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`EXHIBIT B
`EXHIBIT B
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 1 of 24
`
`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided March 18, 2025
`
`Argued September 19, 2024
`
`
`No. 23-5233
`
`STEPHEN THALER, AN INDIVIDUAL,
`APPELLANT
`
`v.
`
`SHIRA PERLMUTTER, IN HER OFFICIAL CAPACITY AS REGISTER
`OF COPYRIGHTS AND DIRECTOR OF THE UNITED STATES
`COPYRIGHT OFFICE AND U.S. COPYRIGHT OFFICE,
`APPELLEES
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:22-cv-01564)
`
`
`
`
`
`Ryan Abbott argued the cause for appellant. With him on
`the briefs was Timothy G. Lamoureux.
`
`
`Ryan N. Phelan was on the brief for amici curiae Legal
`Professors Shlomit Yanisky-Ravid, et al. in support of
`appellant.
`
`
`Nicholas S. Crown, Attorney, U.S. Department of Justice,
`argued the cause for appellees. With him on the brief were
`Brian M. Boynton, Principal Deputy Assistant Attorney
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 2 of 24
`
`2
`General at the time the brief was filed, Daniel Tenny, Attorney,
`and Emily L. Chapuis, Deputy General Counsel, U.S.
`Copyright Office.
`
`
`Before: MILLETT and WILKINS, Circuit Judges, and
`ROGERS, Senior Circuit Judge.
`
`
`
`Opinion for the Court filed by Circuit Judge MILLETT.
`
` MILLETT, Circuit Judge: This case presents a question
`made salient by recent advances in artificial intelligence: Can
`a non-human machine be an author under the Copyright Act of
`1976? The use of artificial intelligence to produce original
`work is rapidly increasing across industries and creative fields.
`Who—or what—is the “author” of such work is a question that
`implicates important property rights undergirding economic
`growth and creative innovation.
`
`
`In this case, a computer scientist attributes authorship of
`an artwork to the operation of software. Dr. Stephen Thaler
`created a generative artificial
`intelligence named
`the
`“Creativity Machine.” The Creativity Machine made a picture
`that Dr. Thaler titled “A Recent Entrance to Paradise.” Dr.
`Thaler submitted a copyright registration application for “A
`Recent Entrance to Paradise” to the United States Copyright
`Office. On the application, Dr. Thaler listed the Creativity
`Machine as the work’s sole author and himself as just the
`work’s owner.
`
`The Copyright Office denied Dr. Thaler’s application
`
`based on its established human-authorship requirement. This
`policy requires work to be authored in the first instance by a
`human being to be eligible for copyright registration. Dr.
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 3 of 24
`
`3
`Thaler sought review of the Office’s decision in federal district
`court and that court affirmed.
`
` We affirm the denial of Dr. Thaler’s copyright application.
`The Creativity Machine cannot be the recognized author of a
`copyrighted work because the Copyright Act of 1976 requires
`all eligible work to be authored in the first instance by a human
`being. Given that holding, we need not address the Copyright
`Office’s argument that the Constitution itself requires human
`authorship of all copyrighted material. Nor do we reach Dr.
`Thaler’s argument that he is the work’s author by virtue of
`making and using the Creativity Machine because that
`argument was waived before the agency.
`
`
`I
`
`
`
`A
`
`
`The Constitution’s Intellectual Property Clause gives
`
`Congress authority to “promote the Progress of Science and
`useful Arts, by securing for limited Times to Authors and
`Inventors the exclusive Right to their respective Writings and
`Discoveries[.]” U.S. CONST. Art. I, § 8, cl. 8. Under that
`provision, federal copyright protection extends only as far as
`Congress designates by statute. Wheaton v. Peters, 33 U.S.
`591, 661 (1834).
`
`
`Copyright law incentivizes the creation of original works
`so they can be used and enjoyed by the public. Since the
`founding, Congress has given authors short term monopolies
`over their original work. See Act of May 31, 1790, ch. 15, 1st
`Cong., 1 Stat. 124. This protection is not extended as “a special
`reward” to the author, but rather “to encourage the production
`of works that others might reproduce more cheaply.” Google
`LLC v. Oracle Am., Inc., 593 U.S. 1, 16 (2021). By ensuring
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 4 of 24
`
`4
`that easily reproducible work is protected, individuals are
`incentivized to undertake the effort of creating original works
`that otherwise would be easily plagiarized.
`
`The Copyright Act of 1976 is the current federal copyright
`
`statute. Three of its provisions are relevant here.
`
`First, the Copyright Act preempts state common law
`
`copyright protection by immediately vesting federal copyright
`ownership in a work’s author as soon as a work is created. 17
`U.S.C. §§ 102(a); 201(a); 301(a). Although domestic authors
`generally must register their copyrights to exercise other rights,
`like the right to sue for infringement, id. § 411(a), the right to
`own a copyright does not depend on registration or publication.
`
`Second, the Copyright Act incentivizes authors by
`
`protecting their work “for a term consisting of the life of the
`author and 70 years after the author’s death.” 17 U.S.C.
`§ 302(a). In that way, authors are encouraged to produce work
`because they know that they can profit from it for their entire
`life and that their heirs and assigns can continue to benefit for
`seven decades thereafter.
`
`Third, individuals and organizations can own copyrights
`
`by hiring someone to create work. The Copyright Act’s work-
`made-for-hire provision allows “the employer or other person
`for whom the work was prepared” to be “considered the
`author” and “own[] all of the rights comprised in the
`copyright.” 17 U.S.C. § 201(b). Rather than enduring for the
`author’s lifetime, a work-made-for-hire copyright lasts “95
`years from the year of its first publication, or a term of 120
`years from the year of its creation, whichever expires first.” Id.
`§ 302(c).
`
`
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 5 of 24
`
`5
`B
`
`
`The Copyright Act is administered by the United States
`
`Copyright Office. 17 U.S.C. § 701(a). That Office has a duty
`to “[a]dvise Congress” on issues “relating to copyright,” to
`“[p]rovide
`information
`and
`assistance”
`to
`“Federal
`departments and agencies and the Judiciary,” and to “[c]onduct
`studies and programs regarding copyright[.]” Id. § 701(b)(1),
`(2), (4).
`
`
`In addition, the Copyright Office has authority to establish
`regulations to implement the Copyright Act. 17 U.S.C. § 702.
`Pursuant to that authority, the Copyright Office issues
`regulations governing the “conditions for the registration of
`copyright, and the application to be made for registration[.]” 37
`C.F.R. § 202.3(a)(1). The Copyright Office publishes these
`registration regulations in the Compendium of Copyright Office
`Practices to inform authors about registration criteria for
`different types of work. See Copyright Office, Compendium of
`(3d
`ed.
`2021),
`U.S. Copyright Office Practices
`https://perma.cc/9N9N-C3VU (Compendium Third Edition).
`
`Individuals whose registration applications are denied can
`seek reconsideration by the Copyright Office’s Registration
`Program. If still dissatisfied, they can ask the Copyright
`Office’s Review Board to reconsider their case. 37 C.F.R.
`§ 202.5(b), (c). A decision by the Review Board “constitutes
`final agency action,” id. § 202.5(g), and is reviewable under the
`Administrative Procedure Act, 5 U.S.C. § 704; 17 U.S.C.
`§ 701(e).
`
`Copyright Office regulations have long required that any
`registered work be authored by a human. See Copyright Office,
`Compendium of Copyright Office Practices § 2.8.3(I),
`(I)(a)(1)(b) (1st ed. 1973), https://perma.cc/J7ML-BZK6
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 6 of 24
`
`6
`(Compendium First Edition) (“[N]othing can be considered the
`‘writing of an author’” unless it owes its “origin to a human
`agent[.]”); Copyright Office, Compendium of Copyright Office
`Practices § 202.02(b) (2d ed. 1984), https://perma.cc/52MX-
`6YPD (Compendium Second Edition) (“The term “authorship”
`implies that, for a work to be copyrightable, it must owe its
`origin to a human being.”). The current Compendium advises
`that the Copyright Office “will refuse to register a claim if it
`determines that a human being did not create the work.”
`Compendium Third Edition § 306. That refusal extends to
`works “produced by a machine or mere mechanical process
`that operates randomly or automatically without any creative
`input or intervention from a human author.” Id. § 313.2
`
`
`C
`
`1
`
`
`
`
`
`
`
`Dr. Thaler is a computer scientist who creates and works
`with artificial intelligence systems, Thaler Opening Br. ii, and
`who invented the Creativity Machine, id. 43-44. On May 19,
`2019, Dr. Thaler submitted a copyright registration application
`to the Copyright Office for an artwork titled “A Recent
`Entrance to Paradise.” J.A. 43. On the application, Dr. Thaler
`listed the “Author” of that work as the “Creativity Machine.”
`J.A. 43. Under “Copyright Claimant,” Dr. Thaler provided his
`own name. J.A. 43. In the section labeled “Author Created,”
`Dr. Thaler wrote “2-D artwork, Created autonomously by
`machine.” J.A. 43.
`
`The Copyright Office denied Dr. Thaler’s application
`
`because “a human being did not create the work.” J.A. 45. The
`letter cited the Supreme Court’s decision in Burrow-Giles
`Lithographic Co. v. Sarony, 111 U.S. 53 (1884), in support of
`its decision. J.A. 45.
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 7 of 24
`
`7
`
`
`
`In seeking reconsideration by the Registration Program,
`Dr. Thaler acknowledged the Copyright Office’s decision “was
`made on the basis that the present submission lacks human
`authorship[.]” J.A. 49. Dr. Thaler confirmed this “is correct”
`and “that the present submission lacks traditional human
`authorship—it was autonomously generated by an AI.” J.A.
`49. Dr. Thaler then argued that “the Human Authorship
`Requirement is unconstitutional and unsupported by either
`statute or case law.” J.A. 49. Dr. Thaler claimed judicial
`opinions “from the Gilded Age” could not settle the question
`of whether computer generated works are copyrightable today.
`J.A. 55.
`
`The Registration Program again denied Dr. Thaler’s
`
`application because the work lacked “sufficient creative input
`or intervention from a human author.” J.A. 59.
`
`
`In his request for reconsideration by the Review Board, Dr.
`Thaler reaffirmed that “the present submission lacks traditional
`human authorship—it was autonomously generated by an AI.”
`J.A. 63. He then reiterated his constitutional, statutory, and
`policy arguments against the human-authorship requirement.
`J.A. 63-69. Dr. Thaler also argued he should own the copyright
`under the work-made-for-hire doctrine because “non-human,
`artificial persons such as companies can already be authors
`under this doctrine.” J.A. 66.
`
`The Review Board affirmed the denial of Dr. Thaler’s
`
`copyright application based on
`the human-authorship
`requirement. J.A. 73. The Board relied upon Dr. Thaler’s
`“representation that the Work was autonomously created by
`artificial intelligence without any creative contribution from a
`human actor[.]” J.A. 72. The Board also rejected Dr. Thaler’s
`argument that the work was made for hire on the ground that
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 8 of 24
`
`8
`there was no contract between Dr. Thaler and the Creativity
`Machine. J.A. 76-77.
`
`
`2
`
`
`Dr. Thaler sought review in the United States District
`
`Court for the District of Columbia, and both sides moved for
`summary judgment. Thaler v. Perlmutter, 687 F. Supp. 3d 140,
`142 (D.D.C. 2023). In his motion, Dr. Thaler asserted the same
`constitutional, statutory, and policy arguments that he had
`advanced before the agency, including the argument that he
`owns the copyright under the work-made-for-hire provision.
`J.A. 80-115. In addition, he claimed for the first time that the
`work is copyrightable because a human—Dr. Thaler—
`“provided instructions and directed his AI[.]” J.A. 113.
`
`The district court affirmed the Copyright Office’s denial
`
`of registration. Based on the caselaw and the Copyright Act’s
`text, the district court concluded that “[h]uman authorship is a
`bedrock requirement of copyright.” Thaler, 687 F. Supp. 3d at
`146. The court also held that Dr. Thaler could not rely on the
`work-made-for-hire provision because
`that provision
`“presuppose[s] that an interest exists to be claimed.” Id. at 150.
`The “image autonomously generated” by the Creativity
`Machine was not such an interest because it “was never eligible
`for copyright,” so the Machine had no copyright to transfer to
`Dr. Thaler even if he were the Creativity Machine’s employer.
`Id. Finally, the court found that Dr. Thaler waived his
`argument that he should own the copyright because he created
`and used the Creativity Machine. The court stressed that, “[o]n
`the record designed by plaintiff from the outset of his
`application for copyright registration,” the case had presented
`“only the question of whether a work generated autonomously
`by a computer system is eligible for copyright.” Id. at 149-150.
`
`
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 9 of 24
`
`9
`II
`
`
`
`We review a district court’s grant of summary judgment in
`a case concerning agency action de novo and, like the district
`court, will set aside the agency action only if it is “arbitrary,
`capricious, an abuse of discretion, or otherwise not in
`accordance with law[.]’” Jicarilla Apache Nation v. United
`States Dep’t of Interior, 613 F.3d 1112, 1118 (D.C. Cir. 2010)
`(quoting 5 U.S.C. § 706(2)(A)). We “exercise independent
`judgment in determining the meaning of statutory provisions.”
`Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 394
`(2024).
`
`The district court had jurisdiction under 28 U.S.C. § 1331.
`This court has jurisdiction under 28 U.S.C. § 1291.
`
`
`III
`
`
`As a matter of statutory law, the Copyright Act requires all
`
`work to be authored in the first instance by a human being. Dr.
`Thaler’s copyright registration application listed the Creativity
`Machine as the work’s sole author, even though the Creativity
`Machine is not a human being. As a result, the Copyright
`Office appropriately denied Dr. Thaler’s application.
`
`
`A
`
`Authors are at the center of the Copyright Act. A
`copyright “vests initially in the author or authors of the work.”
`17 U.S.C. § 201(a). And copyright protection only “subsists
`* * * in original works of authorship[.]” Id. § 102(a).
`
`The Copyright Act does not define the word “author.” But
`traditional tools of statutory interpretation show that, within the
`meaning of the Copyright Act, “author” refers only to human
`
`
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 10 of 24
`
`10
`beings. To start, the text of multiple provisions of the statute
`indicates that authors must be humans, not machines. In
`addition, the Copyright Office consistently interpreted the
`word author to mean a human prior to the Copyright Act’s
`passage, and we infer that Congress adopted the agency’s
`longstanding interpretation of the word “author” when it re-
`enacted that term in the 1976 Copyright Act.
`
`
`1
`
`
`
`Numerous Copyright Act provisions both identify authors
`as human beings and define “machines” as tools used by
`humans in the creative process rather than as creators
`themselves. Because many of the Copyright Act’s provisions
`make sense only if an author is a human being, the best reading
`of the Copyright Act is that human authorship is required for
`registration.
`
`
`is
`the Copyright Act’s ownership provision
`First,
`premised on the author’s legal capacity to hold property. A
`copyright “vests initially in the author[.]” 17 U.S.C. § 201(a).
`This means an “author gains ‘exclusive rights’ in her work
`immediately upon the work’s creation.” Fourth Estate Pub.
`Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 300-301,
`(2019) (quoting 17 U.S.C. § 106). Because a copyright is
`fundamentally a property right created by Congress, and
`Congress specified that authors immediately own their
`copyrights, an entity that cannot own property cannot be an
`author under the statute.
`
`Second, the Copyright Act limits the duration of a
`copyright to the author’s lifespan or to a period that
`approximates how long a human might live. A copyright
`generally “endures for a term consisting of the life of the author
`and 70 years after the author’s death.” 17 U.S.C. § 302(a). The
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 11 of 24
`
`11
`Copyright Office maintains “current records of information
`relating to the death of authors of copyrighted works” so that it
`can determine when copyrights expire. Id. § 302(d). If the
`author’s death is unknown, the Copyright Act presumes death
`after “a period of 95 years from the year of first publication of
`a work, or a period of 120 years from the year of its creation[.]”
`Id. § 302(e). And even when a corporation owns a copyright
`under the work-made-for-hire provision, the copyright endures
`for the same amount of time—“95 years from the year of first
`publication” or “120 years from the year of its creation[.]” Id.
`§ 302(c). Of course, machines do not have “lives” nor is the
`length of their operability generally measured in the same
`terms as a human life.
`
`Third, the Copyright Act’s inheritance provision states
`that, when an author dies, that person’s “termination interest is
`owned, and may be exercised” by their “widow or widower,”
`or their “surviving children or grandchildren,” 17 U.S.C.
`§ 203(a)(2), (A). Machines, needless to say, have no surviving
`spouses or heirs.
`
`
`Fourth, copyright transfers require a signature. To transfer
`copyright ownership, there must be “an instrument of
`conveyance” that is “signed by the owner[.]” 17 U.S.C.
`§ 204(a). Machines lack signatures, as well as the legal
`capacity to provide an authenticating signature.
`
`Fifth, authors of unpublished works are protected
`regardless of the author’s “nationality or domicile.” 17 U.S.C.
`§ 104(a). Machines do not have domiciles, nor do they have a
`national identity.
`
`Sixth, authors have intentions. A joint work is one
`“prepared by two or more authors with the intention that their
`contributions be merged into inseparable or interdependent
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 12 of 24
`
`12
`parts of a unitary whole.” 17 U.S.C. § 101. Machines lack
`minds and do not intend anything.
`
`Seventh, and by comparison, every time the Copyright Act
`discusses machines, the context indicates that machines are
`tools, not authors. For example, the Copyright Act defines a
`“computer program” as “a set of statements or instructions to
`be used directly or indirectly” to “bring about a certain result.”
`17 U.S.C. § 101. The word “machine” is given the same
`definition as the words “device” and “process,” id., and those
`terms are consistently used in the statute as mechanisms that
`assist authors, rather than as authors themselves, id. §§ 102(a);
`108(c)(2); 109(b)(1)(B)(i); 116(d)(1); 117(a)(1), (c); 401(a);
`1001(2), (3). In addition, when computer programs and
`machines are referenced in the statute, the statute presumes
`they have an “owner,” id. § 117(a), (c), who can perform
`“maintenance,” “servic[e],” or “repair” on
`them,
`id.
`§ 117(d)(1), (2).
`
`
`All of these statutory provisions collectively identify an
`“author” as a human being. Machines do not have property,
`traditional human lifespans, family members, domiciles,
`nationalities, mentes reae, or signatures. By contrast, reading
`the Copyright Act to require human authorship comports with
`the statute’s text, structure, and design because humans have
`all the attributes the Copyright Act treats authors as possessing.
`The human-authorship requirement, in short, eliminates the
`need to pound a square peg into a textual round hole by
`attributing unprecedented and mismatched meanings
`to
`common words in the Copyright Act. See Food & Drug
`Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
`133 (2000) (“It is a ‘fundamental canon of statutory
`construction that the words of a statute must be read in their
`context and with a view to their place in the overall statutory
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 13 of 24
`
`13
`scheme.’”) (quoting Davis v. Michigan Dept. of Treasury, 489
`U.S. 803, 809 (1989)).
`
`To be clear, we do not hold that any one of those statutory
`
`provisions states a necessary condition for someone to be the
`author of a copyrightable work. An author need not have
`children, nor a domicile, nor a conventional signature. Even
`the ability to own property has not always been required for
`copyright authorship. Married women in the nineteenth
`century authored work that was eligible for copyright
`protection even though coverture laws forbade them from
`owning copyrights. See Melissa Homestead, AMERICAN
`WOMEN AUTHORS AND LITERARY PROPERTY, 1822-1869, at
`21-62 (2005); Belford, Clarke & Co. v. Scribner, 144 U.S. 488,
`504 (1892) (recognizing Mrs. Terhune’s authorship when her
`book’s copyright was infringed, even though, as a married
`woman, she could not own property).
`
`The point, instead, is that the current Copyright Act’s text,
`
`taken as a whole, is best read as making humanity a necessary
`condition for authorship under the Copyright Act. That is the
`reading to which “the provisions of the whole law” point. John
`Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S.
`86, 94 (1993) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
`41, 51 (1987)).
`
`
`
`The Copyright Office’s longstanding rule requiring a
`
`human author reinforces the natural meaning of those statutory
`terms.
`
`The Copyright Office first addressed whether machines
`
`could be authors in 1966—ten years before the Copyright Act
`of 1976 was passed. That year, the Register of Copyrights
`
`2
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 14 of 24
`
`14
`wrote in the Copyright Office’s annual report to Congress that,
`as “computer
`technology develops and becomes more
`sophisticated, difficult questions of authorship are emerging.
`* * * The crucial question appears to be whether the ‘work’ is
`basically one of human authorship, with the computer merely
`being an assisting instrument[.]” Copyright Office, Sixty-
`Eighth Annual Report of the Register of Copyrights at 5 (1966),
`https://perma.cc/QU7P-TY6N.
`
`The Copyright Office formally adopted the human
`
`authorship requirement in 1973. That year, the Copyright
`Office updated its regulations to state explicitly that works
`must “owe their origin to a human agent[.]” Compendium First
`Edition § 2.8.3(I)(a)(1)(b).
`
`In 1974, Congress created the National Commission on
`
`New Technological Uses of Copyrighted Works (“CONTU”)
`to study how copyright law should accommodate “the creation
`of new works by the application or intervention of such
`automatic systems or machine reproduction.” Pub. L. 93-573,
`§ 201(b)(2), 88 Stat. 1873 (1974). CONTU assembled
`copyright experts from the government, academia, and the
`private sector to make recommendations to Congress. Prior to
`the Copyright Act’s passage, the Library of Congress published
`summaries of CONTU’s meetings, several of which focused on
`copyright law and computer technology. In none of these
`meetings did members of CONTU suggest that computers were
`authors rather than tools used by authors to create original
`work. See CONTU, Meeting No. 2 at 10-11 (Nov. 19, 1975),
`https://perma.cc/857K-VRSB; CONTU, Meeting No. 3 at 1-11
`(Dec. 18-19, 1975), https://perma.cc/EB3T-KNR4; CONTU,
`Meeting No.
`4
`at
`1-8
`(Feb.
`11-13,
`1976),
`https://perma.cc/NPG6-J8E3; CONTU, Meeting No. 6 (May 6-
`7, 1976), https://perma.cc/HCX5-6ZYX; CONTU, Meeting
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 15 of 24
`
`15
`No. 7 at 46-148 (June 9-10, 1976), https://perma.cc/Q795-
`YVQ4.
`
`
`This understanding of authorship and computer
`technology is reflected in CONTU’s final report:
`
`
`On the basis of its investigations and society’s experience
`with the computer, the Commission believes that there is
`no reasonable basis for considering that a computer in any
`way contributes authorship to a work produced through its
`use. The computer, like a camera or a typewriter, is an
`inert instrument, capable of functioning only when
`activated either directly or indirectly by a human. When
`so activated it is capable of doing only what it is directed
`to do in the way it is directed to perform.
`
`
`CONTU, Final Report at 44 (1978), https://perma.cc/7S8T-
`TAB5.
`
`
`Although CONTU’s final report was not published until
`1978, its conclusion that machines cannot be authors reflects
`the state of play at the time Congress enacted the Copyright Act
`in 1976. And when Congress amended the Copyright Act’s
`provision governing computer programs shortly following
`CONTU’s final report, Congress preserved
`the Act’s
`provisions governing authorship and the language describing
`machines as devices used by authors. Pub. L. No. 96-517, 94
`Stat. 3015, 3028 (1980) (stating it is not infringement to copy
`a computer program if the copy “is created as an essential step
`in the utilization of the computer program in conjunction with
`a machine[.]”).
`
`
`In short, at the time the Copyright Act was passed and for
`at least a decade before, computers were not considered to be
`capable of acting as authors, but instead served as “inert
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 16 of 24
`
`16
`instrument[s]” controlled “directly or indirectly by a human”
`who could be an author. CONTU, Final Report at 44 (1978),
`https://perma.cc/7S8T-TAB5. We infer Congress adopts an
`agency’s interpretation of a term “when a term’s meaning was
`well-settled[.]” Sackett v. Environmental Prot. Agency, 598
`U.S. 651, 683 (2023). And that rule applies with double force
`here where the commission Congress designated to study the
`issue, CONTU, came to the same conclusion. Given all that,
`the interpretation of “author” as requiring human authorship
`was well-settled at the time the 1976 Copyright Act was
`enacted.
`
`
`3
`
`a
`
`
`Dr. Thaler’s contrary reading of the statutory text fails.
`
`
`
`Dr. Thaler argues first that the natural meaning of “author”
`is not confined to human beings. Dr. Thaler points to a 2023
`dictionary definition defining “author” as “one that originates
`or creates something[.]” Thaler Opening Br. 23 (citing Author,
`Merriam-Webster Dictionary (2023)), https://perma.cc/S96L-
`WYTS.
`
`But statutory construction requires more than just finding
`
`a sympathetic dictionary definition. We “do not read statutes
`in little bites,” or words in isolation from their statutory
`context. Kircher v. Putnam Funds Tr., 547 U.S. 633, 643
`(2006). The judicial task when interpreting statutory language,
`instead, is to discern how Congress used a word in the law.
`
`That process includes “a natural presumption that identical
`
`words used in different parts of the same act are intended to
`have the same meaning.” Atlantic Cleaners & Dryers, Inc. v.
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 17 of 24
`
`17
`United States, 286 U.S. 427, 433 (1932). Here, the Copyright
`Act makes no sense if an “author” is not a human being. If
`“machine” is substituted for “author,” the Copyright Act would
`refer to a machine’s “children,” 17 U.S.C. § 203(a)(2), a
`machine’s “widow,” id., a machine’s “domicile,” id. § 104(a),
`a machine’s mens rea, id. § 101, and a machine’s “nationality,”
`id. Problematic questions would arise about a machine’s “life”
`and “death[.]”
` Id. § 302(a).
` And “machine” would
`inconsistently mean both an author and a tool used by authors.
`Id. § 117(d)(1); see id. §§ 102(a); 108(c)(2); 116(d)(1); 117(c);
`1001(2), (3).
`
`
`Dr. Thaler points out that the Copyright Act’s work-made-
`for-hire provision allows those who hire creators to be
`“considered the author” under the Act. 17 U.S.C. § 201(b).
`That is why corporations, e.g., Warren v. Fox Fam. Worldwide,
`Inc., 328 F.3d 1136, 1140 (9th Cir. 2003), and governments,
`e.g., Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 270
`(2020), can be legally recognized as authors.
`
`But the word “considered” in the work-made-for-hire
`
`provision does the critical work here. It allows the copyright
`and authorship protections attaching to a work originally
`created by a human author to transfer instantaneously, as a
`matter of law, to the person who hired the creator. See
`Community for Creative Non-Violence v. Reid, 490 U.S. 730,
`737 (1989). Congress, in other words, was careful to avoid
`using the word “author” by itself to cover non-human entities.
`For if Congress had intended otherwise, the work-made-for-
`hire provision would say straightforwardly that those who hire
`creators “are the author for purposes of this title,” not that they
`are “considered the author for purposes of this title.”
`
`
`
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 18 of 24
`
`18
` b
`
`
`the human-authorship
`that
`Dr. Thaler also argues
`
`requirement wrongly prevents copyright law from protecting
`works made with artificial intelligence. Thaler Opening Br. 38.
`
`But the Supreme Court has long held that copyright law is
`
`intended to benefit the public, not authors. Copyright law
`“makes reward to the owner a secondary consideration. * * *
`‘[T]he primary object in conferring the monopoly lie[s] in the
`general benefits derived by the public from the labors of
`authors.’” United States v. Loew’s, Inc., 371 U.S. 38, 46-47
`(1962) (quoting Fox Film Co. v. Doyal, 286 U.S. 123, 127
`(1932)).
`
`To that public-benefit end, “the law of copyright has
`
`developed in response to significant changes in technology.”
`Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
`417, 430 (1984). Photography, sound recordings, video
`recordings, and computer programs are all technologies that
`were once novel, but which copyright law now protects. See
`Burrow-Giles, 111 U.S. at 58; Goldstein v. California, 412 U.S.
`546, 565-566 (1973); Sony, 464 U.S. at 442; Google, 593 U.S.
`at 21. Importantly, that evolution in copyright protection has
`been at Congress’s direction, not through courts giving new
`meaning to settled statutory terms.
`
`Contrary to Dr. Thaler’s assumption, adhering to the
`
`human-authorship requirement does not impede the protection
`of works made with artificial intelligence. Thaler Opening Br.
`38-39.
`
`First, the human authorship requirement does not prohibit
`
`copyrighting work that was made by or with the assistance of
`artificial intelligence. The rule requires only that the author of
`
`
`
`
`
`USCA Case #23-5233 Document #2106229 Filed: 03/18/2025 Page 19 of 24
`
`19
`that work be a human being—the person who created,
`operated, or used artificial intelligence—and not the machine
`itself. The Copyright Office, in fact, has allowed the
`registration of works made by human authors who use artificial
`intelligence. See Copyright Registration Guidance: Works
`Containing Material Generated by Artificial Intelligence, 88
`Fed. Reg. 16,190, 16,192 (March 16, 2023) (Whether a work
`made with artificial intelligence is registerable depends “on the
`circumstances, particularly how the AI tool operates and how
`it was used to create the final work.”).
`
`To be sure, the Copyright Office has rejected some
`
`copyright applications based on
`the human-authorship
`requirement even when a human being is listed as
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