this post was submitted on 29 Nov 2023
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I don't think it really matters how accessible it is, what matters is the purpose of use. In a nutshell, fair use covers education, news and criticism. After that, the first consideration is whether the use is commercial in nature.
ChatGPT's use isn't education (research), they're developing a commercial product - even the early versions were not so much prototypes but a part of the same product they have today. Even if it were considered as a research fair use exception, the product absolutely is commercial in nature.
Whether or not data was openly accessible doesn't really matter - more than likely the accessible data itself is a copyright violation. That would be a separate violation, but it absolutely does not excuse ChatGPT's subsequent violation. ChatGPT also isn't just reading the data at its source, it's copying it into its training dataset, and that copying is unlicensed.
Actually, the act of copying a work covered by copyright is not itself illegal. If I check out a book from a library and copy a passage (or the whole book!) for rereading myself or some other use that is limited strictly to myself, that's actually legal. If I turn around and share that passage with a friend in a way that's not covered under fair use, that's illegal. It's the act of distributing the copy that's illegal.
That's why whether the AI model is publicly accessible does matter. A company is considered a "person" under copyright law. So OpenAI can scrape all the copyrighted works off the internet it wants, as long as it didn't break laws to gain access to them. (In other words, articles freely available on CNN's website are free to be copied (but not distributed), but if you circumvent the New York Times' paywall to get articles you didn't pay for, then that's not legal access.) OpenAI then encodes those copyrighted works in its models' weights. If it provides open access to those models, and people execute these attacks to recover pristine copies of copyrighted works, that's illegal distribution. If it keeps access only for employees, and they execute attacks that recover pristine copies of copyrighted works, that's keeping the copies within the use of the "person" (company), so it is not illegal. If they let their employees take the copyrighted works home for non-work use (or to use the AI model for non-work use and recover the pristine copies), that's illegal distribution.
I'm going to need you to back that up with a source. Specifically, legislation.
What you're getting at here is the fair use exemption for education or research, which I have already explained. When considering fair use, it has to be for specific use cases (education, research, news, criticism, or comment). Then, after that, the first thing the court considers is whether the use is commercial in nature. The second is the amount of copying.
You checking a book out of a library and copying down a passage will almost certainly be education/research, and probably noncommercial, so it will most likely be fair use. Copying the whole book might also be fair use, but it is less likely to be so. Copying a book for a commercial report is far less likely.
The fact that it's "strictly limited to yourself" has no real bearing in law. Like I say, this isn't research - they're not writing academic papers and releasing their dataset for others to reproduce and prove their work - and even the earliest versions of their training have some presence in the existing commercial product they have developed. Their use is thus not research, so not fair use, and even if you considered it as research it is highly commercial in nature and they are copying full work into their training dataset.
Bringing in the whole "the law treats corporations as people" is further proving you don't really know how IP law works. Just because something is published and freely accessible does not give the reader unlimited copyright to it. Fair use is an extremely limited exemption.