The Empty Grant: AI-Generated Code Creates Unenforceable Licenses

AI-generated code is not copyrightable, which means it cannot carry license conditions. The license text still exists. The grant it makes is empty. The D.C. Circuit held in Thaler v. Perlmutter that the Copyright Act requires a human author. The Supreme Court declined to hear the appeal (March 2026). The Copyright Office confirmed that prompting an AI does not constitute sufficient human authorship. Code without copyright falls into a legal void: not public domain (no affirmative dedication), not proprietary (no copyright to assert), not open source (no license that can attach). This is the structural mechanism by which AI undermines open source licensing from the inside.