How do they get to the conclusion that AI uses are protected under the fair use doctrine and anything otherwise would be an "expansion" of copyright? Fairly telling IMO
But is that because it isn't fair use or because of the virulent rabies epidemic among media company lawyers?
The general problem is that both the structure of copyright and the legacy media business model were predicated on copying being a capital-intensive process. If a printing press is expensive then reproduction is a good place to collect royalties, because you could go after that expensive piece of equipment if they don't pay. And if a printing press is expensive then a publisher who has one is offering a scarce service in a market with a high barrier to entry.
The internet made copying free and that pretty well devastated the publishing industry, more as a result of the second one than the first. If your product isn't scarce -- if your news reporting is in competition with every blog and social media post -- you're not getting the same margins you used to. But there's no plausible way the incumbents are going to convince people that reporters with a website instead of a printing press need to be excluded from the market so they can have less competition, and that by itself and nothing more means their traditional business model is gone. They're competing for readers and advertisers against Substack and Reddit and the cat's not going back in the bag.
Meanwhile copyright infringement got way easier and that's much more plausible to frame as a problem, so the companies want to sic their lawyers on it, except that the bag is here on the ground and the cat is still over there getting a million hits. There is no obviously good way to solve it (but plenty of bad ways to not solve it) and solving it still wouldn't put things back the way they were anyway.
So their lawyers are constantly under pressure to do something but none of their options are good or effective which means they're constantly demanding things that are oppressive or asinine or, like the anti-circumvention clause in the DMCA, own-goals that tech megacorps use against content creators to monopolize distribution channels. Which is why it's an epidemic. If you can see the target the pressure is on to pull the trigger even when all you have is a footgun.
No, with LLMs being fair use. I'm not going to respond to the rest of your post which is a paranoid and pejorative screed based on the fallacy that copyright is predicated on copying being hard or intensive when that was never the case. Copying was always easy. Its the creative part that is hard and why copying was made illegal.
In which case you're responding to the wrong thread.
> Copying was always easy.
Compare the price of a physically printed book which is in the public domain to the median one that isn't. The prices are only a little lower because the printing and distribution costs are significant.
Now compare the price of ebooks in the public domain with ebooks still under copyright. The latter isn't 40% more or 75% more, it's a billion percent more. Infinitely more. Copying went from being a double-digit percentage of the price to being zero.
Perhaps famously, emulators very clearly and objectively impact the market for a game consoles and computers and yet they are also considered fair use under US copyright law.
No one part of the 4 part test is more important than the others. And so far in the US, training and using an LLM has been ruled by the courts to be fair use so long as the materials used in the training were obtained legally.
2. Nature of the work. Imaginative or creative. Unfavorable.
3. Quantity of use. All of it. Unfavorable.
4. Impact on original market. Direct competition. Royalty avoidance. Unfavorable.
Just because the courts have not done their job properly does not mean something illegal is not happening.
* The use is commercial (a number of emulators are paid access, and the emulator case that carved out the biggest fair use space for them was Connectix Virtual Game Station a very explicitly commercial product)
* The nature of the work is imaginative and creative. No one can argue games and game consoles aren't imaginative and creative works.
* Quantity of use. A perfect emulator must replicate 100% of the functionality of the system being emulated, often times including bios functionality.
* Impact on market. Emulators are very clearly in direct competition with the products they emulate. This was one of Sony's big arguments against VGS. But also just look around at the officially licensed mini-retro consoles like the ones put out by Nintento, Sony and Atari. Those retro consoles are very clearly competing with emulators in the retro space and their sales were unquestionably affected by the existence of those emulators. Royalty avoidance is also in play here since no emulator that I know of pays licensing fees to Nintendo or Sony.
So are emulators a violation of copyright? If not, what is the substantial difference here? An emulator can duplicate a copyrighted work exactly, and in fact is explicitly intended to do so (yes, you can claim its about the homebrew scene, and you can look at any tutorial on setting up these systems on youtube to see that's clearly not what people want to do with them). Most of the AI systems are specifically programmed to not output copyrighted works exactly. Imagine a world where emulators had hash codes for all the known retail roms and refused to play them. That's what AI systems try to do.
Just because you have enumerated the 4 points and given 1 word pithy arguments for something illegal happening does not mean that it is. Judge Alsup laid out a pretty clear line of reasoning for why he reached the decision he did, with a number of supporting examples [1]. It's only 32 pages, and a relatively easy read. He's also the same judge that presided over the Oracle v. Google cases that found Google's use of the java APIs to be fair use despite that also meeting all 4 of your descriptions. Given that, you'll forgive me if I find his reasoning a bit more persuasive than your 52 word assertion that something illegal is happening.
[1]: https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwbgqlzpw/...
Well they are completely different systems functioning in completely different ways and only looking at one of the four factors isn't doing any favors.
Just like OpenAI is rightfully upset if their LLM output is used to train a competitor’s model and might seek to restrict it contractually, publishers too may soon have EULAs just for reading their books.
Surely making copyright even stronger (and even expanding it to cover style as some have argued in response to the Ghibli style stuff) will have no unintended consequences going forward into a future where more and more technology is locked down by major manufacturers with a strong incentive to use and abuse IP law to prevent competition and open alternatives... right?
Also instructive would be the IBM BIOS clone, it is perhaps true that the "IBM Compatibles" killed the market that existed for IBM machines at that moment in time, but it's also true that it opened whole new markets, both to the clone makers and the ancillary businesses, but also arguably IBM themselves.
3d printing and Arduino are probably other examples where "counterfeits" might have shrunk the market for the originals (Prusa is notably reducing how open their designs are, and Arduino themselves are not the healthiest, modulo being owned by Qualcom now), but the market for Aruduino projects and ancillary supplies and certainly the market for 3d printers is massively healthy, and arguably both are healthier than if Arduino or Prusa (or really Reprap) were the single and sole providers of their products.
And I think art has an even stronger bulwark in that a lot of the value of a given "art" comes not from the art itself, but from the artist. It's very possible many famous artist's works were actually made by their apprentices, but until someone proves that, the art will continue to have value as an original work of the artist. But art is also a dime a dozen (or less). The internet is full of free or dirt cheap art and today you can go on fiver or mechanical turk and commission any number of artworks for probably less than your day's wages. But no one is buying tickets to your Fiver concert. No one buys $1k per plate dinners at Deviant Art gallery showings. But they will pay many thousands of dollars for a piece of artwork that might destroy itself because the person who produced that artwork is named Banksy.
And then for inference, wouldn't it depend on what you're actually using it for? If you're doing sentiment analysis, that's very different than if you're creating an unlicensed Harry Potter sequel that you expect to run in theaters and sell tickets. But conversely, just because it can produce a character from Harry Potter doesn't mean that couldn't be fair use either. What if it's being used for criticism or parody or any of the other typical instances of fair use?
The trouble is there's no automated way to make a fair use determination, and it really depends on what the user is doing with it, but the media companies are looking for some hook to go after the AI companies who are providing a general purpose tool instead of the subset of their "can't get blood from a stone" customers who are using that tool for some infringing purpose.
Well, AI training has annoyed LOTS people. Overloaded websites.. Done things just because they can . ie Facebook sucking up content of lots pirate books
Since this AI race started our small website is constantly over run by bots and it is not usable by humans because of the load.. NEWER HAD this problem before AI , when just access by search engine indexing .....
If Google, Bing, Baidu and Yandex each come by and index your website, they each want to visit every page, but there aren't that many such companies. Also, they've been running their indexes for years so most of the pages are already in them and then a refresh is usually 304 Not Modified instead of them downloading the content again.
But now there are suddenly a thousand AI companies and every one of them wants a full copy of your site going back to the beginning of time while starting off with zero of them already cached.
Ironically copyright is actually making this worse, because otherwise someone could put "index of the whole web as of some date in 2023" out there as a torrent and then publish diffs against it each month and they could all go download it from each other instead of each trying to get it directly from you. Which would also make it easier to start a new search engine.
So, again, to answer my question, it's certainly not a settled matter of law that AI models and/or their "training" is actually akin to a search engine such that it amounts to a fair use. So how is it that the EFF is reporting it like a fact?
They do link to a (very long) article by a law professor arguing that data mining is fair use. If you want to get into the weeds there, knock yourself out.
https://lawreview.law.ucdavis.edu/sites/g/files/dgvnsk15026/...
While it hasn't either been ruled on or turned away at the Supreme Court yet, a number of federal trial courts have found training AI models from legally-acquired materials to be fair use (even while finding, in some of those and other cases, that pirating to get copies to then use in training is not and using models as a tool to produce verbatim and modified similar-medium copies of works from the training material is also not.)
I’m not aware of any US case going the other way, so, while the cases may not strictly be precedential (I think they are all trial court decisions so far), they are something of a consistent indicator.
I still don't get this one. It seems like they've made a ruling with a dependency on itself without noticing.
Suppose you and some of your friends each have some books, all legally acquired. You get them together and scan them and do your training. This is the thing they're saying is fair use, right? You're getting together for the common enterprise of training this AI model on your lawfully acquired books.
Now suppose one of your friends is in Texas and you're in California, so you do it over the internet. Making a fair use copy is not piracy, right? So you're not making a "pirated copy", you're making a fair use copy.
They recognize that one being fair use has something to do with the other one being, but then ignore the symmetry. It's like they hear the words "file sharing" and refuse to allow it to be associated with something lawful.
So in the case of you and your friends, it isn't the physical location that makes a difference, but whether you obtained the original copy legally, and the subsequent copies were necessary parts of the training process. This is also one of those places where we see the necessity for a legal concept of corporate "personhood". AnthonyMouseAI Inc. is the entity that needs to acquire and own the original copy in order for you and your friend to be jointly working on the process and sending copies back and forth. If your friend stops being an employee of AnthonyMouseAI Inc, they can't keep those copies and you can't send them any more.
Can you and your buddies do this without forming a legal corporation or partnership? Sure. Will that be a complicating factor if a publisher sued you? Probably.
But that's the issue, isn't it? Someone has bought a legitimate copy and put it on Napster with the intention of providing copies to people when it's fair use.
If people then download it for non-fair use purposes while they all wink at each other, it doesn't become fair use just because you said it was.
But if the person(s) downloading it actually do make fair use of it, isn't that different? How is it unlike borrowing a book from the library and quoting an excerpt from it in your criticism?
> Can you and your buddies do this without forming a legal corporation or partnership?
Partnerships aren't corporations and are generally what gets formed by default if nobody files any paperwork. There are often reasons that's not what you want, but that's not the point here.
It's also sort of like, so if you filed official paperwork for a limited-liability partnership that lets anyone in then you could do it? If that was actually the thing that matters then they would just do that, right? Which also implies that it shouldn't be, because vacuous requirements are unproductive.
To the best of my understanding of the law, making whole copies of a work for other people to then make fair use of is generally not considered fair use. There are some narrow cases where it has been; the two that come to mind are a case (whose name escapes me) that found reproducing an entire editorial for commentary and discussion on a discussion forum was fair use and a handful of cases regarding whether a print shop is liable for copyright infringements if a customer orders a copy made of a work.
Likewise the person downloading it can't be making fair use of the work unless they already have a copy of the work they have legally obtained. This was a key point of the Anthropic case, the use of legally purchased or acquired books was fair use, the use of the copies obtained only via piracy were not. I don't recall if Alsup addressed it specifically in his ruling, and to the best of my knowledge otherwise no rulings have ever been made on the legality of "I own a legal copy of this work, and I am acquiring a copy made from someone else's legal copy for fair use purposes" (this is often the theory behind why downloading ROMs if you own the game already could be legal).
> How is it unlike borrowing a book from the library and quoting an excerpt from it in your criticism?
Libraries have been something publishers have hated for a long long while. They routinely try to extort massive amounts of money out of them (see separate pricing for "library" copies of media, maximum lending count limits on "library" ebooks etc). One of the reasons is that a library as you point out sort of puts a big dent in the "fair use derives from ownership / first sale doctrine" idea. Again, to the best of my knowledge, cases involving using library copies just tend to get their own set of rules, and are also probably just fewer and farther between because it's unlikely you can convince a library to let you just scan all of their books regardless of the legality of you doing so.
As for the partnership thing, my point was mostly that any legal entity that can jointly own property would have to be the owner of a work for people within that entity to distribute copies between each other, and that once a person leaves the legal entity they could no longer keep or obtain copies of works owned by the entity.
Who is making the copy? You have your copy that you bought. Bits in a wire are transient so that shouldn't be a copy any more than opening a book and exposing it to a reading lamp. The copy is made at the destination by them on their own storage medium. It still seems hard to distinguish from borrowing a book and making fair use of that.
> Likewise the person downloading it can't be making fair use of the work unless they already have a copy of the work they have legally obtained. This was a key point of the Anthropic case, the use of legally purchased or acquired books was fair use, the use of the copies obtained only via piracy were not.
Which is the thing I'm struggling to understand the logic of. It's like calling it piracy by stipulation from the outset and then using that to decide if it's piracy or not. That's just assuming the conclusion. If the person uploading it has a purchased copy, and the person downloading it in order to make a copy is making fair use, where is the piracy happening? A fair use copy of a lawfully purchased work is being made. It seems like they're just trying to find a way to call it piracy because it involves file sharing without even considering what's actually happening.
> Libraries have been something publishers have hated for a long long while.
Well yeah, but they're not supposed to be the ones who decide what the law is.
> it's unlikely you can convince a library to let you just scan all of their books regardless of the legality of you doing so.
Isn't scanning books from libraries the thing Google Books did? And the legality is the issue.
> As for the partnership thing, my point was mostly that any legal entity that can jointly own property would have to be the owner of a work for people within that entity to distribute copies between each other, and that once a person leaves the legal entity they could no longer keep or obtain copies of works owned by the entity.
Which still doesn't seem like it quite works.
Suppose you want to train an AI model, so you buy a bunch of books, scan them, train the model and publish the model on the internet. Presumably someone who gets a copy of the model doesn't need a copy of the books? But then why would you need a copy of the books? Couldn't you discard the scans, sell the books and keep the model?
At which point, how are we distinguishing this from borrowing the books, training the model and discarding the scans?
We can also consider this from a policy perspective. If Google had to buy a single copy of the book and wasn't allowed to sell it, would that really matter to the publisher or Google? Nope. The publishers are just looking for a hook to sue them. But it would matter to someone smaller who was trying to do it on a budget because it would make the smaller or non-profit effort non-viable, which doesn't get the publishers anything either way. So what should we do here? Probably not the thing that gives a big advantage to massive incumbents over their smaller/decentralized/non-profit competitors without providing the publishers with anything of significance.
This is often repeated, but not true. Multiple US and UK courts have repeatedly ruled that it is fair use.
Anthropic won. Meta won. Just yesterday, Stability won against Getty.
At this point, it's pretty obvious that it's legal, considering that media companies have lost every single lawsuit so far.
That's certainly an "idea"
There's nothing pro-bigtech in this proposal. Big tech can afford the license fees and lawsuits... and corner the market. The smaller providers will be locked out if an extended version of the already super-stretched copyright law becomes the norm.
A lot of the people that were anti-expansive-copyright only because it was anti-big-media have shifted to being pro-expansive-copyright because it is perceived as being anti-big-tech (and specifically anti-AI).