Copyright liability for generative AI pivots on fair use doctrine

https://news.bloomberglaw.com/us-law-week/copyright-liability-for-generative-ai-pivots-on-fair-use-doctrine

by hhs • 3 years ago

28 19 3 years ago

news.bloomberglaw.com

tivert3• 3 years ago

Importantly, the court focused on the “highly transformative purpose” of Google’s use of this material—that Google was transforming many diverse copyright-protected books into a new, useful search mechanism that didn’t compete with the underlying works.

It's pretty obvious that generative AI should fail that test; because the whole point is to compete with the underlying works, and the technology is marketed and understood that way. It doesn't have the same defense as Google Books, because that is so crippled with copyrighted works that it cannot be used as a substitute for the books it's searching.

I mean a lot of people are hyping ChatGPT as a replacement for Wikipedia (which is was obviously trained with), and image generators as replacements for stock imagery (and there are documented cases of those reproducing recognizable watermarks: https://photutorial.com/stable-diffusion-watermarks-investig...).

Also generative AI systems aren't people, so I think it's totally fair to not grant their operators rights by analogy to something a human would do.

nbened• 3 years ago

I think the reproduction of recognized watermarks is hilarious.

I could see some kind of trend emerging as a competition to replace the watermarks as closely as possible to the real thing without it actually being the real thing just for the joke, an argued original work. Kinda like Nathan For You's Dumb Starbucks becoming some viral hit just by changing one word, could see some bored anti-establishment dudes following a similar path.

brigadier1323• 3 years ago

because the whole point is to compete with the underlying works

I don't see how this is the case and if it hinged on that, how is it different from a book citing another book. That book competes with the book it's citing.

tivert3• 3 years ago

> because the whole point is to compete with the underlying works
I don't see how this is the case

If it wasn't the case, what's the point of these models getting billions of dollars thrown at them? What's the actual sales pitch for using them in the economy?

and if it hinged on that, how is it different from a book citing another book. That book competes with the book it's citing.

One of the obvious differences is these models don't cite their sources. Even if you can get them to generate something that looks like a cite, it's not a real cite of the works the model actually used.

belorn• 3 years ago

I do not see how a book citing an other book is commercial competing. Citations in most cases enhances the original book in same way that research papers cite each other, which then is used as a measurement of the value of the original paper. Some citations that criticize the original book could be used in direct competition, but that follows a very distinct fair use exception that critique and reviews enjoys.

Could you provide an example of a book citing an other book which as a result competed with the book it cited that would not fall under critique or review?

Ajedi32• 3 years ago

the whole point is to compete with the underlying works

AI doesn't compete just compete with "the underlying works" though; it competes with all works, even works that weren't in its training set. So the type of "competition" you're describing is incidental, and not connected to the AI's use of any particular copyrighted work it was trained on.

I don't know whether that makes a difference under existing law, but I'd argue that it should.

I'd also argue copyright/fair use shouldn't even come into play, since AI models do not (typically) contain copies of the works they're trained on in the first place (except in cases of over fitting), but that's a completely separate issue.

sheepshear• 3 years ago

This is a weird argument. You can violate someone's copyright as long as you compete with other people too?

Aerroon• 3 years ago

But the AI model itself does not compete with those works though. You have to use the AI model with additional input and substantial compute resources to potentially generate a work that competes.

You don't read wizardlm.ggml instead of Hobbit.txt.

flangola72• 3 years ago

Existing media paradigms will not be around for very long, for better or worse. Intellectual property exists because high quality film, music, books, and more, require labor and resources to produce. Within a few years quality media of any type will be so plentiful and abundant it be as cheap as dirt.

No one today hires elite guards to protect a 50kg bag of salt... but at one time we did.

thatoneguy• 3 years ago

This is about as believable as a cryptobro saying "fiat currency will not be around for very long, for better or worse".

You can't produce genuinely new things with a human point of view based on lived experience with generative AI and there's no reason to expect that will be happen in the near future. Humans care about human stories and they care most about novel stories, not chewed-over already-told stories.

That said, with any luck we'll just get back to typewriters and film photos and we can shut the internet down for everything but email and Wikipedia. To do otherwise would leave thoughts, hopes and dreams open for consumption by software expressly designed to use them against their creators.

Legend2440• 3 years ago

AI can produce genuinely new things right now. Go look at the brand new biological proteins being made by rfDiffusion.

You have no clue what is and isn't possible for AI to produce, and neither does anyone else. We haven't even hit the limit of current algorithms yet - Dall-E 3's creativity is mindblowing.

flangola72• 3 years ago

Do you have any evidence to back up these outlandish claims?

artninja1988• 3 years ago

I agree with this. If there is close to zero cost for creativity and works of art then there does not need to be an incentive through copyright which gives a was designed to give a timed monopoly on works. I for one am looking forward to those times when we are no longer shackled by intelectual "property" law.

amanaplanacanal• 3 years ago

This whole analysis seems weak. Fair use is a defense once it has been decided that there has been infringement, and it’s not obvious that there is infringement.

Copyright liability for generative AI pivots on fair use doctrine

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