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Comment by jcranmer | Hacker News Reader

> It's likely that generative AI in general will be deemed fair use, due to its (generally) transformative nature.

Have you read the recent SCOTUS decision in Warhol v Goldsmith? Because that's a pretty major redefinition of transformative for the purposes of fair use, and not in a good way for arguing that generative AI is fair use, especially because it ties transformative to the market impact. That generative AI is generally creating outputs that are directly competing with inputs (particularly in the case of generating images, where it's clearly competing with stock images) would make it dramatically less likely that a court would find that it is in fact transformative.

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From what I understand, the "market impact" test is about the value of the specific work for which the copyright has been infringed. If, 99% of the times, the generative AI systems do not output anything that a court/jury would deem a derivative work of the original, I don't see how the "effect on the market" prong can be won by the copyright holder.

I think the Warhol decision is an entirely different kettle of fish. Just take a look at the pieces in question: the Warhol portraits don't really look that different compared to the original photographs.

The benefit that generative AI has is that, when claiming copyright infringement, you need to specify individual works that were infringed. It's not enough to say "this work is an amalgam of these other ten thousand works, and we can't really tell you how."

I could imagine if generative AI gives an identical, word-for-word match for an individual piece of source material it could be in trouble, but that's also the easiest type of thing to prevent from an AI company perspective.

The fact is that existing copyright law just can't really encompass the kinds of societal concerns we have around generative AI.

No one has to claim individual copyright infringement for it to be copyright infringement.

At any rate you can force the infringer to disclose what works they use as input.

> No one has to claim copyright infringement for it to be copyright infringement.

That's a little bit like "If a tree falls in the forest but nobody hears it..."

I mean, sure, "theoretically" any number of things can be infringement. But it's obviously a gray area, so it only really matters when somebody brings a suit and a work is found to be legally infringing.

The pirate bay case demonstrated that you don't need to prove a specific instance of infringement, only that occurrence of infringement "somewhere/somehow" was more believable than the alternative theory that no such infringement has happened. It may be enough to demonstrate that infringement is trivial, and then point to user statistics to demonstrate that infringement is more believable than that infringement has never happened.

Until someone files a lawsuit and a judge and jury decide the infringement question, it’s all speculative.

Some cases are pretty obvious, but even literal copying isn’t always copyright infringement (e.g., if the material is arguably not eligible for copyright protection).

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