No Man’s Skynet: Copyright in Procedurally Generated Programs

No Man’s Sky, a highly anticipated video game released this summer, allows players to explore a massive game world consisting of eighteen quintillion planets. Creating this much content would have been impossible for human game designers, so Hello Games used a technique called procedural generation. This technique relies on a computer program to design much of the game content, with the human developers creating a framework around which the AI designs the content. Legally, however, there is a catch to procedural generation. Generally, only content created by humans can receive copyright protection, and U.S. legal authorities do not agree on whether copyright in content can be vested in the creator of the computer program that creates the content. The Copyright Office takes the position that it cannot, but the Second Circuit, at least for relatively predicable programs, has taken the position that it can. There are other problems with granting copyright for procedurally generated content aside from the immediate author lacking legal personhood. Programmers can easily create algorithms that would fence off vast amounts of creative real estate. A useful example is the Library of Babel. This website contains every possible combination of 3200 characters, including this very article. Jonathan Basile certainly does not own all future one page writings. So any doctrine that allows copyright in procedurally generated works would have to contain a limiting principal that would exclude that outcome. With the law uncertain, game developers might take the cautious approach and assume that they cannot get copyright protection in their procedurally generated content. Even under this assumption, the scope of the rights lost by employing procedural...