Following your line of reasoning if it is perfectly legal to walk into a coffee shop and sit down and listen to what the people next to me are talking about, commit it to memory, even make notes about it, does it then follow that it should be perfectly legal, reasonable, and acceptable for a govt agency or some other organization to put microphones everywhere to record what everyone is talking about, then feed all this data into various databases and modeling systems?
Reciting something in a park is different than selling a copyrighted print of something in a park when you don’t hold the copyright. Which is much closer to what the NYT is accusing OpenAI of.
The training data not “existing” in the model is interesting, but at some point, a distinction without a difference.
If I hire an autistic savant to go to a library and read all the books, then I set up a book selling service where whenever people want to buy a book I have my savant employee type out the book for them, is it then going to pass muster in a copyright case if I tell the judge “It’s okay actually, because the books don’t actually exist in my employee’s brain, merely neuronal encodings of them.” ?
If I have a copyrighted image on which I don’t hold the copyright. But I want to start selling it to people, is it cool if I just run it through a lossless compression algorithm, thereby generating a new encoding of the information and then sell this new encoding along with the software and command to reverse the compression?
Regarding the open source stuff, there I think you might find more favor to your arguments.
But the stuff we are seeing within commercial enterprises like OpenAI and Midjourney is clearly copyright infringement.
And I don’t see copyright law being insane in these cases.