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Opinion: The Copyright Office is making a mistake on AI-generated art
(arstechnica.com)
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this post was submitted on 22 Sep 2023
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Technology
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The whole thing hinges on if this is fair use or not, so, yes, it does.
Yes, it absolutely hinges on fair use. That's why the very first page of the lawsuit alleges:
"Defendants’ LLMs endanger fiction writers’ ability to make a living, in that the LLMs allow anyone to generate—automatically and freely (or very cheaply)—texts that they would otherwise pay writers to create"
If the court agrees with that claim, it will basically kill the fair use defense.
First of all, fair use is not simple or as clear-cut a concept that can be applied uniformly to all cases than you make it out to be. It's flexible and context-dependent on careful analysis of four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market. No one factor is more important than the others, and it is possible to have a fair use defense even if you do not meet all the criteria of fair use.
Generative models create new and original works based on their weights, such as poems, stories, code, essays, songs, images, video, celebrity parodies, and more. These works may have their own artistic merit and value, and may be considered transformative uses that add new expression or meaning to the original works. Allowing people to generate text that they would otherwise pay writers to create that isn't making the original redundant nor isn't reproducing the original is likely fair use. Stopping people from cheaply producing non-infringing text doesn't seem like something the courts would agree should be stopped just 'cause someone wants to get paid instead.
I think you're being too narrow and rigid with your interpretation of fair use, and I don't think you understand the doctrine that well.
Yes, and I named three of those factors:
And while you don't need to meet all the criteria, the odds are pretty long when you fail three of the four (commercial nature, copying complete work rather than a portion, and negative effect on the market for the original).
Think of it this way: if it were legal to download books in order to train an AI, then it would also be legal to download books in order to train a human student. After all, why would a human have fewer rights than an AI?
Do you really think courts are going to decide that it's ok to download books from The Pirate Bay or Z-Library, provided they are being read by the next generation of writers?
I haven't seen anyone that has been able to reproduce complete works from an LLM. Open AI also actively stops people from even trying to reproduce anything that resembles copyrighted materials. Signaling their commercial purpose isn't to substitute for the plaintiff's works. Filing suit doesn't make their claims true, you should hold off on hasty judgements.
Again, it's not a question of reproducing books in an LLM. The allegation is that the openAI developers downloaded books illegally to train their AI.
You need to pay for your copy of a book. That's true if you are a student teaching yourself to write, and it's also true if you are an AI developer training an AI to write. In the latter case, you might also need to pay for a special license.
Is it possible that the openAI developers can bring the receipts showing they paid for each and every book and/or license they needed to train their AI? Sure, it's possible. If so, the lawyers who brought the suit would look pretty silly for not even bother to check.
But openAI used a whole lot of books, which cost a whole lot of money. So I wouldn't hold my breath.
To quote again:
Yeah, I think they've got a chance. You also definitely don't need to pay to use books. You can just receive it for free from someone. That's why college course books make all those revisions and bundle in software to stop people from sharing.
Simple question:
If you are college student, learning to write professionally, is it fair use to download copyrighted books from Z-Library in order to become a better writer? If you are a musician, is it fair use to download mp3s from The Pirate Bay in order to learn about musical styles? How about film students, can they torrent Disney movies as part of their education?
I'm certain that every court in the US would rule that this is not fair use. It's not fair use even if pirated content ultimately teaches a student how to create original, groundbreaking works of writing, music, and film.
Simply being a student does not give someone free pass to pirate content. The same is true of training an AI, and there are already reports that pirated material is in the openAI training set.
If openAI could claim fair use, then almost by definition The Pirate Bay could claim fair use too.
If the students are using the works for purposes such as analyzing, critiquing, or illustrating a point, and not merely reproducing them, they have a strong case for fair use. That's all these models are, original analysis of their training data in comparison with each other. This use is more likely to be considered transformative, meaning that they add something new or different to the original work, rather than merely copying it. If you need it said another way, here's a link to a video about this sort of thing.
So you believe that if you download an mp3 and claim you are "analyzing" it, then you can't be liable for IP infringement?
Wow, I wonder why the Napster defendants never thought of that. They could have saved tens of thousands of dollars.
They were helping people to reproduce and distribute copyrighted works. There's a world of difference here.