Pursuing statutory damages for copyright violation from AI use

Question

This is hypothetical; not something I'm dealing with actively.

My understanding is that even if I don't profit from a copyright I hold, I can still sue for statutory damages if someone violates that copyright. Let's say I hold the copyright for some programming code that I've released publicly under a restrictive license. If someone uses "AI" to generate code, and the "AI" happens to generate a non-trivial portion of my code, and that person uses that code in a way that violates my license, would I reasonably be able to sue them for copyright infringement and pursue statutory damages?

Answer 1

united-states

My understanding is that even if I don't profit from a copyright I hold, I can still sue for statutory damages if someone violates that copyright.

That understanding is fully correct. It all boils down to that you have to prove infringement.

To get statutory damages, you only have to prove Infringement

To prove infringement, you need to prove access and similarity of the work. You also need to show that you actually have a copyright in the code and thus might need to prove the originality and authorship of your code.

To prove access, you'd need to either prove that the user did access your work, or prove that the AI did reproduce your code, and not the code of someone else that is almost identical but created separately. For that, you might need to subpoena or sue the AI-company to tell you that they used your code in the training data.

To prove similarity, both codes would need to be very close to one another. A straight reproduction would be without difference and thus easy to prove here.

But, here comes the elephant in the room, because generative AI is involved and AI products are uncopyrightable: The other side could claim your work is trivial or not creative or original and thus not copyrightable in the first place. To have a copyright, you only need two requirements, Originality and Fixation, but, if they can topple your originality, the whole copyright is gone. Cases like Feist v Rural do clearly say, that for a work to be original, the owner of the work needs to show at least a modicum of creativity:

(a) Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity.

^{Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)}

To prove originality or creativity, you have to prove that your code is non-trivial. If your code is on the level of "Hello, World!", that's trivial. If your code can be straight-up put together from the documentation by AI, that's trivial. If your code is annotated and shows your own style beyond the mere conventions in naming, then you have a case.

To prove authorship, you might need to supply that you did not copy the code or substantial snippets from other people.

Answer 2

canada

If you can prove infringement against an entity, you can select to receive statutory damages from that entity.

The purpose of statutory damages is to cover exactly the circumstance you describe: where you cannot (or simply want to avoid the effort of) showing actual losses.

Whether to pursue statutory damages or actual damages is the choice of the copyright owner. See the Copyright Act, section 38.1:

Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages

Statutory damages are available for every copyright infringement. It does not depend on how the infringement happened. It has nothing to do with artificial intelligence.

^{If instead you're asking whether the circumstance you've described is infringement, there are many other questions on this site that cover that: e.g. 1; 2. I'm addressing your question about availability of statutory damages.}