http://suchir.net/fair_use.html
When does generative AI qualify for fair use? by Suchir Balaji
When does generative AI qualify for fair use? by Suchir Balaji
> I recently participated in a NYT story about fair use and generative AI, and why I'm skeptical "fair use" would be a plausible defense for a lot of generative AI products. I also wrote a blog post (https://suchir.net/fair_use.html) about the nitty-gritty details of fair use and why I believe this.
> To give some context: I was at OpenAI for nearly 4 years and worked on ChatGPT for the last 1.5 of them. I initially didn't know much about copyright, fair use, etc. but became curious after seeing all the lawsuits filed against GenAI companies. When I tried to understand the issue better, I eventually came to the conclusion that fair use seems like a pretty implausible defense for a lot of generative AI products, for the basic reason that they can create substitutes that compete with the data they're trained on. I've written up the more detailed reasons for why I believe this in my post. Obviously, I'm not a lawyer, but I still feel like it's important for even non-lawyers to understand the law -- both the letter of it, and also why it's actually there in the first place.
> That being said, I don't want this to read as a critique of ChatGPT or OpenAI per se, because fair use and generative AI is a much broader issue than any one product or company. I highly encourage ML researchers to learn more about copyright -- it's a really important topic, and precedent that's often cited like Google Books isn't actually as supportive as it might seem.
> Feel free to get in touch if you'd like to chat about fair use, ML, or copyright -- I think it's a very interesting intersection. My email's on my personal website.
I think the only principle positions to be had here is to either ignore IP rights for LLM training, or give up entirely, because a model designed to be general like human will need to be trained like a human, i.e. immersed in the same reality as we are, same culture, most of which is shackled by IP claims - and then, obviously, by definition, as it gets better it gets more competitive with humans on everything humans do.
You can produce a complaint that "copyrighted X was used in training a model that now can compete with humans on producing X" for arbitrary value of X. You can even produce a complaint about "copyrighted X used in training model that now outcompetes us in producing Y", for arbitrary X and Y that are not even related together, and it will still be true. Such is a nature of a general-purpose ML model.
IP rights, or even IP itself as a concept, isn’t fundamental to existence nor the default state of nature. They are contigent concepts, contigent on many factors.
e.g. It has to be actively, continuously, maintained as time advances. There could be disagreements on how often, such as per annum, per case, per WIPO meeting, etc…
But if no such activity occurs over a very long time, say a century, then any claims to any IP will likely, by default, be extinguished.
So nobody needs to do anything for it all to become irrelevant. That will automatically occur given enough time…
This is correct. Copyright wasn't a thing until after the invention of the printing press.
That argument is equally absurd as one where you write a program that does the same thing. Model training is not only fair use, but publishers should be grateful someone has done something of value for humanity with their collected drivelings.
Many artists don't like how image generators, trained on their original work, allow others to replicate their (formerly) distinctive style, almost instantly, for pennies.
Many authors don't like how language models can enable anyone to effortlessly create a paraphrased versions of the author's books. Plagiarism as a service.
Human artists and writers can (and do) do the same thing, but the smaller scale, slower speed, and higher cost reduces the economic effects.
If I'm an artist and copy the style of another artist, I'm also competing with that artist, without violating copyright. I wouldn't see this argument holding up unless it can output close copies of particular works.
If a set of OpenAI model weights ever leak, it would be interesting to see if OpenAI tries to claim they are subject to copyright. Surely it would be a double standard if the outcome is distributing model weights is a copyright violation, but the outputs of model inference are not subject to copyright. If they can only have one of the two, the latter point might be more important to OpenAI than protecting leaked model weights.
At least in the US, a derivative work is a creative (i.e. copyrightable) work in its own right. Neither AI models nor their output meet that bar, so it's not clear what the infringing derivative work could be.
They are however, considered to be infringing.
My point is that with LLM outputs that's not true - according to the copyright office they are not themselves expressive content, so it's not obvious how they could infringe on (i.e. contain the expressive content of) other works.
Something is not required to be expressive content, to be bound under law. That's not a requirement.
The law goes out of its way to not define what "a work" is. The US copyright system instead says "the material deposited constitutes copyrightable subject matter". A copyrightable thing is defined by being copyrightable. There's a logical loop there, allowing the law to define itself, as best makes sense. It leans on Common Law, not some definition that is written down.
"an AI-created work is likely either (1) a public domain work immediately upon creation and without a copyright owner capable of asserting rights or (2) a derivative work of the materials the AI tool was exposed to during training."
AI outputs aren't considered copyrighted, as there's no person responsible. The person has the right to copyright for the creations. A machine, does not. If the most substantial efforts involved are human, such as directly wielding a tool, then the person may incur copyright on the production. But an automated process, will not. As AI stands, the most substantial direction is not supplied by the person.
Do you have a source that illegal works can’t be / aren’t copyrighted?
https://yjolt.org/copyrighted-crimes-copyrightability-illega...
Says for example:
> As long as a work is original and fixed in a tangible medium of expression, it is entitled to copyright protection and eligible for registration, regardless of its content. Thus, child pornography, snuff films or any other original works of authorship that involve criminal activities are copyrightable.
To be honest, reading this I have no idea what you think my post said, so I can only ask you to reread it carefully. Obviously nobody would claim "piracy is expressive content" (what would that even mean?). I said a game is expressive content, and that that's why distributing a pirated game infringes copyright.
For example, suppose if I photograph a copyrighted painting, and then started selling copies of the slightly-cropped photo. The output wouldn't have enough originality to qualify as a derivative work (let alone an original work) but it would still be infringement against the painter.
He seemed very insightful for someone that isn't a lawyer.
RIP.
I would respond to this by
1. authors don't actually get revenue from royalties, instead it's all about add revenue which leads to enshittification. If they were to live on royalties they would die of hunger, artists, copywriters and musicians.
2. copyright is increasingly concentrated in the hands of a few companies and don't really benefit the authors or the readers
3. actually the competition to new creative works is not AI, but old creative works that have been accumulating for 25 years on the web
I don't think restrictive copyright is what we need. Instead we have seen people migrate from passive consumption to interactivity, we now prefer games, social networks and search engines to TV, press and radio. Can't turn this trend back, it was created by the internet. We have now wikipedia, github, linux, open source, public domain, open scientific publications and non-restrictive environments for sharing and commenting.
If we were to take the idea of protecting copyrights to the extreme, it would mean we need to protect abstract ideas not just expression, because generative AI can easily route around that. But if we protected abstractions from reuse, it would be a disaster for creativity. I just think copyright is a dead man walking at this point.