João Marinotti is the Jerome Hall Postdoctoral Fellow at the Center for Law, Society and Culture at the Indiana University Maurer School of Law, a Fellow at the Center for Intellectual Property Research at Indiana University Maurer School of Law, and a Visiting Fellow at the Information Society Project at Yale Law School. His research lies at the intersection of emerging technologies and private law theory, including property, contract, and tort law. He focuses on the evolution and application of private law in the face of changing social, linguistic, and cognitive conceptualizations of technologies. His current work addresses property theory and the shared social customs and intuitions surrounding digital assets, prosthetics, artificial intelligence, and blockchain. At Indiana University Maurer School of Law, João will teach in the areas of property theory and intellectual property.
Dr. Asaf Lubin is an Associate Professor of Law at Indiana University Maurer School of Law, a Fellow at the Center for Applied Cybersecurity Research at Indiana University, an Affiliated Fellow at the Information Society Project at Yale Law School, and a Faculty Associate at the Berkman Klein Center for Internet and Society at Harvard University. Dr. Lubin’s research centers around the intersection of law and technology, particularly as it relates to the regulation of cybersecurity harms, liabilities, and insurance as well as policy design around governmental and corporate surveillance, data protection, and internet governance. Dr. Lubin has previously written on and taught seminars in public and private international law, cybersecurity and cyber risk management, torts law, international human rights and humanitarian law, and criminal procedure and counterterrorism. He has published with the Harvard International Law Journal, the Harvard National Security Journal, the Yale Journal of International Law, and the Chicago Journal of International Law, and written for Just Security and Lawfare.
in April 2020, Amazon released Upload depicting a future in which advances in computation and neuroscience allow the digital simulation of human consciousness. Dying individuals pay to be “uploaded” into a digital afterlife where consciousness is converted into data and executable code, all of which can be edited, reset, or even deleted. The show, thus, blurs the boundaries between reality and VR, consciousness and AI, and even life and afterlife. In the process, Upload raises complex questions of tort liability, property ownership, contract rights, and legal personhood. Most jarring, however, is Upload’s depiction of a future where the legal regime unintentionally reinstatesa virtual form of intellectual slavery.
Consider the existing law of AI creations.In the United States, the Copyright Office has adopted a stringent “human authorship”requirement according to which the “fruits of intellectual labor” are limited to those “founded in the creative powers of the mind”––the human mind that is (Compendium Of U.S. Copyright Office Practices, Ch. 300,§306, 3rd ed., 2014).This position was reaffirmed in the infamous “monkey selfie” case in which the court found that “a monkey...lacks statutory standing under the Copyright act” (Naruto v. David John Slater, 888 F.3d 418,9th Cir. 2018). Even in jurisdictions more welcoming to the protection of AI-generated content, the ownership rights belong to the company or individual employing the AI, and not to the AI itself. A court in China, for example, recognized that stories produced by an AI called Dreamwriter possessed sufficient originality to qualify for protection, but the copyright was granted not to the AI itself but to the tech titan Tencent that created it. But where is the boundary between an AI and the human mind? As Nathan, the uploaded protagonist, described, “[i]n a sense both of our consciousnesses are simulations, mine on a silicon computer and yours on a computer made of meat, your brain”(S1E7 at 12:07)
Upload, whether consciously or not, premises its narrative on the likely scenario that law will lag behind technology. Much like Naruto the monkey and the Dreamwriter AI, uploads are not allowed to work, contract, or directly earn money in any way(S1E4 at 1:45). More importantly, uploads are themselves “owned”(Id.at 6:53).While the interpersonal dimensions of this reality are explored in the show, the legal ramifications are not.Throughout the show,the various uploads continuously produce content. Most notably, Nathan himself constantly generates thoughtful and artistic prose. All of these creations, however, are owned by either Horizen, the company behind the digital afterlife, or the living account holder.
In the process of being uploaded individuals forfeit their right to own any property or intellectual property for an empty promise of eternity. After scanning, Horizen has uploads locked in a golden cage where it not only collects monthly hosting fees, but also has the legal power to make further profit off all the fruits of their labor. Uploads have only their account holders to turn to, who themselves may for whatever reason decide to delete, freeze, or alter the upload without recourse. In the show, human rights defenders seem to adopt a truly misguided agenda: instead of fighting for the rights of uploads, theyare fighting for the rights of humans to be uploaded (S1E4 at 11:44).By supporting this human right to enterwhat amounts to a labor camp for consciousnesses, they fail to rise against that very labor camp.