> The RIAA lawyers never had to demonstrate that copying a DVD cratered the sales of their clients. They just got high penalties for infringers almost by default.

The argument for 'fair use' in DVD copying/sharing is much weaker since the thing being shared in that case is a verbatim, digital copy of the work. 'Format shifting' is a tenuous argument, and it's pretty easily limited to making (and not distributing) personal copies of media.

For AI training, a central argument is that training is transformative. An LLM isn't intended to produce verbatim copies of trained-upon works, and the problem of hallucination means an LLM would be unreliable at doing so even if instructed to. That transformation could support the idea of fair use, even though copies of the data are made (internally) during the training process and the model's weights are in some sense a work 'derived' from the training data.

If you analogize to human leaning, then there's clearly no copyright infringement in a human learning from someone's work and creating their own output, even if it "copies" an artist's style or draws inspiration from someone's plot-line. However, it feels unseemly for a computer program to do this kind of thing at scale, and the commercial impact can be significantly greater.

> there's clearly no copyright infringement in a human learning from someone's work and creating their own output, even if it "copies" an artist's style or draws inspiration from someone's plot-line.

What do you mean here by "clearly?" This is not at all clear, and court cases have been decided in the opposite direction.

This case: https://www.reuters.com/article/lifestyle/marvin-gaye-family...

is as far from what you say is "clearly" true as could possibly be. You're handwaving away the parts of the question that are difficult.

But that case involves publishing of content. If you want to compare them, it seems like you'd argue that the content of Pharrell Williams' head is somehow copyright infringement. I've yet to see anyone credible say that an AI model outputting exact content and then someone publishing that should be allowed. If you manage to make an AI model output copyrighted content, you can't then claim it's not copyrighted. If you sit on one side of a table and read a book out loud and I write it down (with minor transcription errors), that content is almost certainly still copyrighted content and I could not distribute it legally.

In the case you linked, it wasn't infringement for Robin Thicke to be impressed by Marvin Gaye. It was infringement to create a substantial copy.

Applying this same legal doctrine to LLMs, it's totally fine for them to train on copyrighted works. A problem would only arise if they produced substantial copies of those works.

It may be difficult to quantify the harm done in that case. Robin Thicke sold millions of copies of blurred lines. Each LLM output is generally consumed by a single person. There could be millions of examples of blatant copyright infringement by LLMs that will never come to light in court. There also could be vanishingly few. We may need new regulations to police it.

. If you analogize to human leaning

You can't make valid legal analogies to human learning when dealing with copyright law, because human brains are not a fixed media under copyright law, thus impressions in human brains are not copies of any kind under copyright law, thus "well, when you make an impression in the human brain, its not a copyright violation" is never a good legal analogy for when you make something that is in a form which can be a copy under copyright law.

> For AI training, a central argument is that training is transformative

This doesn't actually matter though does it? They still had access to a copy of the data in the first place to train the AI on

Since they likely did not pay a license to have access to the books they trained the AI on, then they violated copyright

The same way it would be violating copyright for a university student to pirate a textbook and learn from it

It matters because that is what the plaintiffs are arguing - that the use of copyright material for AI training is not fair use. They are not solely arguing that meta engaged in copyright infringement through piracy.

One could argue a student going to a library and reading a book is analogous and legal.

Information contained in subjective mental experience is not a medium which can qualify as a copy (infringing or otherwise) in copyright law, whereas data recorded in digital media such as computer memory is, so they are not similar circumstances with regard to copyright law, however analogous you might feel they are from some other perspective.

What if there was a camera watching the student read in the library, such that the words could be seen?

That doesn't change anything about the student reading.

The recording made by the camera would be a whole different issue.

> whereas data recorded in digital media such as computer memory is

Exactly.

Plus, Thomson Reuters recently won a case regarding using copyrighted material for AI training:

https://www.wired.com/story/thomson-reuters-ai-copyright-law...

> Thomson Reuters has won the first major AI copyright case in the United States. In 2020, the media and technology conglomerate filed an unprecedented AI copyright lawsuit against the legal AI startup Ross Intelligence. In the complaint, Thomson Reuters claimed the AI firm reproduced materials from its legal research firm Westlaw. Today, a judge ruled in Thomson Reuters’ favor, finding that the company’s copyright was indeed infringed by Ross Intelligence’s actions.

Though a cynical way to read this would be that the larger corporation won against the smaller, so the actual precedent here is Meta winning.

But as others have noted in these comments, even that has a silver lining: should Meta win, then everyone can pirate books to read, right? /s

If I remember right, that particular case was Ross Intelligence almost copying a database of Westlaw's summaries completely and with the intent to compete directly too, with their only real addition being adding AI to the search capabilities, making it much more nuanced of a decision than just ruling against the use of AI.

Thank you for confirming what I meant. The crux is learning is learning.

Pirating the book is copyright infringement ... reading in a library is not.

Training of a neural network on copyrighted work is the algorithmic equivalent of a "subjective mental experience".

> The same way it would be violating copyright for a university student to pirate a textbook and learn from it

Presumably, there would be no requirement for the student to learn from it - making the unauthorised copy would be itself an infringement.

Meta needs these books.

They seek to convert them into more products. The needs of the copyright holders , who are relatively small businesses and individuals are outweighed by the needs of Meta.

Sarah wanting to watch a movie or listen to music... Too bad she doesn't have an elite team of lawyers to justify whatever she wants.

In practice Meta has the money to stretch this out forever and at most pay inconsequential settlements.

YouTube largely did the same thing, knowingly violate copyright law, stack the deck with lawyers and fix it later.

Content id is actually a pretty good solution tho. Copyright holders do get paid ad revenue, and when u post a vid of your daughter's wedding with Kenny loggins' copyrighted music playing, it doesn't get removed. Sony or Universal or whomever is just gonna get the monetization. Seems like a good deal for both sides.

Edit: I didn't make it clear... I don't think meta is going to be paying or offering a revenue stream like YouTube ended up creating. I also have no idea if YT actually brings in money for those groups and if the copyright holders essentially took what they could get or were happy with the deal so who knows.

It's only when other parts of the system get abused there's problems but that's a sep issue...

Interesting figure that guy.

Here's this: >Boies also was on the Theranos board of directors,[2][74] raising questions about conflicts of interest.[75] Boies agreed to be paid for his firm's work in Theranos stock, which he expected to grow dramatically in value.[75][3]

https://en.wikipedia.org/wiki/David_Boies

That was one of the decisions of all time.

He was also the primary villain of John Carreyrou's account of Theranos' rise and fall -- Bad Blood -- as his firm attempted to bully and hound whistleblowers, and intimidate their families with baseless legal threats. Not a very nice or ethical guy.

>also the primary villain Hopefully second to Holmes,eh?

Holmes seemed shady, really careless, and criminally flippant re: shipping medical technologies that never worked. But Boies was an out-and-out scoundrel, a real old-fashioned criminal enforcer type.

I had (and still have, to some extent,) mixed feelings about Holmes. She's like an avatar of SV's "fake it 'til you make it" aspect, taken way too far, to an uncomfortable extreme.

Boies, though? He represents the absolute perversion of the legal profession and the Common Law. In him you see how it is used by the powerful to bludgeon and coerce the weak. The Law as naked and unambiguous Lawful Evil. He's the worse villain of the two. And, aptly, this Mephistopheles is the one still walking free.

He was a secondary villain in Ronan Farrow's Catch and Kill book, as Harvey Weinstein's attorney. He employed similar tactics to protect Weinstein as he did for Theranos.

He was fired by the New York Times after all this came out, because he hired private investigators to go after the NYT reporters investigating Weinstein (Jodi Kantor & Megan Twohey at the NYT broke the story just before Farrow's reporting was published), while also representing the Times.

Copyright was invented (in its modern form) by corporations. It will be uninvented if need be for corporations.

I'm curious what you mean by "in it's modern form". You seem to suggest there was a previous form that was not invented by corporations, but I don't believe that is the case.

Copyright was first established by governments and the Church prior to the invention of corporations.

> The concept of copyright first developed in England. In reaction to the printing of "scandalous books and pamphlets", the English Parliament passed the Licensing of the Press Act 1662, which required all intended publications to be registered with the government-approved Stationers' Company, giving the Stationers the right to regulate what material could be printed.

Source: https://en.wikipedia.org/wiki/Copyright

Okay, not a corporation, but a company.

> Copyright was first established by governments and the Church prior to the invention of corporations.

No, it wasn't. The first copyright law is generally held to be the Statute of Anne (1710) in Britain (the Licensing of the Press Act of 1662 which preceded it was not a "copyright law" in the sense that it did not provide for ownership of a right to publish/print particular works, but provided, as the name suggested, for licensing of printing presses, and revocation of said licenses -- it was more of a general censorship law); and even if you limit the scope to Britain (well, in either case, England before the Union with Scotland) corporations go back further (depending on whether you mean corporations as "entities which are not natural persons with legal personality"—the City of London Corporation's establishment is literally lost to history, but known to predate the Norman Conquest—or "joint stock companies"—the Company of Merchant Adventurers to New Lands in 1551 would be the first.)

There were two, major differences in prior forms of copyright:

1. It protected works to reward authors during their lifetime. This was changed to lasting a long time after the author was dead. Then, also for corporations that were only persons on paper and theoretically immortal. This shift let companies squeeze money out of monopolized ideas for over a century rather than supporting artists and their creations. Instead of supporting the small fish, copyright law can reinforce the dominance of the sharks and whales.

2. Copyright was shorter in the U.S. at 28 years with possible renewal. That would balance two goals: give author time to make money off the work; let society use the work in a timeframe where it would still matter to them. Now, we can't have most works until long after they're useful in the market. We might not even speak the language they spoke, like older vs current English.

Personally, I'd love to see a limit of 5-20 years on copyrighted works. If authors want more money, they can make more stuff. Allowing remixes of culturally and technologically relevant content will create huge, thriving ecosystems. I think my concept is also proven out by the open source ecosystem.

A limit would also be great for legal AI. We could train them on all human content up to 5-20 years ago. Tons of jobs would be created digitizing and optimizing that content. Then, companies would pay to create or license modern content that updated those foundation models. Under current law, it would be impossible for smaller companies to build highly-competitive A.I.'s due to licensing cost and arbitrary restrictions.

> It protected works to reward authors during their lifetime.

This was the pitch by the (printing) companies that established copyright to gain a legal monopoly on copying.

> Instead of supporting the small fish, copyright law can reinforce the dominance of the sharks and whales.

This was always the case. It's just worse now.

Personally I'd love to see sane copyright laws. That is, abolishing copyright. Copyright only helps people in power stay in power. Oh, does Disney argue that you used a character of theirs in your story? Does it even matter if you did? You think you can take on Disney's lawyers? It doesn't matter if copyright is 5 years or 500. You're going to lose.

Art, and things erroneously treated like art under copyright like software, would be so much better if people could do it without fear of being a victim of copyright. Imagine if anyone could add their own flare to any story ever. Incredible.

The golden rule strikes again!

If I remember correctly the legal precedent from that era, and if I'm summarizing correctly: Those who served or uploaded were considered to be infringing, since they were "making copies" by serving or uploading, whereas those who downloaded infringing copies were not themselves infringers. Meta in this case is at least described by the latter, and the question is whether LLM generation constitutes the former.

That's because that was statutory infringement where marketplace impact things come up more in fair use ("drummer reacts to hearing most famous drummer for the first time"). They look at whether it acts as a substitute for the original, but there are different rules depending on the type of fair use, how transformative it is, and more.

ironically, he was the head lawyer on the legal team for napster (obviously a huge loss) but it accords well with your theory

Copyright infringement is not stealing[0]

[0] https://en.m.wikipedia.org/wiki/Dowling_v._United_States_(19...

No, but the law treats it as bad as stealing when an individual copyright-infringes from a corporation, so why shouldn't it be as bad as stealing when a corporation copyright-infringes from an individual?

Of course, even this isn't enough, since corporations regularly steal (actually) from individuals, with near impunity.

> Unrelatedly, has Boies ever won a high profile lawsuit? I remember him from the Bush/Gore recount issue, where he represented the Democrats.

He teamed up with opposing counsel from Bush v. Gore, Ted Olson, and the pair of them represented plaintiffs in Hollingsworth v. Perry, the SCOTUS case which overturned Prop 8, California's gay marriage ban.

> The RIAA lawyers never had to demonstrate that copying a DVD cratered the sales of their clients.

Did any of the defendants raise a fair use defense based on a transformative use that they were making of the downloaded copies? If not, you are in the domain of "unlike legal situations lead to unlike decisions" which is not exactly surprising.

IIRC format shifting was argued to be part of fair use. I would think that taking an audio CD and ripping it into MP3 would be transformative, but I don't think the law would agree.

when kids during the napster era were downloading music, the mega-corporations yelled that their bottom-lines to shareholders were being destroyed.

now, when the mega-corporations do it, it is 'just the cost of doing business'.

in both cases, the mega-corporations win because...they have the most money. law, and certainly justice, is not for the poor. at least not in america.