What IP law would apply to trained weights of an AI model?

Question

In simple terms, any AI system will consist of three elements:

1. Code, written by humans, that defines the mathematical model
2. The mathematical model itself, as it exists within the computer
3. The model weights, millions or billions of parameters that are tuned by the training process

As far as intellectual property law is concerned, I think I know how the first two would be handled:

The code is a creative expression by the coders, and so copyright would apply.

The mathematical model is defined by the code, but can be expressed in other ways. Here is a diagram of the structure of such a model, that along with the paper it is in should allow one to recreate the model without creating a derivative work of the actual code that was used to create it in the first place. I THINK patent law not copyright would apply to this element.

The weights I am not sure of. These have been generated without any human creativity, the model has been run against large amounts of data and the weights built up. This is however a very expensive process, costing lots of computer time with means electricity. Would there be any intellectual property law that applies to these weights?

This is particularly relevant now as the 65B weights for Facebook LLAMA have leaked. My understanding is that Meta has released the code under a non-permissive no commercial use licence, and only released the trained weights for much smaller model. This leak allows anyone technically to run the full model (if they have a $20k graphics card, or do it "on the cloud"). However could they do it legally? Assuming they could recreate the model without creating a derivative work (perhaps using clean room techniques ) could someone use this model without restrictions?

Answer 1

There might be patents to the methodology used to get the AI to learn

A methodology can be patented, and thus limited in who may use this particular way.

The base code is copyrighted

The base code of the AI, which makes the computer evaluate different outcomes and test the inputs against its outcomes is copyrighted by the making company.

The pure product of AI is uncopyrightable and unpatentable

The US Copyright office declared that AI products do not have an author. As such, AI-generated forms of expression, including algorithmically generated weights, do not benefit from any copyright.

Likewise, the USPTO has declined multiple applications in which an AI was listed as the sole inventor. Their current stance is, an AI can't be an inventor, if anything the human feeding the AI could be one. This is based on a 2012 case, in which the SCOTUS decided that an individual is always a human.

As such, AI-generated weights cannot be copyrighted or patented.

The weights might be trade secrets

It's unclear if the weights are the product of a human maker using an AI as a tool, or a pure AI work. As such, their copyright status is unclear.

However, they might be protected as trade secrets, and as such disclosure, acquisition and usage of them could be illegal. Trade secrets and their products are generally licensable.