Re: [SUBMISSION] AI-MIT License 1 .0 — permissive license for AI-generated code

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Andy,

Thanks! I did raise that concern while CERN OHL was drafted (although I'm
sure you already knew), and I am happy that the team paid attention to it.
There are really two issues here. One is CREATION OF NORMS. Capitalized
because I want Open Source folks to keep it in mind. Courts look at
informal norms and codify them, and this is a tremendous risk to us. Second
is that our community, in general, greatly over-estimate the power of
licenses and are unaware of the limits of copyright. The worst case of
course being the "ethical" licenses, but they do it every day. They are an
unconscious force for creating inappropriate norms. They are surprised when
companies blithely ignore their overestimations (although this is not the
only reason companies ignore license obligations) and this creates a
conflict between the spirit and letter of the license. And of course they
are liable to be let down in court if they try to enforce their
overestimations.

    Thanks

    Bruce

On Wed, Mar 18, 2026 at 6:46=E2=80=AFAM Shuji Sado <[email protected]> wr=
ote:

> Hi,
>
> I agree that this mailing list often reflects a US-law framing, and I als=
o
> agree that differences across jurisdictions matter.
>
> Even so, my own view is that, in practical terms, the treatment of
> AI-generated code may not differ all that dramatically across many major
> jurisdictions, including the US, the EU, and Japan. The doctrinal routes
> may differ, but the basic result is often similar: copyright, if any,
> attaches to the human creative contribution.
> The UK may be a special case because of CDPA 9(3), and China may prove
> more willing to recognize copyright in AI-generated works.
> But I do not think most jurisdictions are moving toward recognizing
> copyright in fully autonomous AI-generated code as such.
>
> If that is broadly right, then the practical consequence is not that
> copyright licensing suddenly stops working. Even if a software tool were
> mostly AI-generated, the license would still operate with respect to the
> remaining human-authored and copyrightable portions. The main difference
> across jurisdictions would be the proportion of the work to which copyrig=
ht
> attaches, rather than a fundamental change in the overall licensing
> structure.
>
> That is why I am cautious about proposals like AI-MIT/AIAL.
> A license can govern whatever rights exist, but it should not try to
> predetermine, in the license text itself, the legal status of AI-generate=
d
> portions under different national copyright laws, and then attach special
> notice obligations or other conditions on top of that.
>
> That, to me, is where the real risk lies.
>
> Best,
> Shuji
>
> 2026/3/18 20:38 Andrew Katz <[email protected]>:
>
>> Hi Bruce
>>
>>
>> On 17 Mar 2026, at 19:38, Bruce Perens via License-discuss <
>> [email protected]> wrote:
>>
>> This is why I started deprecating Open Hardware licenses. Schematics are
>> not currently copyrightable, and what if they were? Perhaps Horowitz and
>> Hill's "Art of Electronics" textbook would be collecting royalties from
>> every electronic product worldwide.
>>
>> Bruce Perens K6BP
>>
>>
>> You raise a very good point, and I have a few observations:
>>
>> 1. (Not surprisingly) this list has a bias towards US copyright law, but
>> it=E2=80=99s worth pointing out that the scope of copyrightability (and =
similar IP
>> rights) varies significantly from jurisdiction to jurisdiction. In the U=
K,
>> for example, computer-generated works are explicitly given copyright
>> protection (s9(3) CDPA 1988 as amended [1]). We also have database right
>> (as they do in the EU). Since open source licences are used worldwide, i=
t=E2=80=99s
>> sensible to take a global view where possible.
>>
>> 2. So far as schematics are concerned, they could *potentially*, if
>> complex enough, be regarded as a database of the nodes (although I admit
>> it=E2=80=99s difficult to see how this does square with some of the requ=
irements
>> for database right protection in the UK and EU), but, if hand-drawn, the=
y
>> would almost certainly under UK law, be regarded as an artistic work, an=
d
>> they could, therefore, if machine generated, be regarded as a computer
>> generated work. (Of course, it may be possible to remove the expressive
>> element from the schematics, but there=E2=80=99s currently quite a lot o=
f tension
>> in UK copyright law around the idea/expression distinction. This partial=
ly
>> arises from a difficulty in reconciling s9(3) and EU copyright law which
>> requires that the work is the =E2=80=9Cauthor=E2=80=99s own intellectual=
 creation=E2=80=9D [2]. EU
>> Copyright law still underpins UK copyright law, despite the fiasco of
>> Brexit.
>>
>> This was a major concern when we drafted the CERN OHL because we didn=E2=
=80=99t
>> want the licence to be seen as trying to exert any control over the use =
of
>> non-copyright (or other wise non-IP-affected) materials. As it happens, =
I
>> think we could be more explicit about this point in the FAQs and rationa=
le
>> applicable to the CERN-OHL, and I may propose some amendments accordingl=
y.
>> (On re-reading, I spotted one assumption we made about enforcement of GP=
L
>> by copyright holders only,  which may not be universally correct any mor=
e,
>> so that needs addressing).
>>
>> 3. I=E2=80=99m deeply concerned (and I think this echoes your concerns) =
that
>> acting as if IP rights exist, when they don=E2=80=99t, can be dangerous.=
 After a
>> while, the courts (and even legislators) can rely on this =E2=80=9Ccusto=
m and
>> practice=E2=80=9D to justify the creation of intellectual property right=
s out of
>> thin air, or to codify rights which never existed in the first place.
>> (We=E2=80=99ve seen this happen to TV formats, for example). I have also=
 seen some
>> attempts by people and organisations to establish a copyright norm which
>> would beneficial to them by publishing papers making certain assumptions=
. I
>> therefore think that we should be extremely wary of setting licensing no=
rms
>> around AI-generated code, when the underlying ip rights themselves lack
>> clarity.
>>
>> Best
>>
>>
>> Andrew
>>
>> Andrew Katz
>>
>>
>> [1] https://www.legislation.gov.uk/ukpga/1988/48/section/9
>> [2]
>> https://en.wikipedia.org/wiki/Infopaq_International_A/S_v_Danske_Dagblad=
es_Forening
>>
>>
>> _______________________________________________
>> The opinions expressed in this email are those of the sender and not
>> necessarily those of the Open Source Initiative. Official statements by =
the
>> Open Source Initiative will be sent from an opensource.org email address=
.
>>
>> License-discuss mailing list
>> [email protected]
>>
>> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opens=
ource.org
>>
>
>
> --
> Shuji Sado
> Chairman, Open Source Group Japan
> https://opensource.jp/
> English blog: https://shujisado.org/
> Japanese blog: https://shujisado.com/
>
> _______________________________________________
> The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by t=
he
> Open Source Initiative will be sent from an opensource.org email address.
>
> License-discuss mailing list
> [email protected]
>
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.openso=
urce.org
>


--=20
Bruce Perens K6BP

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<div dir=3D"ltr">Andy,<div><br></div><div>Thanks! I did raise that concern =
while CERN OHL was drafted (although I&#39;m sure you already knew), and I =
am happy that the team paid attention to it. There are really two issues he=
re. One is CREATION OF NORMS. Capitalized because I want Open Source folks =
to keep it in mind. Courts look at informal norms and codify them, and this=
 is a tremendous risk to us. Second is that our community, in general, grea=
tly over-estimate the power of licenses and are unaware of the limits of co=
pyright.=C2=A0The worst case of course being the &quot;ethical&quot; licens=
es, but they do it every day. They are an unconscious force for creating in=
appropriate norms. They=C2=A0are surprised when companies blithely ignore t=
heir overestimations (although this is not the only reason companies ignore=
 license obligations) and this creates a conflict between the spirit and le=
tter of the license. And of course they are liable to be let down in court =
if they try to enforce their overestimations.=C2=A0</div><div><br></div><di=
v>=C2=A0 =C2=A0 Thanks</div><div><br></div><div>=C2=A0 =C2=A0 Bruce</div></=
div><br><div class=3D"gmail_quote gmail_quote_container"><div dir=3D"ltr" c=
lass=3D"gmail_attr">On Wed, Mar 18, 2026 at 6:46=E2=80=AFAM Shuji Sado &lt;=
<a href=3D"mailto:[email protected]">[email protected]</a>&gt; wrote:<b=
r></div><blockquote class=3D"gmail_quote" style=3D"margin:0px 0px 0px 0.8ex=
;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div dir=3D"ltr">=
<div dir=3D"ltr">Hi,<br><br>I agree that this mailing list often reflects a=
 US-law framing, and I also agree that differences across jurisdictions mat=
ter.<br><br>Even so, my own view is that, in practical terms, the treatment=
 of AI-generated code may not differ all that dramatically across many majo=
r jurisdictions, including the US, the EU, and Japan. The doctrinal routes =
may differ, but the basic result is often similar: copyright, if any, attac=
hes to the human creative contribution.<br>The UK may be a special case bec=
ause of CDPA 9(3), and China may prove more willing to recognize copyright =
in AI-generated works. <br>But I do not think most jurisdictions are moving=
 toward recognizing copyright in fully autonomous AI-generated code as such=
.<br><br>If that is broadly right, then the practical consequence is not th=
at copyright licensing suddenly stops working. Even if a software tool were=
 mostly AI-generated, the license would still operate with respect to the r=
emaining human-authored and copyrightable portions. The main difference acr=
oss jurisdictions would be the proportion of the work to which copyright at=
taches, rather than a fundamental change in the overall licensing structure=
.<br><br>That is why I am cautious about proposals like AI-MIT/AIAL. <br>A =
license can govern whatever rights exist, but it should not try to predeter=
mine, in the license text itself, the legal status of AI-generated portions=
 under different national copyright laws, and then attach special notice ob=
ligations or other conditions on top of that.<br><br>That, to me, is where =
the real risk lies.<br><br>Best,<br>Shuji</div><br><div class=3D"gmail_quot=
e"><div dir=3D"ltr" class=3D"gmail_attr">2026/3/18 20:38 Andrew Katz &lt;<a=
 href=3D"mailto:[email protected]" target=3D"_blank">andrewjskatz@gmai=
l.com</a>&gt;:<br></div><blockquote class=3D"gmail_quote" style=3D"margin:0=
px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><=
div>Hi Bruce<div><br>
</div>
<div><br><blockquote type=3D"cite"><div>On 17 Mar 2026, at 19:38, Bruce Per=
ens via License-discuss &lt;<a href=3D"mailto:[email protected]=
rce.org" target=3D"_blank">[email protected]</a>&gt; wro=
te:</div><br><div><div dir=3D"auto"><div>This is why I started deprecating =
Open Hardware licenses. Schematics are not currently copyrightable, and wha=
t if they were? Perhaps Horowitz and Hill&#39;s &quot;Art of Electronics&qu=
ot; textbook would be collecting royalties from every electronic product wo=
rldwide.=C2=A0</div><div><br></div><div><div dir=3D"ltr"><div dir=3D"ltr"><=
div>Bruce Perens K6BP</div></div></div></div></div><br></div></blockquote><=
/div><br><div>You raise a very good point, and I have a few observations:</=
div><div><br></div><div>1. (Not surprisingly) this list has a bias towards =
US copyright law, but it=E2=80=99s worth pointing out that the scope of cop=
yrightability (and similar IP rights) varies significantly from jurisdictio=
n to jurisdiction. In the UK, for example, computer-generated works are exp=
licitly given copyright protection (s9(3) CDPA 1988 as amended [1]). We als=
o have database right (as they do in the EU). Since open source licences ar=
e used worldwide, it=E2=80=99s sensible to take a global view where possibl=
e.=C2=A0</div><div><br></div><div>2. So far as schematics are concerned, th=
ey could *potentially*, if complex enough, be regarded as a database of the=
 nodes (although I admit it=E2=80=99s difficult to see how this does square=
 with some of the requirements for database right protection in the UK and =
EU), but, if hand-drawn, they would almost certainly under UK law, be regar=
ded as an artistic work, and they could, therefore, if machine generated, b=
e regarded as a computer generated work. (Of course, it may be possible to =
remove the expressive element from the schematics, but there=E2=80=99s curr=
ently quite a lot of tension in UK copyright law around the idea/expression=
 distinction. This partially arises from a difficulty in reconciling s9(3) =
and EU copyright law which requires that the work is the =E2=80=9Cauthor=E2=
=80=99s own intellectual creation=E2=80=9D [2]. EU Copyright law still unde=
rpins UK copyright law, despite the fiasco of Brexit.</div><div><br></div><=
div>This was a major concern when we drafted the CERN OHL because we didn=
=E2=80=99t want the licence to be seen as trying to exert any control over =
the use of non-copyright (or other wise non-IP-affected) materials. As it h=
appens, I think we could be more explicit about this point in the FAQs and =
rationale applicable to the CERN-OHL, and I may propose some amendments acc=
ordingly. (On re-reading, I spotted one assumption we made about enforcemen=
t of GPL by copyright holders only, =C2=A0which may not be universally corr=
ect any more, so that needs addressing).=C2=A0</div><div><br></div><div>3. =
I=E2=80=99m deeply concerned (and I think this echoes your concerns) that a=
cting as if IP rights exist, when they don=E2=80=99t, can be dangerous. Aft=
er a while, the courts (and even legislators) can rely on this =E2=80=9Ccus=
tom and practice=E2=80=9D to justify the creation of intellectual property =
rights out of thin air, or to codify rights which never existed in the firs=
t place. (We=E2=80=99ve seen this happen to TV formats, for example). I hav=
e also seen some attempts by people and organisations to establish a copyri=
ght norm which would beneficial to them by publishing papers making certain=
 assumptions. I therefore think that we should be extremely wary of setting=
 licensing norms around AI-generated code, when the underlying ip rights th=
emselves lack clarity.</div><div><br></div><div>Best</div><div><br></div><d=
iv><br></div><div>Andrew</div><div><br></div><div>Andrew Katz</div><div><br=
></div><div><br></div><div>[1]=C2=A0<a href=3D"https://www.legislation.gov.=
uk/ukpga/1988/48/section/9" target=3D"_blank">https://www.legislation.gov.u=
k/ukpga/1988/48/section/9</a></div><div>[2]=C2=A0<a href=3D"https://en.wiki=
pedia.org/wiki/Infopaq_International_A/S_v_Danske_Dagblades_Forening" targe=
t=3D"_blank">https://en.wikipedia.org/wiki/Infopaq_International_A/S_v_Dans=
ke_Dagblades_Forening</a></div><div><br></div><div><br></div></div>________=
_______________________________________<br>
The opinions expressed in this email are those of the sender and not necess=
arily those of the Open Source Initiative. Official statements by the Open =
Source Initiative will be sent from an <a href=3D"http://opensource.org" re=
l=3D"noreferrer" target=3D"_blank">opensource.org</a> email address.<br>
<br>
License-discuss mailing list<br>
<a href=3D"mailto:[email protected]" target=3D"_blank">L=
[email protected]</a><br>
<a href=3D"http://lists.opensource.org/mailman/listinfo/license-discuss_lis=
ts.opensource.org" rel=3D"noreferrer" target=3D"_blank">http://lists.openso=
urce.org/mailman/listinfo/license-discuss_lists.opensource.org</a><br>
</blockquote></div><div><br clear=3D"all"></div><div><br></div><span class=
=3D"gmail_signature_prefix">-- </span><br><div dir=3D"ltr" class=3D"gmail_s=
ignature"><div dir=3D"ltr"><div>Shuji Sado</div><div>Chairman, Open Source =
Group Japan<br><a href=3D"https://opensource.jp/" target=3D"_blank">https:/=
/opensource.jp/</a><br>English blog: <a href=3D"https://shujisado.org/" tar=
get=3D"_blank">https://shujisado.org/</a></div><div>Japanese blog:=C2=A0<a =
href=3D"https://shujisado.com/" target=3D"_blank">https://shujisado.com/</a=
></div><div><br></div></div></div></div>
_______________________________________________<br>
The opinions expressed in this email are those of the sender and not necess=
arily those of the Open Source Initiative. Official statements by the Open =
Source Initiative will be sent from an <a href=3D"http://opensource.org" re=
l=3D"noreferrer" target=3D"_blank">opensource.org</a> email address.<br>
<br>
License-discuss mailing list<br>
<a href=3D"mailto:[email protected]" target=3D"_blank">L=
[email protected]</a><br>
<a href=3D"http://lists.opensource.org/mailman/listinfo/license-discuss_lis=
ts.opensource.org" rel=3D"noreferrer" target=3D"_blank">http://lists.openso=
urce.org/mailman/listinfo/license-discuss_lists.opensource.org</a><br>
</blockquote></div><div><br clear=3D"all"></div><div><br></div><span class=
=3D"gmail_signature_prefix">-- </span><br><div dir=3D"ltr" class=3D"gmail_s=
ignature"><div dir=3D"ltr"><div dir=3D"ltr"><div>Bruce Perens K6BP</div></d=
iv></div></div>

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