The concept of fair use applies to small volumes of work.

Clearly, training on large volumes of data is not small volumes in any sense of the word. The argument that it is fair use is itself flawed.

Absolutely incorrect, fair use applies to *reproducing* small volumes of work, not analyzing it. If I published an article gleaning some conclusion based on an analysis of 10,000 issues of the New York Times, that would still 100% be fair use; similarly, Google is absolutely allowed to publish word count metrics based on their scanned book repo, even though publishing the books themselves is not fair use. You are trying to read something into the fair use doctrine that is absolutely not there (to the extent that anything is there, which very little is other than "I'll know it when I see it" and prior case law, unfortunately).

When I fair use a small quote from a book, I may have read the whole book.

Now I'll go the other way and wonder if it should still fall under fair use if I respond to requests for small quotes programmatically and eventually quote the entire book.

Or here is the real analagous question:

Fair use is about more than just the size of the excerpt.

If you write an article about good writing, and quote a choice paragraph from someone else's work to show an example, and credit that quote, that is fair use.

Is it fair use if you read an awesome paragraph, something that really is the result of the authors unique intellect and effort and craftsmanship, and makes you think "damn", and then drop that same jewel into your book?

You can probably get away with it, because you probably just won't be able to convince a judge that any single paragraph is that big of a theft.

But I don't mean to ask if you can get away with it, I mean to ask if it should be considered fine honorable behavior.

The difference is, the paragraph isn't being included for examination or comment or transformation, it's being included to directly copy and perform it's original function as part of what makes a work a great work, and, it's not being credited in any bibliography.

This is what copilot is doing, or rather it's facilitating people doing it, as far as I can tell.

The original snippets are functional not there for examination, copied verbatim not transformed (sometimes), and not credited.

Most of it comes from open source works anyway and most authors would probably be fine with it if the stuff was simply credited.

I think a key thing here is your identification of a paragraph. Nobody would think to exert copyright over individual words. Phrases and epigrams are considered worthy of attribution, but only in exceptional cases. Copying sentences is starting to get into plagiarism, though single sentences would usually be forgiven because noting or remembering a single sentence while forgetting the source is an easy mistake to make. Copying whole paragraph, by contrast, is unlikely to be casual.

I think in programming therms a useful parallel might be copying at the module rather than the statement or function level. For example, if I write some code prompts to do the following:

  - validate my API key with Twitter
  - solicit the input of a Twitter username
  - download the up to 500 of that user's tweets
  - convert the json to a dataframe
  - plot the derivative of the intervals between tweets

...many of those tasks can be fairly described as helper functions, either taken directly from documentation (like interfacing with an API) or being so elementary as to be generic. If any one of these tasks happened to come from your code or mine, and the rest from other programs, it wouldn't feel like much of an infringement. If all of them came from the same body of code, it would.

The comment is a quintessential HN comment: all tone, little substance. It just claims that it's fair use because the AI learns things, which is not a criterion for fair use at all. People here just throw around fair use as a catch-all term for everything that should be allowed based on their personal gut feeling.

> I think OP explains clearly, in many paragraphs, why it's fair use. That's literally what their whole post is about.

Actually, what the OP said is, "is typically or commonly a fair use under existing law, because the AIs can and commonly do learn non-copyrightable elements and aspects of those works". The rest of the eight paragraphs had nothing to do with fair use.

It's honestly a ridiculous argument to say that learning one non-copyrighted thing means that the regurgitation of another copyrighted thing, after stripping the license, will magically be fair use.