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Reframing the AI Debate To Improve How We Practice Law
For the last several years, I’ve become obsessed with a particular legal, technological, and philosophical question: Can a robot invent on its own?
I’ve long agonized over this issue, following with bated breath the ins and outs of the quixotic global mission by computer scientist Stephen Thaler to secure patent rights for DABUS, the unique machine he developed that, he asserts, has invented a beverage container and an emergency beacon.
My quest led me to Thaler’s office in St. Charles, Missouri, where I encountered DABUS in the “flesh,” probed his claims, and reached my own conclusions about whether a machine can qualify as an inventor.
But along the way, I learned much broader lessons about artificial intelligence (AI), how our discourse about machines has gone awry, and how consulting traditional models can provide clarity — especially to thorny legal issues at the intersection of technology and IP law.
The AI Debate: Four Schools of Thought
Cybersecurity Law & Strategy readers needn’t be reminded how the debate over AI in general, and its application to the practice of law in particular, has, in recent years, grown increasingly polarized.1. Positive Autonomists
On one hand, AI cheerleaders at OpenAI, Google, Meta, and elsewhere have waxed ecstatic about a robot-heavy future replete with supercharged drug discovery, fully self-driving private and public transportation, and the automation of both blue- and white-collar occupations, empowering humans to channel their productive energies into higher-value-added careers.
This school of thought, which I have labeled positive autonomists, believes fervently that large language models (LLMs) like ChatGPT, Gemini and Claude, already are or soon will be genuinely independent of its programmers, operating on its own and without human supervision. Thaler’s DABUS falls into this category, and for this reason, he has filed patent applications around the world in its name, arguing that its inventions were “autonomously generated by an artificial intelligence.”
Thaler has also proffered DABUS’s predecessor computer to the U.S. Copyright Office as an author of a colorful painting entitled “A Recent Entrance to Paradise,” which he declared had been “autonomously created by a computer algorithm running on a machine.”
Positive autonomists applaud the emergence of independent LLMs, not least because of their promise in generating new ideas. As Ryan Abbott, one of Thaler’s lawyers and a professor at the University of Surrey School of Law, argued in a 2016 law review article, “treating nonhumans as inventors would incentivize the creation of intellectual property by encouraging the development of creative computers.” See, “I Think, Therefore I Invent: Creative Computers and the Future of Patent Law,” Boston College Law Review, Vol. 57, Issue 4 (Sept. 28, 2016).
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