That's a big if. Sure the librarian of congress could justifiably issue an exemption, but i think it is far from garunteed that they would.
I think you are underestimating what a cooling affect FUD related to anticircumvention could be. Just consider all the stuff related to dvds that went down back in the day e.g. Dmitry Sklyarov being arrested at defcon (even if it didn't stick). The uncertainty could definitely have a major cooling effect.
I think you are overestimating it. Because you overestimating the degree to which the present legal context is similar to when DeCSS was an issue, and because you are underestimating the degree to which the financial and political power imbalance between the xxAAs and the other side was key to the effect then, and because you are misunderstanding who is doing the thing this most effects, before countermeasures (its not the easily deterrable parties), and because you are (based on the circumvention POCs) overestimating the degree to which any controllable specialized circumvention tool is needed to circumvent this type of “protection”.
I agree that power imbalance is a significant factor that is different. Fair point.
Why would these parties not easily be deterred by legal concerns? Well there are a variety of groups in this space, many of them are corporate/start ups, and usually they are more adverse to legal risk than your average pseudo-anonoymous citizen.
It does, though.
> This is a hedge against courts deciding scraping data for training purposes is valid.
For that hedge to work, though, it needs:
(1) Not to substantially degrade the art it is used on, and
(2) [To protect anyone other than a major player against other major players] ] Not to be trivially bypassed by in a way that can be incorporated in automated workflows.
> now you are applying a filter (creating a derivative work) to defeat a copyright protection mechanism, both clearly prohibited in current law (US jurisdiction at least).
If the Fair Use exception applies to training an LLM (which is creating a derivative work, itself, before considering Fair Use), then its extremely clear that applying a filter to incoming works as part of that process (even if not if the filtered work was used for any other purpose) will also be protected. So the derivative work thing is useless.
The circumvention measure thing might technically work (in that it interjects a violation into a workflow that would otherwise be Fair Use), but as a practical matter that doesn’t matter for most users or against most violators. Moreover, to the extent its primary effect would be to adversely impact otherwise noninfringing use, it would be a textbook case of a justification for the Librarian of Congress issuing a DMCA exemption, which would then negate the legal utility entirely.
> For any serious player making tools, you’ll specifically avoid defeating these techniques. For any minor player you’ll now have to go to the backwaters of the internet for tools to do this that you hope won’t steal your bitcoins.
The proof of concept defeats already demonstrated use…the same tools that are used for AI image generation and training models on artist styles in the first place.
> Every notable artist will be only upload their art to sites that offer something like this
The samples I’ve seen of the damage this does to art suggests that this isn’t the case.
> This isn’t a technical solution to this problem, it’s a political solution that happens to use tech.
It’s neither, its just a non-solution.