Just like during the pandemic how everyone became an epidemiologist, suddenly everyone's a copyright lawyer. I'll just dispute your assertion by saying:
1. Questions of fair use are famously gray, and anyone who declares something as "entirely fair use", with no caveats, is nearly always wrong except for the must obvious cases, which the given example is most definitely not. A judge has wide latitude in determining fair use.
2. People should familiarize themselves with the four factors of fair use determination. In particular, if a work is purely derivative of a source work and substantially negatively impacts the market for the original work, it's very likely to not be considered fair use.
A great overview is https://fairuse.stanford.edu/overview/fair-use/four-factors/
Roll back 20+ years ago on Slashdot and you'll see the exact same thing.
Copyright has been a hot button issue on the internet for decades. People end up thinking (rightly or wrongly) that they understand it without being a lawyer.
It's very possible that the example provided above is an example of fair use in some country, and that the website offering that service could be hosted there.
Quite literally, not even the lawyers or courts understand it. This is very much a "learn as you go" exercise for humanity in general at this point in time.
I only see this phenomenon speeding up. Strange times.
This is just a felony contempt of business model issue. Computers invalidated their business models and they're doing everything they possibly can to hang on for dear life. Society needs to move on already.
Books are just strings of letters, yet copyright has still been useful to increase the volume and utility of books.
All that said, I do find the life+70y an absurdly long time.
What do you propose is the business model for artists in the absence of copyright?
We must strengthen these business models that don't depend on artificial scarcity because this number selling nonsense was over the second computers were invented. It's as dumb as asserting that you need permission to use memcpy or the mov CPU instruction.
In the US, the original copyright length was 14 years, and then 28, and eventually the lifetime of the author plus 70 years. I think the intent of the law is economically justified, but the current length is outrageous.
This is how art worked for millenia; someone commissions a chapel roof painting, someone commissions a concerto, someone commissions a statue, someone buys a chair, etc.
Artists still do this today, and there is no issue determining value beforehand. Artists list their commission prices, or their hourly costs, etc. This is a perfectly normal thing that happens everyday.
It seems to have been invented by laywers, for lawyers. Nobody else really benefits as much as they do. The whole entirety of society vs. a single profession of dubious morality.
meanwhile, most tech is moving towards subscriptions?
Art is getting paid "non-greedily". People buy a song or art piece, and then people 10 years later buy a song or art piece. That's not one person paying twice for the same song, it's two people buying the same thing.
If people still value that art for that price later, I don't see how this is a "greedy" thing. is art magically supposed to turn open source CC0 after 5 years? Tech sure doesnt work like that.
But ok so I'm a young musician. Nobody's heard of me and nobody wants to commission a concert or album. What do I do? Quit?
@Vicinity9635 It's not just lawyer greed, it creates economic fairness by preventing others from profiting from your creative work.
In the current system, artists might work for many years on a single work, or work many years perfecting their craft before anyone wants to pay for their work. Copyright gives them a way to earn money in the future that compensates them for the work they did in the past. It incentivizes creativity. Don't get me wrong, I don't think copyright is perfect, but you really ought to think more about the system you're proposing, because it's not making much sense.
(full disclosure, I’m a techie who’s gradually woken up to the idea that the tech might just be the most abused way to exploit people)
It's a bit ironic, because a lot of tech offers partial compensation in stock. Something else that really doesn't happen in games unless you work for like, the 3-4 largest studios. So they should at least understand that your compensation is not all based on labor for time worked.
that's gone out the door in the digital age. Compaies at this point have spent centuries trying to enfoce this model while witholding stuff like stock and royalties to take a part of what the company enjoys by protifting for decades off of a single (underpaid) piece of labor.
I don't exactly sympathize with a robot now trying to do the same. Pay your labor.
I don't know. Anyone funding the work is accepting a risk.
> Should they not have been paid after 1991?
They definitely should get paid for their shows and live performances. The band itself can't be copied. Artists are extremely scarce.
Their art, however, is not. Once created, the scarcity of their recordings is artificial and fundamentally time limited anyway. Even if I were extremely tolerant of copyright, I'd argue for a term of only 5-10 years maximum with absolutely no possibility of extension.
In other words, even if we accept copyright as legitimate, they sure as hell shouldn't still be getting paid for some late 80s album. They've already been adequately compensated for those creations. If they want more, they should have to keep making new stuff so that they can benefit from new copyrights which will also expire after a short time.
Creators are not supposed to be able to strike gold once and then enjoy eternal royalties. Copyright must have short time frames or it's in breach of the social contract. The reality is we're doing creators a favor by pretending that it's hard to copy their stuff so they can make some money. We do this because they assured us that eventually all of it would belong to us: works would the public domain.
The copyright industry isn't keeping up their end of the bargain. They continuously pull the rug out from under us by extending copyright to the point we'll be long dead before our culture is returned to us. It's offensive and we should all stop pretending. They need reminding that public domain is the natural and default state of all intellectual work.
> How would you predict that value before its creation (or even after)?
I'd look at the artist's past work. If there is no past work, then I don't know.
> If you're saying that only the labor has value
I'm not saying that at all. Creations are valuable. Creators are valuable. The labor of creation is valuable.
Value is assigned to stuff by humans. Obviously humans value art. The price however is given by supply and demand. The fact is that supply of intellectual works approach infinity after they are created and therefore their prices approach zero. So it makes perfect sense to assign prices to the labor of creation but zero sense to assign a price to the product of creation. Copyright is an exercise in denying reality.
> and all labor is valued equally
I definitely did not say that. All labor is different. I value some creators a lot more than others. Some creators I don't value at all.
> that sounds sort of like marxism
I must apologize if I gave that impression. I hate marxism.
Why not? The fact is that even if the album is free, there will be people paying spotify $10/month to listen to it on demand. How is it fair that Spotify can profit from it for decades to come because they offer convenience, over the artist who made the music 10 years earlier and now relinquishes their art not even a quarter into a typical career?
Copyright is abusrd now, but it's not a bad concept. I think the original copyright law of 14 + 14 worked well enough. Life expectancy increased so I'd increase it to 14 + 14 + 14 (or 10 years after the death of the original author, whatever comes first). You fund an artist for their typical career length (if they choose to extend twice) and once they are (near) retired the song is free to work off of. In the meantime you simply negotiate if you want to use their work.
Copyright means that you need to at least pay that artist you stole from in some way, which the government enforces so artists don't stop creating.
CliffNotes, Wikipedia, etc. have huge quantities of summarized copyrighted work.
Second, you ignored the "purely derivative" bit. You have to look at to what extent the use is derivative or transformative. See https://en.wikipedia.org/wiki/Transformative_use for a bit about that. (Note, this is a legal term defined by various precedents. OpenAI can't just argue, "Turning it into an LLM is a transform, so it is transformative!") Since CliffNotes is educational and Wikipedia is nonprofit, it is relatively easy for both to qualify as transformative.
As a result your response underscores the point that was made. There are a lot of shades of grey. You really can't just seize on a couple of phrases and key points, then jump straight to the answer. You have to understand how the courts will decide, and then accept that there is an actual judgment call whose outcome depends on the judge judging.
(I'm not a lawyer, but I have had excessive exposure to them in the past.)
Is there data that supports this? I’d be interested to know what % of people who buy a Cliffs Notes have already _bought_ the original.
But, anecdotally, it's what I've seen to be the case.
Yes.
For example, Wikipedia cites many research journals that otherwise are available only by subscription.
Prior to Wikipedia, gated information centers were the norm.
The question was NOT whether it spreads information from the articles to people who wouldn't have paid for it. The question was whether it suppresses sales of the articles to people who otherwise might have paid for it.
That's a more complicated question of fact. Some people now read Wikipedia and won't buy the article. Some people encounter the reference on Wikipedia and decide to buy the article. Which happens more?
I don't have data. But publishers do. And https://scholarlykitchen.sspnet.org/2022/11/01/guest-post-wi... shows what publishers concluded.
Publishers concluded that Wikipedia references are good for sales. And so jumped on the chance to cooperate with https://wikipedialibrary.wmflabs.org/. Which is therefore able to give free access to 90% of subscription only databases to you if you can prove that you're the kind of person who is likely to add citations to Wikipedia.
Legal questions are funny like that. You have to answer the question actually asked. If you merely answer another one that sounds similar to you, your answer is generally wrong.
You're the one presenting unfounded claims with confidence here. There is well established case law about not being able to copyright facts. If you are actually fully paraphrasing a presentation of facts / ideas and not just altering a couple of words here and there, then there is a very strong case for non-infringement.
No, I'm not. On the contrary, I'm really looking forward to this case because I believe it will be a great test of a bunch of concepts that are totally novel in the world of copyright law as it applies to generative AI. The only things I am presenting with confidence are:
1. That anyone who declares that something is unambiguously fair use (or, contrarily, unambiguously infringing) is likely wrong. There is simply too much latitude by judges, and there have certainly been cases where a ruling went one way, only to be overturned on appeal.
2. While I certainly have an opinion on how I think this case will be decided, I'm not presenting that with unwarranted confidence. Instead, I linked that great article on the 4 factors of fair use determination because it's clear to me lots of people are saying "fair use!" on one side or the other with no understanding of the factors judges must actually consider when making a determination.
However, none of that matters in this particular thread. There are well established precedents about paraphrasing news articles and they do not support the claim you made
Remember. The NY Times does not have a record of filing frivolous lawsuits. Particularly not against companies with deep pockets. So it is almost certainly true that a lawyer who knows the law better than you thinks that this has a real chance. So you should be looking for flaws in trivial defenses that you can think up, rather than assuming that you know best.
For example take your copyright facts defense. That would be great if the NY Times was a phone book. They aren't, in addition to facts they offer analysis, editorial positions, and so on. For example I just asked ChatGPT, "In 2016, did the New York Times generally support or oppose President Trump?" I got back an answer talking about various kinds of concerns that the New York Times had, including an editorial titled, "Why Donald Trump Should Not Be President". The copy that ChatGPT needed to have to do that has a lot more than just facts in it.
Now if you paraphrased the NY Times like ChatGPT did when it answered me, you'd have a perfect fair use defense. But you aren't doing it for money, you didn't make a copy of all the NY Times, you aren't destroying the market for the NY Times, and you're legally able to own copyright in your transformed work. OpenAI is doing it for money, did copy all of the NY Times, is seriously impacting the market for NY Times articles, and ChatGPT generated text does not get a copyright.
Fair use is filled with shades of grey. Even if ChatGPT appears to do the same thing that you do, it is far less clear that OpenAI will enjoy the same level of fair use defense.
> They aren't, in addition to facts they offer analysis, editorial positions, and so on.
Those opinions and ideas are also not copyrightable. Only expressions of them are copyrightable, which is why paraphrasing facts, ideas and opinions is not a violation of copyright.
> Fair use is filled with shades of grey.
Yes, but not all those shade are equal. There is a long history of litigation showing that paraphrasing news articles is fine.
This is the weakest part of the case(s) against OpenAI. "Derivative work" is a legal term of art meaning a direct adaptation, like writing a screenplay of a book or translating a book into another language.
NYT has a stronger case than Sarah Silverman here because they can show actual 'memorized' text rather than just summarization, but given that those memorizations are a) an unintended failure mode of the training process, and b) from an older version of the model that has been updated to no longer regurgitate memorized text, it's not really clear how in current form GPT could possibly be considered a derivative work.
The latter is more defensible.
On the other hand, it's understandable why NYT is worried. OpenAI itself says that occupations like: Writers and Authors, Web and Digital Interface Designers, News Analysts, Reporters, and Journalists, Proofreaders and Copy Markers are "90-100% exposed" to what OpenAI is building.
I don't care that the car replaced the horse carriage because it didn't need to compensate horses nor handlers to do so. AI being the newest iteration of scraping data from artists, writers, etc. to profit millions off of is directly using the "horse handler's" work. If these LLM's threw NYT a royalty to use their articles as training material, there wouldn't be a lawsuit.
I have worked on many documentaries and any time we said “fair use” internally what we were implicitly saying is “nobody will come after us because they know that we are probably safe under fair use if this escalated.“ But again, we could never preemptively apply it. We were just anticipating potential conflict and gauging how likely it was to occur.
If that were true, I could take a band that I hate, copy all of their music note-for-note, then release an exact copy on the market and undercut them by selling their entire discography for $0.01
Fair Use requires one of several enumerated activities, including satire, education, journalism. You can’t just copy content and hope that it passes Fair Use.
Hire a lawyer if you are unsure. But at least read the Wikipedia article on the subject if you are going to talk about it.
In the US, whether or not you make money has little to do with whether or not your use qualifies as "fair use".
That a use is noncommercial is often a deciding factor in the success of a fair use defense. GP is overstating it though, since it’s still one of many factors.
But what I was arguing was that a use is not "fair use" merely because it's noncommercial in nature. I cannot make copies of movies and give them away on the street for free and successfully claim "fair use".
> In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying.
Weird Al has made a fantastic living copying music while only changing lyrics. He makes very heavy use of the satire plank of Fair Use.
The “commercial” test is only part of the decision criteria for Fair Use.
"Does Al get permission to do his parodies?
Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties."
The fact that he could rely on fair use is separate from whether he as an artist does rely on fair use.
The "commercial" test is only a part if the criteria and not necessary, but to say it has little impact is clearly false.
Not only does he get permission from the original authors, he also pays royalties to the authors despite legally not having to do so.
Based upon what? You think other publishers use NYTimes articles for free without license?
Presumably, if it can remember at least a paragraph or two of each article, then surely the same would be true of any text it ingested and the model size would approach the dataset size (probably actually much larger). I don't believe this is the case at all, even searching around, I've not found any good recent examples of it regurgitating copyrighted text verbatim.
It's cool to hate AI stuff if you're a creative atm. But gotta love those generative/algorithm based PS brushes, that's still real art!
"Indeed, the opening paragraph of "A Game of Thrones" by George R.R. Martin, with the chapter titled "Bran," starts as follows:
"The morning had dawned clear and cold, with a crispness that hinted"
And then it cuts off, whether that's because OAI now have an oh shit filter or just the model had access to the first page or publicly available articles quoting the first line, I'm not sure.
I tried other chapters and random sections and it could get a sentence or two right but then hallucinated; what's more likely NYT and GRRM? That your works are being reproduced verbatim? Or that Facebook, YouTube descriptions, fan tumblrs and hell, the publicly available and multiple GoT related wikis that include a variety of passages from the books were used as training data?
"It could be fair use if conditions a, b, and c are met. Condition a means..." ;)
I think what wouldn't be covered is reproducing substantial portions of an article, especially if it's done without attribution. Tier 2 publications that fully reprint NYT or AP/Reuters articles are usually doing this via a paid News Service or Content License. See: https://nytlicensing.com/content/new-york-times-news-service...
I hope the NYT prevails here, personally. Models will (and are) currently tainted by data they should not contain and for longer term privacy concerns this needs to be addressed early and have significant consequences or we're headed towards a world where this type of technology will make our ad-targeted world seem like a much more manageable past.
Not only that, look at a few news articles from Tier 2 and down publications, and you'll realize that almost all of them are directly sourced from NYT and others. They'll say "so and so happened, according to The Times" (and usually link the article there)