4 ms·

how would commercialization (such as, selling things made with AI, like artwork, books, etc., monetizing AI models, like selling access to them) affect 'fair us

by pxoe 4y ago

how would commercialization (such as, selling things made with AI, like artwork, books, etc., monetizing AI models, like selling access to them) affect 'fair use'? so far, what I'm getting is that training a model on data may be 'fair use' (though, is it creating a derivative of that data? are training results a derivative? and would there be a difference if it's made for/used for commercial purposes, or not), but the output seems to be kind of in a 'copyright limbo'.

kmeisthax 4y ago
One of the fair-use factors is commerciality of the reuse; specifically non-commercial uses are more likely to be fair. However, this factor is treated with little weight. Practically speaking it is very difficult to imagine a reuse of a copyrighted work that does not carry some commercial benefit to someone. At the very least, not having to pay for a license is a commercial benefit of its own. Generally speaking, assume all uses are commercial and you will understand a lot of modern fair use cases. Legally speaking, "fair use" and "derivative work" are mutually exclusive. In fact, both terms were coined at the same time when SCOTUS created the entire derivative rights regime basically out of thin air in Folsom v. Marsh. They needed a legal tool to prevent people from stealing large sections of a work, but also didn't want to allow copyright owners to abolish the 1st Amendment. Hence, they set up a set of deliberately murky legal tests to determine if a use was "fair" or not. If you want a quick standard to gut-check against, the question you'd ask is: "is this use something that other people would ordinarily pay for?" If so, then it's infringing. If not, then it might be fair use. So you can see why making an image generator might be fair use, but it's output would be infringing if you could identify an original work the AI was cribbing from. It'd be difficult to even fathom how licensing on a training set would work, given that there's no clear chain of value from a particular entry in the set to a particular model weight or output. But we can clearly identify if an AI system is regurgitating training output, or has been told to copy someone else's work and change it a little - at least after-the-fact in a court of law.

by pxoe 4y ago

kmeisthax 4y ago

One of the fair-use factors is commerciality of the reuse; specifically non-commercial uses are more likely to be fair. However, this factor is treated with little weight. Practically speaking it is very difficult to imagine a reuse of a copyrighted work that does not carry some commercial benefit to someone. At the very least, not having to pay for a license is a commercial benefit of its own. Generally speaking, assume all uses are commercial and you will understand a lot of modern fair use cases. Legally speaking, "fair use" and "derivative work" are mutually exclusive. In fact, both terms were coined at the same time when SCOTUS created the entire derivative rights regime basically out of thin air in Folsom v. Marsh. They needed a legal tool to prevent people from stealing large sections of a work, but also didn't want to allow copyright owners to abolish the 1st Amendment. Hence, they set up a set of deliberately murky legal tests to determine if a use was "fair" or not. If you want a quick standard to gut-check against, the question you'd ask is: "is this use something that other people would ordinarily pay for?" If so, then it's infringing. If not, then it might be fair use. So you can see why making an image generator might be fair use, but it's output would be infringing if you could identify an original work the AI was cribbing from. It'd be difficult to even fathom how licensing on a training set would work, given that there's no clear chain of value from a particular entry in the set to a particular model weight or output. But we can clearly identify if an AI system is regurgitating training output, or has been told to copy someone else's work and change it a little - at least after-the-fact in a court of law.