Covers are generally transformative, right?

Edit: I guess even if they are SCOTUS recently decided that even transformative works can infringe if they compete commercially. So the question is not: “did the reciter make money performing”, it’s “did the reciter’s performance detract financially for the original artist”.

Song covers are also a special case with something called a "compulsory license" where the copyright owner is required to license it to you, can't be denied. You just do it and and pay them preset royalty rates.

That is only if it is recorded. You can't get a "compulsory license" if you are going to perform that cover in front of an audience. That you have secure from the rights holder.

No, covers aren’t considered transformative. I think a great deal of this discussion comes from people not understanding copyright.

https://attorneyatlawmagazine.com/public-articles/intellectu...

I personally think our law regarding covers has been heavily influenced by record labels and is wrong about them, in practice. I’ve already heard the original enough times that if I want to hear a string quartet perform Viva La Vida it’s because it’s a new refreshing piece of art. The whole compulsory license thing indicates the law got it wrong. Anyway…

The song is distinct from an artists performance of that song, but let’s move outside of music to books etc.

Suppose A creates an epic poem, B does a poetry reading aka a performance of A’s poem. C plays that recording back in public. D reinterprets the poem making a new public performance. B can successfully sue C but not necessarily D if it’s sufficiently distinct. A however can potentially sue D, C, and B if none of them got the rights.

This is why JK Rawling got paid by the people making Harry Potter movies, she could sue if they didn’t pay. Trademarks may also be involved, but even without that if you want to make an MMORPG based on The Dresden Files or whatever be prepared to fork over cash. Unless you follow the Disney approach and use public domain works.

'Covers' require the payment of ASCAP fees -- usually done by the facility, not the performer, but if the facility does not pay, the performer can be liable. You even need a license to put a jukebox in your bar, so that argument doesn't hold up.

Being paid is not what makes it into a performance. Having an audience, and the purpose of the recitation, are what make it performance.

If I pay a babysitter to look after my kid and they sing the child a song to get them to sleep, it’s not an infringing performance.

even if you are paying ChatGPT to answer your questions, if you ask it to tell you the lyrics of a song and it does so, that is not necessarily infringing.

If I am preparing a legal brief for a copyright case, and I pay a paralegal to transcribe the lyrics of a song, and they do so and send them to me in an email… is that copyright infringement? It seems very unlikely.

I just can’t come to any position on LLMs other than that the users of the LLM have to be held responsible for how they choose to use the output, not the LLM provider.

LLMs need to be aware of the content of copyrighted works in order for them to be able to fully and comprehensively communicate with humans who are immersed in and aware of the content of copyrighted works.

If the LLM is recognized as infringing, could any book Publisher sue HP when someone prints a copy of their book through HP Smart?

that's only half of it, the half that's been litigated via Xerox and Betamax, no - the manufacturer is not liable for what end users do with their product.

But what Xerox and Sony didn't do to build their machines is pirate everything they could get their hands on as a part of the manufacturing process.

Who says OpenAI pirated it? Unless the content was pirated in the first place simply showing it to an LLM is just like letting your friend borrow your book.

When Google crawls websites to build a search index, we don’t expect Google to pay royalties… all these analogies at least demonstrate that copyright is impossible to apply consistently and our notions about what’s fair are wholly subjective.

> Is that human earning money by reciting the lyrics? If so, that's already not allowed.

This is a common copyright misconception. Whether or not you earn money from it doesn't determine whether or not it's a performance of the work.

True, my point was that the LLM is performing for the public. Thanks for the clarification.