A particular copyright case, although not dealing directly with technology, has fingerprints that lead to one area of technology that shares some legal issues with animals: artificial intelligence. On April 23, 2018, the Court of Appeals for the Ninth Circuit issued Naruto v. Slater,[1] in a ruling that was not entirely unexpected since the parties settled out of court seven months earlier. Naruto is a crested macaque in a wildlife sanctuary in Sulawesi, Indonesia. David Slater is a photographer who placed his camera strategically on the jungle floor. During this time, in what is to become the famous “Monkey Selfie” photographs, Naruto photographed himself with the camera.
These photographs became the subject of a published book. In 2015, People for the Ethical Treatment of Animals (PETA) sued Slater, among others, for copyright infringement on behalf of Naruto. The complaint did not allege a connection between PETA and Naruto, other than PETA being a “champion of establishing the rights and legal protections available to animals.” Slater filed a Rule 12(b)(6) motion to dismiss for lack of standing under either Article III or statutory standing under the Copyright Act, which the district court granted. PETA appealed.
Legal standing involves two separate analyses. First, there is constitutional standing under Article III of the U.S. Constitution. Article III requires the plaintiff to have suffered some “case or controversy” by showing (1) there is an injury in fact, that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision of the federal courts.[2] Without Article III standing, Congress cannot confer standing by statute.[3]
Second, once constitutional standing has been established, the specific statute at-issue must confer the proper statutory standing. Explicit Congressional intention must be clearly stated in the statute that a particular plaintiff has proper standing to sue under the statute.[4]
Next-friend standing, or third party standing, is essentially a bypass to the constitutional standing framework. As the U.S. Supreme Court stated:
Next-friend standing is an “alternative basis for standing” where the litigant pursues the action on behalf of the “real party in interest.” Next-friend standing requires (1) “an adequate explanation – such as inaccessibility, mental incompetence, or other disability – why the real party in interest cannot appear on his own behalf to prosecute the action”; and (2) “the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party interest.”[5]
Next-friend standing is what PETA pursued as its argument in Naruto. However, the Ninth Circuit panel, composed of Judges Bea, Smith, and Robreno, with Judge Bea writing for the majority, gave a derisive indictment of PETA’s “significant relationship” with Naruto in observing its handling of the case:
We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something from the settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey-selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.”[6]
Although Judge Bea disagreed with Ninth Circuit precedent that found constitutional standing for nonhumans, but nonetheless, felt bound to its holding:
We are, of course, bound by the precedent set in Cetacean Community until and unless overruled by an en banc panel or the Supreme Court.[7]
Therefore, the majority reluctantly upheld constitutional standing for PETA to sue on behalf of Naruto. That precedent case, Cetacean Community, noted that:
It is obvious that an animal cannot function as a plaintiff in the same manner as a juridically competent human being. But we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents (emphasis added).[8]
Cetacean Community dealt with a third party’s attempts to litigate the Navy’s use of sonar which was found to damage the auto-sensory perception of whales, porpoises, and dolphins. The concurring opinion written by Judge Smith disagreed that PETA was a “next friend,” and Naruto lacked constitutional standing:
The Supreme Court was explicit:
The burden is on the “next friend” clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.
These limitations on the “next friend’ doctrine are driven by the recognition that “[i]t was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves next friends.” Indeed, if there were no restrictions on “next friend” standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of “next friend.”
(Emphasis added.)[9]
While finding for constitutional standing, the Cetacean court ultimately rejected the suit because the specific statutes at-issue (i.e., Endangered Species Act, Marine Mammal Protection Act)[10] lacked the explicit authorization to give standing to animals.[11] In Naruto, Judge Bea noted that the Copyright Act lacks any specific scheme giving any copyright interests in anything other than humans.[12] Judge Bea used as examples that all terms when denoting an “author,” including “children” or “widow” for heirs of authors, all imply humanity and exclude animals. As a result, animals (or nonhumans) are excluded from the statutory scheme of the Copyright Act. To emphasize his point, Judge Bea noted that Naruto was not a party to the settlement between PETA and Slater, and therefore, as an animal retained no interest or right in the lawsuit:
We do not speculate on the effect that any settlement agreement . . . may have . . . . We note . . . that Appellant Naruto was not a party to the settlement agreement.[13]
The ruling is both consistent with Ninth Circuit precedent and U.S. Copyright Office regulations that do not allow copyright registrations in works that lack human authorship – i.e., no nature, animals, or plants. This means there is a lack of statutory standing absent Congressional act. However, Naruto does reaffirm constitutional standing for animals. The question now is how does this apply to technology, namely new technologies being developed as a result of machine learning, AI, and robotics? The legal theory for rights in nonhumans is not new,[14] although at the time, the technology was not available to create a practical, tangible medium of expression. The advent of AI is now making the technology available today. Can robots and animals evolve to self-awareness? Can they process memories, understandings, or analyze facts and situations? The implication is evident, but the process is not. Perhaps what sums up this dilemma is what Judge Smith wrote in his concurring opinion in Naruto:
Participation in society brings rights and corresponding duties. The right to own property is not free from duties. One must pay taxes on profits from a royalty agreement for use of a copyrighted image. Are animals capable of shouldering the burden of paying taxes? Similarly, all people have a duty to obey the law and, for example, not commit intentional torts. Should animals be liable for intentional torts as well? The concept of expanding actual property rights – and rights broadly – to animals necessitates resolving what duties also come with those rights and, because animals cannot communicate in our language, who stands in their shoes?[15]
Although directed at animals, this last question can be broadly directed to nonhumans, including AI-driven machines. Creating a machine to think is difficult and complex; teaching a machine about differentiating ethical issues goes beyond into the realm of mind-blowing. Can we create a self-driving car to make an ethical choice between hitting one pedestrian when two are in the car’s path? Or, how about creating a robot that understands not to enter an unauthorized area, and thereby not risking injury to other bystanding humans? Once these questions are answered, as well as the complex underlying issues are addressed, then we can discuss whether nonhumans are capable of holding any property right, like IP.
[1] ___F.3d___ (9th Cir. 2018) (slip op.), aff’g Case No. 15-cv-04324-WHO (N.D. Cal. Jan. 28, 2016).
[2] See, e.g., Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004); Friends of the Earth, Inc. v. Laidlaw Envtl. Sys. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
[3] See Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77 (1992).
[4] See Nat’l Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 488 (1998).
[5] See Whitmore v. Arkansas, 495 U.S. 149, 161-164 (1990).
[6] See Naruto, supra (slip op. at 7-8, fn.3).
[7] Id. (slip op. at 6).
[8] See Cetacean Cmty., 386 F.3d at 1175-76, aff’g 249 F. Supp. 2d 1206 (D. Haw. 2003).
[9] See Naruto, supra (slip op. at 21) (Smith, J., concurring), citing Whitmore, 495 U.S. at 164.
[10] See ESA, 16 U.S.C. §1540(g)(1)(A); MMPA, 16 U.S.C. §1374(d)(6).
[11] See Cetacean Cmty., 386 F.3d at 1179.
[12] In fact, U.S. Copyright Office practice regulations do not allow registrations to, inter alia, animals. See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §101 (2d ed. 2014), ch. 300, §313.2.
[13] See Naruto, supra (slip op. at 18).
[14] See, e.g., Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 N.C. L. Rev. 1231-87 (1992).
[15] See Naruto, supra (slip op. at 29, fn.6) (Smith, J., concurring).