This isn't about giving "rights" to machines. Machines are just tools. The question is about what humans are allowed to do with those tools. Are humans using AI models and humans not using AI models equivalent actors that should have the same rights? I'd argue emphatically yes they should.

The thing is, we already have doctrine that starts to encompass some of these concepts with fair use.

The four pronged test in US case law:

- the purpose and character of use (is a machine doing this different in purpose and character? many would say yes. is "ripping-off-this-artist-as-a-service" different than an isolated work that builds upon another artist's art?)

- the nature of the copyrighted work

- the amount and substantiality of the portion taken (can this be substantially different with AI?)

- the effect of the use upon the potential market for the original work (might mechanization of reproducing a given style have a larger impact than an individual artist inspired by it?)

These are well balanced tests, allowing me as a classroom teacher to duplicate articles nearly freely but preventing me from duplicating books en masse for profit (different purpose; different portion taken; different impact on market).

The problem with this conversation is that its being had by people that make the top level comment here stating that clothing is not copyrightable. It is. Clothing design is copyrightable. This was a huge recent case, Star Athletica. They know nothing about copyright law and they just build intuitions from the world around them, but the intuitions are completely nonsense because they are made in ignorance of the actual law and what the law does and why the law does it. I find it exhausting.

Your sentiment is probably correct in that there are many aspects of copyright law that are not strictly aligned with the public’s intuition. But your example is a bit of a reach. Star Athletica was a relatively novel holding that allows for a specific piece of clothing, when properly argued, could qualify as copyrightable as a semi-sculptural work of art, however this quality of a given piece is separate to its character as clothing. In fact, the USSC in Star Athletica explicitly held a designer/manufacturer has “no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions” to clothing which they design/manufacture. That quote is directly from a discussion of the ability to apply copyright protections to clothing design. I think the end result is that trying to argue technical legal issues around a poorly implemented statutory regime is always fraught with errors. That really leave moral and commercial arguments outstanding and advocacy should try and focus on that, when not fighting to affect change in the law these copyright determinations are based on.

And just to be clear, this post does not constitute legal advice.

You're dismissing my comment because of what someone else said upthread?

I hate the desire to meta-comment about the site rather than argue on the merits.

We obviously don't know so much about how courts will interpret copyright with LLMs. There's a lot of arguments on all sides, and we're only going to know in several years after a whole lot of case law solidifies. There are so many questions, (fair use, originality, can weights be copyrighted? when can model output be copyrighted? etc etc etc). Not to mention that the legislative branch may weigh in.

This discourse by citizens who are informed about technology is essential for technology to be regulated well, even if not all participants in the conversation are as legally informed as you'd wish. Today's well-meaning intuition about what deserves copyright and why inform tomorrow's case law and legislation.

> Emphatically no they shouldn't. The capabilities are vastly different. Fair use should not apply to AI.

Fair use applies even to use of traditional algorithms, like the thumbnailing/caching performed by search engines. If I make a spam detector network, why should it not be covered by fair use?

Fair use applies to humans and the things they do (including AI). It is not something that applies to algorithms in themselves. AI's are not people, the people who use them are people and fair use may or may not apply to the things they do depending on the circumstances of whatever it is they do. The agent is always the human not the machine.

True; consider the "it" in my question ("If I make a spam detector network, why should it not be covered by fair use?") as "my making (and usage) of the network".

No idea on the legality, but common sense suggests that the difference would be that a spam detector doesn't replace the products that it was trained on, while AI-generated "art" is intended to replace human artists.

The question is "is it a derivative work of the original?" - not if it is a generative work.

If that was the distinction to be made, using ChatGPT as a classifier would be acceptable while using it to write new spam (see the "I am sorry" amazon listings of the other day) would be unacceptable.

If two different uses of a tool allow for both infringing and non-infringing uses (are photocopiers allowed to make copies(!) of copyrighted works?) it has generally been the case that the tool is allowed and the person with agency to either use the copyrighted work in an infringing or a non-infringing way is the one to come under scrutiny.

I believe that if it is found that OpenAI is found to have committed copyright infringement in training the model, then an argument that training a model on spam be considered to be copyright infringement could be reasonably constructed.

If, on the other hand, OpenAI is found to have sufficiently transformative in its creation of the model and some uses are infringing, then it is the person who did the infringing (as with a photocopier or a printer printing off a copy of a comic from the web) that should be have legal consequences.

Yeah, I really think it should fall on the user as opposed to the tool.

> common sense suggests that the difference would be that a spam detector doesn't replace the products that it was trained on

The extent to which it supplants the original work is one of the fair use considerations.

I think it'd make more sense to have a stance of "current LLMs and image generators should be judged by fair use factors and I believe they'd fail", though I'd still disagree, instead of having machine learning models subject to a different set of rules than humans and traditional algorithms.

That is indeed the most common stance. There isn't nearly as much outcry over, say, image classification by LLMs, as there is over AI "art" generation.