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Comment by tobyjsullivan | Hacker News Reader

> If they were humans, a court could deem the outputs copyright infringement

I'm not sure I understand how this is self-evident. The closest equivalent I can see would be a human who looks at many pieces of art to understand:

- What is art and what is just scribbles or splatter?

- What is good and what isn't?

- What different styles are possible?

Then the human goes and creates their own piece.

It turns out, the legal solution is to evaluate each piece individually rather than the process. And, within that, the court has settled on "if it looks like a duck and it quacks like a duck..." which is where the subconscious copying presumably comes in.

I don't know where courts will go. The new challenge is AI can generate "potentially infringing" work at a much higher rate than humans, but that's really about it. I'd be surprised if it gets treated materially different than human-created works.

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> The new challenge is AI can generate "potentially infringing" work at a much higher rate than humans, but that's really about it

The other challenges are: (i) the model isn't a human that can defend themself by explaining their creative process, it's a literal mathematical transformation of the inputs including the copyrighted work. (And I'm not sure "actually the human brain is just computation" defences offered by lawyers are ever likely to prevail in court, because if they do that opens much bigger cans of worms in virtually every legal field...) (ii) the representatives of OpenAI Inc who do have to explain themselves are going to have to talk about their approach to licenses for use of the material (which in this case appears to have been to disregard them altogether). That could be a serious issue for them even if the court agrees with the general principle that diffusion models or GANs are not plagiarism.

And possibly also (iii) the AI has ridiculous failure modes like implementing the Getty watermark which makes the model look far more closely derived from its source data than it actually is

It's worth pointing out that the problem, in this scenario, is for the creator (ie, the human running the algorithm). They will need to determine whether a piece might violate copyright before using it or selling it. That seems like a very hard problem, and could be the justification for more [new] blanket rules on the AI process.

Proving artwork you created is free from all copyright issues is similarly impossible, but in practice isn’t an issue. So, I don’t see any AI specific justification being relevant.

How common is it for an artist to accidentally generate a work that resembles an existing work?

I can't speak for digital art because I'm not an artist but I can say it's extremely common for original music to (often accidentally/subconsciously) include melodies or pieces of melodies from other music.

That's more like two paintings sharing the same color scheme or using the same brand+color of paint but still being unique. The performance of those melodies and structures is what makes a song unique and creative.

Adam Neely the YouTuber has produced several videos about recent legal cases where musicians sue because of some superficial similarities. In most cases the higher courts in the US recognize that copying is part of the normal creative process and is not infringement unless it is a blatant rip-off.

This is exactly my thinking. If the court finds somebody guilty of infringing on a human-made piece of digital art the response is to punish the human, not to ban or impose limits on photoshop.

At risk of stretching the analogy, you don’t charge the gun with murder…

Except, of course, the human has very little control over what the AI outputs in TXT2TXT scenarios, at least in terms of whether the output would match the definition of copyright infringement of someone else's work. IMG2TXT is kinda different -- I think you could make a much stronger case for derivative work there. So you have a tool that can randomly create massive liability for you, and you can't know if its done so or not until someone sues you.

The humans are the cause of it happening in the first place. Maybe the gun analogy is not such a stretch: if you pull the trigger, you own the consequences.

Reasonable fair use principles could distinguish personal and R&D use from commercial use.

I think it's more common with music. Some musician goes to a foreign country and heard an obscure local song. 20 years later the musician has forgotten completely about the song and the trip. One day a catchy melody appears in the head of the musician out of the blue, and the musician complete the song and add a lyric. The song get famous, and later reach the foreign country, and everyone acuse the musician of plagiarism.

Reminds me of a recent scandal involving Adele, where she is accused of plagiarizing a Brazilian composer: https://english.elpais.com/usa/2021-10-19/toninho-geraes-vs-...

>I'm not sure I understand how this is self-evident. The closest equivalent I can see would be a human who looks at many pieces of art

...and then gets told "Hey, go and paint me a copy of that Andy Warhol piece from memory".

The model might not violate the copyright, but its output is derivative work if the copyrighted works are included in the training set.

That would be over-fitting which is certainly a failure mode of ML. But it's still a failure mode, not an inherent property.

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