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The standard for copyright infringement in the US is access and substantial similarity. In other words: 1. Did you see/hear/read the original?[0] 2. If so, do

The standard for copyright infringement in the US is access and substantial similarity. In other words: 1. Did you see/hear/read the original?[0] 2. If so, does your work look like the original if you squint a little? My gut feeling is that use of an AI with a copyrighted work in it's training set would constitute access for the purpose of determining copyright infringement. Substantial similarity would be determined on a case-by-case basis. It's trivially easy to get AI to spit out fragments of its training set; GitHub Copilot would infamously fill out the Quake inverse square root hack if you asked it to complete the comment "//evil floating point bit level hacking"[1]. There's no case law supporting any of what I just said; but I can't think of a counterargument to "training set = access". This creates a problem for anyone who wants to use AI to generate art and also follow copyright law. I have no fucking clue how you would go about clearing AI-generated art, other than to just pay whoever complains. This is actually how the creative industry works internally. Everyone just buys whatever they can license, tries not to do obvious infringements, and pays to make the problem go away. It's only the FOSS types like us that actually worry about being non-infringing, since we want to avoid copyright virality[2]. Also, I have a bit of a disdain for the current state of generative art. The people hyping up the technology want to use it to kill and eat artists, by replacing them with AI that can bury them in post-scarcity. In practice, current AI requires a lot of human effort and cajoling to corral it into creating something good. For every amazing demo of it spitting out an amazing work that matches the prompt, looks good, and is consistent; there's about ten or so failures where the AI just puts stuff wherever, never converges into an actual picture, or otherwise hands you back some kind of disgusting nightmare. AI has no taste. [0] There used to be 9th Circuit precedent for the "inverse ratio test", which says that if you have a lot of access, the judge or jury can squint harder when determining substantial similarity. This has been overturned for obvious reasons, but not early enough to save Katy Perry from getting sued over an ostinato. [1] Microsoft responded by... turning off Copilot if you entered in said comment. Not a good look. [2] No, the GPL did not invent this problem, it's just a different strain of the virus.

inasmuch 5y ago
Yeah, all this makes sense. > Also, I have a bit of a disdain for the current state of generative art. The people hyping up the technology want to use it to kill and eat artists, by replacing them with AI that can bury them in post-scarcity. Yuuuuuup. Which makes me sad to say, because I had a big generative art phase when I was younger and loved seeing what I could do with hex editors and circuit-bending. I don't want to tread into the minefield of evaluating others' artistic processes, but my taste is for art with apparent intent and intentionality. In an era where notions of artistry have been largely divorced from technique, and technique is increasingly democratized anyway, I want to believe there is still some room for distinction between a neat image and a piece of art. Many people see that as elitist gatekeeping or something, but if everything is valuable, nothing is valuable, and I think value is important.

inasmuch 5y ago

Yeah, all this makes sense. > Also, I have a bit of a disdain for the current state of generative art. The people hyping up the technology want to use it to kill and eat artists, by replacing them with AI that can bury them in post-scarcity. Yuuuuuup. Which makes me sad to say, because I had a big generative art phase when I was younger and loved seeing what I could do with hex editors and circuit-bending. I don't want to tread into the minefield of evaluating others' artistic processes, but my taste is for art with apparent intent and intentionality. In an era where notions of artistry have been largely divorced from technique, and technique is increasingly democratized anyway, I want to believe there is still some room for distinction between a neat image and a piece of art. Many people see that as elitist gatekeeping or something, but if everything is valuable, nothing is valuable, and I think value is important.