this post was submitted on 26 Jan 2024
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I've had this discussion before, but that's not how copyright exceptions work.
Right or wrong (it hasn't been litigated yet), AI models are being claimed as fair use exceptions to the use of copyrighted material. Similar to other fair uses, the argument goes something like:
"The AI model is simply a digital representation of facts gleamed from the analysis of copyrighted works, and since factual data cannot be copyrighted (e.g. a description of the Mona Lisa vs the painting itself), the model itself is fair use"
I think it'll boil down to whether the models can be easily used as replacements to the works being claimed, and honestly I think that'll fail. That the models are quite good at reconstructing common expressions of copyrighted work is novel to the case law, though, and worthy of investigation.
But as someone who thinks ownership of expressions is bullshit anyway, I tend to think copyright is not the right way to go about penalizing or preventing the harm caused by the technology.
So selling fan fiction and fan-made game continuations and modifications should be legal?
Not the OP, but yes it absolutely should. The idea you can legaly block someones creative expression because they are using elements of culture you have obtained a monopoly of is obscene.
I know it should. Only then we'd have no IP remaining. As it should be, the only case where it's valid is punishing somebody impersonating the author or falsely claiming authorship, and that's frankly just fraud.
It should, but also that is significantly different from what an AI model is.
It would be more like a list of facts and information about the structure of another work, and facts and patterns about lots of other similar works; and that list of facts can easily be used to create other, very similar works, but also it can be used to create entirely new works that follow patters from the other works.
In as much as the model can be used to create infringing works -but is not one itself- makes this similar to other cases where a platform or tool can be used in infringing ways. In such cases, if the platform or tool is responsible for reasonable protections from such uses, then they aren't held liable themselves. Think Youtube DMCA, Facebook content moderation, or even Google Books search. I think this is likely the way this goes; there is just too strong a case (with precedent) that the model is fair use.
Copyright law is the right tool, but the companies are chasing the wrong side of the equation.
Training should not and I suspect will not be found to be infringement. If old news articles from the NYT can teach a model language in ways that help it review medical literature to come up with novel approaches to cure cancer, there's a whole host of features from public good to transformational use going on.
What they should be throwing resources at is policing usage not training. Make the case that OpenAI is liable for infringing generation. Ensure that there needs to be copyright checking on outputs. In many ways this feels like a repeat of IP criticisms around the time Google acquired YouTube which were solved with an IP tagging system.
Should Photoshop check your image for copyright infringement? Should Adobe be liable for copyright infringing or offensive images users of it's program create?
If it's contributing creatively to your work, yeah, totally.
If you ask Photoshop fill to add an italian plumber and you've been living under a rock for you life so you don't realize it's Mario, when you get sued by Nintendo for copyright infringement it'd be much better policy if it was Adobe on the hook for adding copyrighted material and not the end user.
A better analogy is: if you hired a graphic designer and they gave you copyrighted material, who is liable?
AI is not contributing creatively though, programs do not create.
I am speaking of Photoshop used as a non-AI tool as it has been used to commit copyright infringement for decades before Photoshop fill was a thing. Should it check if your image infringes on copyright?
The graphic designer. If you went ahead and redistributed it you would also be liable. Whatever program he used or it's developer wouldn't be liable.
You and I will have to agree to disagree on that Kool-aid, and it's that disagreement which is core to the model provider being liable for introducing copyright infringement.
Did photoshop create a portion of my image? Did adobe add a "generate the picture I asked for, for me, without my input beyond a typed prompt" as a feature?
Because if they did, 100% yeah, theyre liable.
They actually are not whether you use a prompt to generate the picture or a digitally paint it with a tablet.
The user would be the one committing copyright infringement.
There's no money for them in that angle though. It's much easier to sue xerox for enabling copyright violations than the person who used the machine to violate copyright.
Courts have already handled this with copy machines. AI isn't terribly different, it's unlikely these suits against model creators succeed.
There's money (and more importantly, survival) if they can ensure liability of Xerox for infringement on the use of their centralized copiers.
There actually isn't survival as a company even if they succeed on training but not the other, which I don't think they realize yet.
As an aside, one of the worst legal takes I read on this was from a GC at the Copyright office during the 70s who extensively used poor analogies to copiers to justify an infringement argument.