There’s also the moral question. Should creators have the right to prevent their bits from being copied at all? Fundamentally, people are upset that their work is being used. But "used" in this case means "copied, then transformed." There’s precedent for such copying and transformation. Fair use is only one example. You’re allowed to buy someone’s book and tear it up; that copy is yours. You can also download an image and turn it into a meme. That’s something that isn’t banned either. The question hinges on whether ML is quantitatively different, not qualitatively different. Scale matters, and it’s a difference of opinion whether the scale in this case is enough to justify banning people from training on art and source code. The courts’ opinion will have the final say.
The thing is, I basically agree with you in terms of what you want to happen. Unfortunately the most likely outcome is a world where no one except billion dollar corporations can afford to pay the fees to create useful ML models. Are you sure it’s a good outcome? The chance that OpenAI will die from lawsuits seems close to nil. Open source AI, on the other hand, will be the first on the chopping block.
really it seems more like someone was afraid of angering Nintendo who is a corporate adversary one does not like to fight and thus it has a bunch of blocks to keep from generating anything that offends Nintendo, that does not really translate to quickly and easily stopping and blocking offending generations across every copyrighted work in the world.
What I don't understand (as a European with little knowledge of court decisions on fair use): with the same reasoning you might make software piracy a case of 'fair use', no? You take stuff someone else wrote - without their consent - and use it to create something new. The output (e.g. the artwork you create with Photoshop) is definitely not copyrighted by the manufacturer of the software. But in the case of software piracy, it is not about the output. With software, it seems clear that the act of taking something you do not have the rights for and using it for personal (financial) gain is not covered by fair use.
Why can OpenAI steal copyrighted content to create transformative works but I cannot steal Photoshop to create transformative works? What am I missing?
That's not a good example. Making a copy of a record you own(as an example ripping a audio CD to MP3) is absolutely fair use. Giving your video game to your neighbor to play - that's also fair use.
Fair use is limited when it comes to transformative/derivative work. Similar laws are in place all over the world, just in US some of those come from case law.
> With software, it seems clear that the act of taking something you do not have the rights for and using it for personal (financial) gain is not covered by fair use.
> Why can OpenAI steal copyrighted content to create transformative works but I cannot steal Photoshop to create transformative works?
That's not a good analogy. The argument, that is not settled yet, is that a model doesn't contain enough copyrightable material to produce an infringing output.
Take your software example - you legally acquire Civ6, you play Civ6, you learn the concepts and the visuals of Civ6... then you take that knowledge and create a game that is similar to Civ6. If you're a copyright maximalist - then you would say that creating any games that mimic Civ6 by people who have played Civ6 is copyright infringement. Legally there are definitely lower limits to copyright - like no one owns the copyright to the phrase "Once upon a time", but there may be a copyright on "In a galaxy far far away".
If Photoshop was hosted online by Adobe, you would be free to do so. It's copyrighted, but you'd have an implied license to use it by the fact it's being made available to you to download. Same reason search engines can save and present cached snapshots of a website (Field v. Google).
In other situations (e.g: downloading from an unofficial source) you're right that private copying is (in the US) still prima facie copyright infringement. However, when considering a fair use defense, courts do take the distinction into strong consideration: "verbatim intermediate copying has consistently been upheld as fair use if the copy is ‘not reveal[ed] . . . to the public.’" (Authors Guild v. Google)
If you were using Photoshop in some transformative way that gives it new purpose (e.g: documenting the evolution of software UIs, rather than just making a photo with it as designed) then you may* be able to get away with downloading it from unofficial sources via a fair use defense.
*: (this is not legal advice)
https://www.copyright.gov/title17/92chap1.html#107
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
There's more detailed discussion here: https://copyright.columbia.edu/basics/fair-use.html
If I paint a picture inspired by Starry Night(Van Gogh) - does that inherently infringe on the original? I looked at that painting, learned the characteristics, looked at other similar paintings and painted my own. I basically trained my brain. (and I mean the copyright, not the individual physical painting)
And I mean cases where I am not intentionally trying to recreate the original, but doing a derivative(aka inspired) work.
Because it's already settled that recreating the original from memory will infringe on copyright.
That depends on the interpretation of "use", and it would be interesting to read what lawyers think. You learned the language largely from speech and copyrighted works. (All the stories, books, movies, etc. you ever read/heard) When you wrote this comment did you use all of them for that purpose? Is the case of AI different?
To be clear that's a rhetorical question - I don't expect anyone here to actually have a convincing enough argument either way.
Ideas/works/etc literally live rent-free in your head. That doesn't mean they should live rent-free in an AI's neural network.
Changing that should involve actually reducing or eliminating copyright, for everyone, not giving a special pass to AI.
Human brain most definitely is not exempt. If you read Lord of the Rings and then write down a new book, with the same characters and same story line - that's plain copying(lookup the etymology of the verb to copy). If you look at a painting and paint a very similar painting - that's still copying.
Human brains are the reason we have copyright. Your recital of passages from any copyrighted book would violate the copyright, if not for fair use doctrine. And it has nothing to do with whether you do it yourself, or have a TTS engine produce the sound.
I'm saying that AI does not and should not automatically get the exception that a human brain does.
Your first factor seems to not at all be like that which Stanford has in its guidelines[1], which they call the transformative factor:
In a 1994 case, the Supreme Court emphasized this first factor as being an important indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work.
LLMs mostly create something new, but sometimes seems to be able to regurgitate passages verbatim, so I can see arguments for and against, but to my untrained eyes doesn't seem as clear cut.
[1]: https://fairuse.stanford.edu/overview/fair-use/four-factors/
In the broadest sense, generative AI helps achieve the same goals that copyleft licences aim for. A future where software isn't locked away in proprietary blobs and users are empowered to create, combine and modify software that they use.
Copyleft uses IP law against itself to push people to share their work. Generative AI aims to assist in writing (or generating) code and make sharing less neccesary.
I argue that if you are a strong believer in the ultimate goals of copyleft licences you should also be supporting the legality of training on open source code.
If an artist approached a software developer, created a painting of them using their Mac, and said "There, I've done your job for you" you'd think they were an idiot.
This is the same from the other side. The inability to understand why that's a realistic analogy does not change the fact that it is.
What a curious type of theft where the author keeps their art and I get different art.
This is why it is important whether you consider that infringement occurs upon ingestion or output. If it only matters for outputs, then artists have a problem, since copyright doesn't protect styles at all, see for example the entire fashion industry.
There is a saving grace though: Artists can make a case that the association of their distinctive style with their name is at least potentially a violation of trademark or trade dress, especially if that association is being used to promote the outputs to the public. This is a fairly clear case of commercial substitution in the market for creating new works in that artist's style and creating confusion concerning the origin of the resulting work.
Note that the market for creating new works in a particular artist's distinctive and named style kind of goes away upon the artist's passing. What remains is the trademark issue of whether a particular work was actually created by the artist or not, which existing trademark law is well suited to policing, as long as the trademark is defended, even past the expiration of the copyright.
Meanwhile, trademark (and copyright) also apply to the subjects of works, like Nintendo's Mario or Disney's Mickey Mouse or Marvel's Iron Man. But we don't really want models to simply be forbidden from producing them as outputs, or they become useless as tools for the purpose of parody and satire, not to mention the ability to create non-commercial fan art. The potential liability for violating these trademarks by publishing works featuring those characters rests with the users rather than the tools, though, and again existing law is fairly well suited to policing the market. Similarly, celebrities' right of publicity probably shouldn't prevent models from learning what they look like or from making images that include their likeness when prompted with their name, but users better be prepared to justify publishing those results if sued.
You can also make the (technical) argument that if you just ask for an image of Wonder Woman, and you get an image that looks like Gal Gadot as Wonder Woman, that the model is overfitting. That's also the issue with the recent spate of coverage of Midjourney producing near-verbatim screenshots from movies.
It might be appropriate though to regulate commercial generative AI services to the extent of requiring them to warn users of all the potential copyright/trademark/etc. violations, if they ask for images of Taylor Swift as Elsa, or Princess Peach, or Wonder Woman, for example.
This is contrary to the goals of the Free Software movement - and also why Free Software people were the first to complain about all the copying going on. One of the things Generative AI is really good at is plagiarism - i.e. taking someone else's work and "rewriting it" in different words. If that's fair use, then copyleft is functionally useless.
It's important to keep in mind the difference between violating the letter of the law and opposing the business interests of the people who wrote the law. Copyleft and share-alike clauses have the intention of getting in the way of copyright as an institution, but it also relies on copyright to work, which is why the clauses have power even though they violate the spirit of copyright. Generative AI might violate the letter of the law, but it's very much in the spirit of what the law wants.
[0] Cory Doctorow: "Intellectual property is any law that allows you to dictate the conduct of your competitors"
Creative Commons has been fairly pro-AI -- they have been quite balanced, actually, but they do say that opt-in is not acceptable, it should be opt-out at most. EFF is fairly pro AI too -- at least, against using copyright to legislate against it.
You shouldn't discount progress in the open model ecosystem. You can sort of pirate ChatGPT by fine tuning on its responses, there's GPU sharing initiatives like Stable Horde, there's TabbyML which works very well nowadays, and Stable Diffusion is still the most advanced way of generating images. There's very much of an anti-IP spirit going on there, which is a good thing -- it's what copyleft is there for in sprit, isn't it?
The Software Freedom Conservancy has been complaining about GitHub Copilot since 2022[0]. They specifically cite Copilot's use of training data in ways that violate the copyleft and attribution requirements of various FOSS licenses. Hector Martin (the guy porting Linux to MacBooks) also agrees with this. It's also important to note that the first AI training lawsuit was specifically to enforce GPL copyleft[1].
The EFF's argument has come across to me less like "AI is cool and good" and more like "copyright doesn't do a good job of protecting artists against AI taking their jobs". Cory Doctorow's also taken a similar position, arguing that unions are better at protecting against AI than copyright is. e.g. WGA being able to get contractual provisions preventing workers from being replaced with AI.
This is a different vein of opposition to AI from what we saw the following year in 2023 with artists and writers, though. Even then, those artists and writers aren't suddenly massively pro-copyright[2] and more consider it a means to fatally wound AI companies[3]. In contrast, big businesses that own shittons of copyright have been oddly quiet about AI. Sure, you have Getty Images and The New York Times suing Stability and OpenAI, but where's, say, Disney or Nintendo's litigation? These models can draw shittons of unlicensed fanart[4], and nobody cares. Wizards and Wacom made big statements against AI art, but then immediately got caught using it anyway, because stock image sites are absolutely flooded with it.
My personal opinion is that generative AI creates enough issues that we can't group them down into neat "pro-copyright" vs. "anti-copyright" arguments. People who share their work for free online are complaining about it while people who expect you to pay money for their work are oddly ambivalent. AI is orthogonal to copyright.
I will give you that the open model community is doing cool shit with their stolen loot. However, that's still something large corporations can benefit from (e.g. Facebook and LLaMA).
[0] https://sfconservancy.org/GiveUpGitHub/
[1] https://en.wikipedia.org/wiki/GitHub_Copilot#Licensing_contr...
[2] Which, for the record, many of them break.
[3] Their actual argument against AI is based on moral grounds, not legal ones. I don't think any artist is going to accept licensing payments for training data, they just want the models deleted off the Internet, full stop.
[4] OpenAI tried to ban asking for fanart, but if you ask for something vaguely related (e.g. "red videogame plumber" or "70s sci-fi robot") you'll get fanart every time.
"many other things" has included, for example, Google Books scanning millions of in-copyright books, storing internally them in full, and making snippets available.
The basis for copyright itself is to "promote the progress of science and useful arts". For that reason a key consideration of fair use, which you've skipped entirely, is the transformative nature of the new work. As in Campbell v. Acuff-Rose Music: "The more transformative the new work, the less will be the significance of other factors", defined as "whether the new work merely 'supersede[s] the objects' of the original creation [...] or instead adds something new".
> "How much of the work will you use?" - All of it
For the substantiality factor, courts make the distinction between intermediate copying and what is ultimately made available to the public. As in Sega v. Accolade: "Accolade, a commercial competitor of Sega, engaged in wholesale copying of Sega's copyrighted code as a preliminary step in the development of a competing product" yet "where the ultimate (as opposed to direct) use is as limited as it was here, the factor is of very little weight". Or as in Authors Guild v. Google: “verbatim intermediate copying has consistently been upheld as fair use if the copy is ‘not reveal[ed] . . . to the public.’”
The factor also takes into account whether the copying was necessary for the purpose. As in Kelly v. Arriba Soft: "If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her"
While there are still cases of overfitting resulting in generated outputs overly similar to training data, I think it's more favorable to AI than simply "it trained on everything, so this factor is maximally against fair use".
> Directly competes with the original, killing or devaluing large parts of it
The factor is specifically the effect of the use upon the work - not the extent to which your work would be devalued even if it had not been trained on your work.
Substantiality of code does not apply to substantiality of style. What's being copied is look and feel, which is very much protected by copyright.
The copying clearly is necessary for the purpose. No copying, no model. The fact that the copying is then compressed after ingestion doesn't change the fact that it's necessary for the modelling process.
Last point - see first point.
IANAL, but if I was a lawyer I'd be referring back to look and feel cases. It's the essence of an artist's look and feel that's being duplicated and used for commercial gain without a license.
That's true whether it's one artist - which it can be, with added training - or thousands.
Essentially what MJ etc do is curate a library of looks and feels, and charge money for access.
It's a little more subtle than copying fixed objects, but the principle remains the same - original work is being copied and resold.
The question for transformative nature is whether it merely supersedes or instead adds something new. E.G: Google translate was trained on books/documents translated by human translators and may in part displace that need, but adds new value in on-demand translation of arbitrary text - which the static works it was trained on did not provide.
> Substantiality of code does not apply to substantiality of style.
I'm not certain what you're saying here.
> The copying clearly is necessary for the purpose. No copying, no model.
Which, for the substantiality factor, works in favor of the model developers.
> It's the essence of an artist's look and feel that's being duplicated and used for commercial gain without a license.
Copyright protects works fixed in a tangible medium, not ideas in someone's head. It would protect a work's look/appearance (which can be an issue for AI when overfitting causes outputs that are substantially similar to a protected work), but not style or "an artist's look and feel".
If that were the case, no one would be able to paint any cubist paintings. (Picasso estate would own the copyright, to this day)
It's not that clear cut, there are a lot of nuances.
That succeeds on a different part of the four-factor test, the degree to which it competes with / affects the market for the original.
Google Books is not automatically producing new books derived from their copies that compete with the original books.
It satisfied multiple parts of the four-factor test. It was found satisfy the first factor due to being "highly transformative", the second factor was considered not dispositive is isolation and favoring Google when combined with its transformative purpose, and it satisfied the third factor as the usage was "necessary to achieve that purpose" - with the court making the distinction between what was copied (lots) and what is revealed to the public (limited snippets).
As you had all factors as "maximally against" fair use, do you believe that AI is significantly less transformative than Google Books? I'd say even in cases where the output is the same format as the content it was trained on, like Google Translate, it's still generally highly transformative.
> the degree to which it competes with
Specifically, to be pedantic, it's the effect of the use/copying of the original copyrighted work.
Genuinely curious: for anyone who thinks AI obviously violates copyright, how do you resolve this? E.g. do you think the violation happens during training or inference? And is it the trained model, or the model output, that you think should be considered a derived work?
Just like a translation of a book is a derived works of the original. Or a binary compiled output is a derived works of some source code.
> In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of ... the underlying work.
A trained model fails that on two counts, doesn't it? Both the "includes" part, and the fact that a model is itself not an expressive work of authorship.
There's nothing creative about the act of a compiler, it is automatic, just like the training run of an LLM.
And no part of the original source code is in the binary output.
And yet, binaries are a derived work from the source code that went into them.
So something is up! I am not a lawyer though.
It's not about whether the binary includes the raw text of the source, but whether it copies the expressive content. Anything expressive (i.e. copyrightable) in a compiled binary must have come from the sourcecode, so that's what makes it a derived work.
But the same isn't true of LLMs, which are more like "data about their inputs", than "a transformed version of their inputs".
Translation of a book is non-transformative and retains the original author's artistic expression.
As a counter example - if you write an essay about Picasso's Guernica painting, it is derivative according to our colloquial use of the term, but legally it's an original work.
If the US had tighter regulations, China or someone else will take over the market. If AI is genuinely transformative for productivity, then the US would just fall behind, sooner or later.
Like, we see this line everywhere now, and it simply doesnt make sense. At some point you just have to believe something, be principled. Treating the entire world as this zero sum deadlock of "progress" does nothing but prevent one from actually being critical about anything.
This would-be Oppenheimer cosplay is growing really old in these discussions.
And likely proprietary ML as well, hopefully.
(To be clear, I think AI is an absolutely incredible innovation, capable of both good and harm; I also think it's not unreasonable to expect it to play a safer, slower strategy than the Uber "break the rules to grow fast until they catch up to you" playbook.)
I'm all for eliminating copyright. Until that happens, I'm utterly opposed to AI getting a special pass to ignore it while everyone else cannot.
Fair use was intended for things like reviews, commentary, education, remixing, non-commercial use, and many other things; that doesn't make it appropriate for "slurp in the entire Internet and make billions remixing all of it at once". The commercial value of AI should utterly break the four-factor test.
Here's the four-factor test, as applied to AI:
"What is the character of the use?" - Commercial
"What is the nature of the work to be used?" - Anything and everything
"How much of the work will you use?" - All of it
"If this kind of use were widespread, what effect would it have on the market for the original or for permissions?" - Directly competes with the original, killing or devaluing large parts of it
Literally every part of the four-factor test is maximally against this being fair use. (Open Source AI fails three of four factors, and then many users of the resulting AI fail the first factor as well.)
> If they lose, they’ll survive.
That seems like an open question. If they lose these court cases, setting a precedent, then there will be ten thousand more on the heels of those, and it seems questionable whether they'd survive those.
> To be clear, I don’t like the idea of companies profiting off of people’s work. I just like open source dying even less.
You're positioning these as opposed because you're focused on the case of Open Source AI. There are a massive number of Open Source projects whose code is being trained on, producing AIs that launder the copyrights of those projects and ignore their licenses. I don't want Open Source projects serving as the training data for AIs that ignore their license.