OpenAI will crush Sarah Silverman
blog.jovono.com
blog.jovono.com
The closest precedent is probably the 9th Circuit's ruling in MAI Systems[1]. Given the Supreme Court's recent ruling against the estate of Andy Warhol, I'd bet on them endorsing the key holdings of that precedent in a hypothetical Silverman v. OpenAI.
[1] https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Comp....
Congress later carved out this particular case as fair use. There is no such carve out for copying novels to train LLMs.
That said, I'm not sure the caselaw is that clear. For example, in Authors Guild v Google, the courts found Google's use of copyrighted works to build a search index as fair use:
https://en.m.wikipedia.org/wiki/Authors_Guild,_Inc._v._Googl....
In particular, of the four factor test (https://en.m.wikipedia.org/wiki/Fair_use#U.S._fair_use_facto...), in Authors Guild the judge found that the authors didn't experience economic damage from the copying.
In the case of LLMs, can the affected artists argue for economic damages? That's not obvious to me.
As for economic damages, that seems easy: One obvious use of the model is to create derivative works that could economically compete with the original creators’ works.
Simpler examples make this clear: I love Disney animated films. I love them so much I build a model & train it on the complete corpus of Disney animated films. My model is a success, and can produce new films which more or less echo the style, characters, themes of the Disney films.
This is not what Google was doing. The creative work was the well-organized, efficient index, not new books or a program to write them.
I wrote this post in a way that was meant to be brief, clear, and honestly a little snarky. If I was writing a brief, I'd have gone through a more detailed analysis, but I think fails for a number of reasons, including fair use for the copying, transformative use for the AI system, and frankly a lack of damages because the LLM isn't distributing copies of her work (which is one reason they are trying to establish Silverman as a lead plaintiff in a class action suit). I glossed over a lot of this discussion to keep the post brief. But of course, this post is not legal advice, it's just a quick (and hopefully fun!) blog. I am much more knowledgeable about patent law than copyright law, by the way, and acknowledge any flaws in my post.
Most importantly, I wanted to highlight what I view as a real difference between what copyright holders want from copyright and the policy goals of copyright. What I believe they want is a patent, but what they have is a copyright. They are intended to achieve very different policy goals and as such have different structures.
a) Training the model involved making a non-transient copy of Silverman’s work (e.g. in an encoded form into the GPU).
b) That copy was not a fair use. The purpose of the copy was to train an ML model to generate similar content. OpenAI offers commercial access to the resulting generation mechanism, and indisputably some of what people are paying for is content generation to compete with creators like Silverman.
If OpenAI were only training models for research purposes they’d have a much stronger case for fair use.
From my previous comment:
Given the potential economic impact on the original artist, the mechanical nature of the transformation and the fact that extracting the style of an artist's work could be deemed substantive, fair use is not in the least bit a slam dunk.
One could argue that use of this sort of AI robs the original artist of the fruits of their labour, neutering copyright protections, and produces works that substitute for the originals, without adding any creative input other than commanding the output from a machine. Given the intent of copyright law, judges would likely be receptive to this argument.
Yes you can create a transformative work but if you can get it to make an exact copy and can't get it to stop doing that I would say there's a problem.
if your a service provider and I send you a DCMA request how do you handle it?
If the companies had bought all of the ebooks, then they might be in the clear.
Or is it "you did a bad thing in the process of making another thing but we can only punish the initial act"
Obviously these are attempts at recreating the Mona Lisa, but none of them are the Mona Lisa. Whether they fall within fair use is an entirely separate question.
(Btw I'm not saying that's the case, but that's essentially the argument)
I think they do. And whether or not this particular case is won by Silverman is ultimately irrelevant. Society will have its day in court, and eventually this madness of so-called "AI" stealing our labor will be stopped one way or another.
For example, if I were a graphic artist, you could commission me to create art "in the style of $ARTIST" and I would be able to legally do so as long as I wasn't copying the source art exactly. You can prompt Midjourney to do something similar, and it will happily comply.
There are obvious ethical questions here, but I'm not sure that would result in a court finding for the copyright holder. We could choose to create new rights which prevent AI from ingesting copyrighted material, but it seems like it would need to be a new law, rather than rights conveyed under existing law.
Sure, and you'll be sued for copyright infringement if it's too similar. If you've created something new that transforms the original sufficiently and doesn't impinge on the original artists ability to derive benefits from their work, as well as several other restrictions, then you're ok.
A mechanical transformation is an entirely different ballgame. Firstly you'd have to convince a judge that the machine was being creative. Given that the code can't do anything without being fed other people's works, you're then arguing that you're not appropriating other people's work just because you're doing it at scale. Machines using other's creativity (at scale) doesn't mean it has its own creativity. Machines are not human and human creativity isn't a fully understood phenomenon. It's a legal minefield.
There's definitely an argument that we should have laws which govern machines, but we don't today. That's why I said it would likely need to be a new law that specifically does so.
Most times somebody makes this case it's explicitly framed as "AI owned by big corporations". I can see why this makes the argument more compelling but does the argument stand without this?
i.e. if we are talking about an open model with no corporate control then do you feel your point is as strong as before? These models indisputably exist. I think there is still a reasonable case to be made but I think it's slightly dishonest to make it in this way when we know that things have moved on.
The overly aggressive tone of the article is weird from the get go, and it states these (legal) opinions as fact, and never backs them up. From what knowledge or experience does the author draws this from, or is it just the opinion of Generic VC Investor who has investments in affected companies?
The author does get one thing right - copyright law is about making copies. Training a model does copy material - it must, it’s how computers work - and the lawsuits allege those copies are unauthorised.
Machine learning tables of weights are probably not copyrightable, but we can't be sure until there is more litigation.