Google keeps coming up with new ways to statistically infer training set data from models. So it's not entirely lossless. At the very least, models that have been trained on a particular work are unusually good at compressing[0] those works, relative to other valid text.

In terms of fair use, one of the larger factors is the 'market substitution' factor, which basically means "does this use compete with otherwise licensed uses that people would ordinarily pay for?" AI absolutely does compete with human artists for the same market. In fact, it's winning handily[1], because you don't have to pay human artists. AI art models absolutely shouldn't be trained on anything with copyright on it.

The other factors don't fare much better. Nature of the original work will differ based on the plaintiff, but the purpose and character of the AI's use of that work is very much commercial. And the amount and substantiality of the use is complete and total. I don't see AI being fair use - at least, not in every one of the many, many training lawsuits currently ongoing against OpenAI and Stability.

[0] Starting with any body of text, an LLM, and an empty context window, compute the next-token probabilities and take the highest one. If it matches the source text, output a 1 bit. If it doesn't, output 0 followed by the ID of the correct next token. Add the correct token to the context window and repeat until the text has been fully compressed. This produces a list of perplexities (wrong words) for the given text which can be used to guide the LLM to output the original work.

[1] Hey, remember when both WotC (biggest art commissioner on the planet) and Wacom (hardware vendor that sells art tools and payment terminals[2]) both got caught using AI art after making very loud and public pledges to not do that? They both wound up buying stock photography on marketplaces that are absolutely flooded with AI trash.

[2] All the credit card readers in Japan are built by Wacom, which is really funny as an artist

Summary books for example are legal, so there is some threshold of compression where things are fine.

are you referring to things like CliffNotes ?

I’m referring to the “Summary of <some other book>” booklets you can find on Amazon. Also services like Blinkist.

Huh. Never heard of those. The internet sure has a lot of dark little nooks and crannies.

On top of that, add patent and trademark law which also ban things A.I.'s might generate from training data. In the case of patents, they can't reproduce the invention even if it's an independent creation. From there, the damages go up if they did it on purpose. That some are trained on patent filings and research papers about patented inventions is just asking to be in a patent suit eventually.

And that's legitimate inventions I'm talking about. Just wait until the patent trolls figure out how to get the A.I.'s to divulge patent violations to sue the A.I. suppliers.