

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[1] David Canton, London Free Press online at:

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[9] Cadence Design Systems v. Avant!�� Corp., 125 F.3d 824, 826-27 (9th Cir. 1997), cert. denied, 118 S. Ct. 1795 (1998).

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