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Comment by otterley | Hacker News Reader

> 2 and 3 are not copyright violations, even if the data is copyrighted, because they fall under fair use (at least in the US).

This cannot be known until it is litigated. Fair Use is not something you can unilaterally declare and have it be so, just like you can't be like Michael Scott in the Office shouting "I declare bankruptcy!" OpenAI is currently defending itself against the New York Times for this very reason.

There's a multi-factor test that courts weigh the facts against in making a determination as to whether a prima facie copyright violation would be protected under a Fair Use defense:

Factor 1: The Purpose and Character of the Use

Factor 2: The Nature of the Copyrighted Work

Factor 3: The Amount or Substantiality of the Portion Used

Factor 4: The Effect of the Use on the Potential Market for or Value of the Work

See https://copyright.columbia.edu/basics/fair-use.html for a pretty good overview of what the analysis entails.

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> This cannot be known until it is litigated. Fair Use is not something you can unilaterally declare and have it be so.

Correct, but what isn't clear here is their rationale for why they think they're covered by fair use. Does anybody have that information?

I'm not saying their interpretation is correct, but seems to be germane to this discussion. The parent comment seems to assume none of this has been litigated yet, which might also be true. Or not.

They're hoping that $10 billion will buy them the kinds of lawyers Oracle had when they basically rewrote copyright law on API's. The AI companies hope to do this in a way that makes everything they're doing either legal or too muddy for lawsuits.

Thanks. This is really informative, and really important information given the growing relevance of IP law in everyone's daily life. Part of me wonders if these four factors will ever become part of core curriculum for civics classes.

By no means am I an expert in copyright law, but factor 3 seems like very bad news if you're OpenAI.

Whether something is fair use or not is not determined by a court, but by the definition of what fair use is. A court interprets that definition and the situation, and if their interpretation matches yours you may have a ruling in your favor. But saying "this is fair use" is no more incorrect than saying "this is red". You're interpreting your perception and putting that interpretation into words.

> But saying "this is fair use" is no more incorrect than saying "this is red".

When a court determines that it isn't, you can continue to argue it as much as you like (to deaf ears), and yet you're still liable to the copyright holder. Whether it's "incorrect" or not is then irrelevant. Let's not argue semantics here.

>But saying "this is fair use" is no more incorrect than saying "this is red"

No, they are different. "fair use" is a legal term. It is not like saying "I use it like this, I think it is fair!", the term "fair use" literally is a legal term that means a particular thing in the court of law.

https://en.wikipedia.org/wiki/Fair_use

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