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That's an interesting analysis. The issue isn't really whether the A.I. has creative ability, though, if we're talking about whether it infringes copyright. I t

That's an interesting analysis. The issue isn't really whether the A.I. has creative ability, though, if we're talking about whether it infringes copyright. I think comparing the A.I. to a really simple bot is informative. If I wrote a novel that contained once sentence from 1,000 people's novels, it would probably be fair use since I hardly took anything from any individual person and because my novel is probably not harming those other writers. If I wrote a bot that did the same thing, same result, because my bot uses only a little from everyone's novel and doesn't harm the original novelist, so it's likely fair use. Now I think a J.K. Rowling A.I. probably takes at least a little from her when it produces output, but it's not clear to me how much is actually based on J.K. Rowling and how much is a dataset of how words tend to be associated with other words. You could design a J.K. Rowling A.I. that uses nothing from J.K. Rowling, just data that is said to be J.K. Rowling-esque.

shagie 4y ago
Your one sentence from one thousand works is likely seen as transformative. https://www.copyright.gov/fair-use/ https://www.copyright.gov/fair-use/ > Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. Creating a model from copyrighted works is likely sufficiently transformative to be non-infringing even if it is found to be a derivative work.
- anotherman554 4y ago
  "Creating a model from copyrighted works is likely sufficiently transformative to be non-infringing even if it is found to be a derivative work." Maybe, but one of the factors of fair use is whether it deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. If ChatGPD gets so good at writing J.K. Rowling novels that it hurts the sales of the next J.K. Rowling book, that's a strong argument against the use being fair, even if it is transformative. If J.K. Rowling signs an exclusive agreement with Google to train on J.K. Rowling novels, that's another factors that would suggest OpenAI's use is not fair, because she's shown OpenAI is hurting a potential market for J.K. Rowling selling the use of her novels to train A.I.
  - shagie 4y ago
    But the model doesn't have any agency. GPT isn't spitting out novels in the style of J.K. Rowling and sending them to publishers - a human is. GPT being instructed to tell a Harry Potter story itself is no more infringing than a child asking a parent for a made up Harry Potter bed time story. They equally infringe and undermine new or potential markets for copyrighted work. The question is "what do you do with the material?" If a human took the output of GPT writing as J.K. Rowling or a parent took their collected Harry Potter bedtime stories - those are equally problematic. If I was to take a portrait of Marilyn Monroe and send it through a plugin called Warholize in Photoshop ( https://www.adobe.com/creativecloud/photography/hub/guides/create-andy-warhol-style-pop-art-photoshop-how-to https://www.adobe.com/creativecloud/photography/hub/guides/c... ) , it's not the plugin or photoshop that is infringing - it would be me, the human who created an infringing work. If I print it out and hang it on my wall, that didn't particularly impact on the income for the Warhol estate nor deprive them of new markets. If I print out copies of it and sell them - then that is a different matter. The question is what you - the human with agency - do with the infringing work after you create it. You can't blame photoshop for creating a Warhol infringing work nor can you blame GPT for writing in the style of J.K. Rowling if you instruct it to do so.
    - cornholio 4y ago
      This argument is weak. If we agree that the production is infringing, then selling a machine that produces infringing works on demand is also infringing to the rights of the author. For example, if I sell a karaoke machine that comes with pre-recorded famous melodies without the original vocals (thus, derived works), I definitely cannot claim "only the agency of the users matter". No, even the on-demand production itself is an act of infringement. Regarding your fair use point: > add something new, with a further purpose or different character, and do not substitute for the original use of the work. This is a test that can be applied to the works produced, and I think that, by and large, it applies to most of them, they are sufficiently transformative to be seen as fair use, especially since they are produced and published, as you say, under the agency of a human user of the system. But we're talking here about the system as a whole, not a certain production. The ChatGPT model database is not a creative work (other that its source code), it's a binary compressed representation of the works used to train it, for the purpose of on-demand production of works that mimicry, to a varying, and sometimes strikingly infringing degree, the originals. There is no question such a machine competes with the originals in the market place, there is no real question it is a derivative work of the originals, that fully supply its artistic features and without which the machine could not utter a single intelligible sentence. Also, the "one word out of 1000" analogy defense does not apply, since a single isolated word is not a work of creation, while a certain shape, brush stroke or cromatic set are. AI does not create using disparate pixels of the originals, it uses entire creative features, more like publishing a book where each page or chapter is copied verbatim and adapted from other works, or if characters, plot devices and story structure are reused. These latter cases have long been recognized as plagiarism. So the legal question seems to be if mass-scale algorithmic remixing and derivation by a non-creative competitor is fair use. That strikes me as far outside the intended spirit of fair use and the balance it seeks to achieve between author protection and beneficial social progress.

shagie 4y ago

Your one sentence from one thousand works is likely seen as transformative. https://www.copyright.gov/fair-use/ https://www.copyright.gov/fair-use/ > Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. Creating a model from copyrighted works is likely sufficiently transformative to be non-infringing even if it is found to be a derivative work.

anotherman554 4y ago
"Creating a model from copyrighted works is likely sufficiently transformative to be non-infringing even if it is found to be a derivative work." Maybe, but one of the factors of fair use is whether it deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. If ChatGPD gets so good at writing J.K. Rowling novels that it hurts the sales of the next J.K. Rowling book, that's a strong argument against the use being fair, even if it is transformative. If J.K. Rowling signs an exclusive agreement with Google to train on J.K. Rowling novels, that's another factors that would suggest OpenAI's use is not fair, because she's shown OpenAI is hurting a potential market for J.K. Rowling selling the use of her novels to train A.I.
- shagie 4y ago
  But the model doesn't have any agency. GPT isn't spitting out novels in the style of J.K. Rowling and sending them to publishers - a human is. GPT being instructed to tell a Harry Potter story itself is no more infringing than a child asking a parent for a made up Harry Potter bed time story. They equally infringe and undermine new or potential markets for copyrighted work. The question is "what do you do with the material?" If a human took the output of GPT writing as J.K. Rowling or a parent took their collected Harry Potter bedtime stories - those are equally problematic. If I was to take a portrait of Marilyn Monroe and send it through a plugin called Warholize in Photoshop ( https://www.adobe.com/creativecloud/photography/hub/guides/create-andy-warhol-style-pop-art-photoshop-how-to https://www.adobe.com/creativecloud/photography/hub/guides/c... ) , it's not the plugin or photoshop that is infringing - it would be me, the human who created an infringing work. If I print it out and hang it on my wall, that didn't particularly impact on the income for the Warhol estate nor deprive them of new markets. If I print out copies of it and sell them - then that is a different matter. The question is what you - the human with agency - do with the infringing work after you create it. You can't blame photoshop for creating a Warhol infringing work nor can you blame GPT for writing in the style of J.K. Rowling if you instruct it to do so.
  - cornholio 4y ago
    This argument is weak. If we agree that the production is infringing, then selling a machine that produces infringing works on demand is also infringing to the rights of the author. For example, if I sell a karaoke machine that comes with pre-recorded famous melodies without the original vocals (thus, derived works), I definitely cannot claim "only the agency of the users matter". No, even the on-demand production itself is an act of infringement. Regarding your fair use point: > add something new, with a further purpose or different character, and do not substitute for the original use of the work. This is a test that can be applied to the works produced, and I think that, by and large, it applies to most of them, they are sufficiently transformative to be seen as fair use, especially since they are produced and published, as you say, under the agency of a human user of the system. But we're talking here about the system as a whole, not a certain production. The ChatGPT model database is not a creative work (other that its source code), it's a binary compressed representation of the works used to train it, for the purpose of on-demand production of works that mimicry, to a varying, and sometimes strikingly infringing degree, the originals. There is no question such a machine competes with the originals in the market place, there is no real question it is a derivative work of the originals, that fully supply its artistic features and without which the machine could not utter a single intelligible sentence. Also, the "one word out of 1000" analogy defense does not apply, since a single isolated word is not a work of creation, while a certain shape, brush stroke or cromatic set are. AI does not create using disparate pixels of the originals, it uses entire creative features, more like publishing a book where each page or chapter is copied verbatim and adapted from other works, or if characters, plot devices and story structure are reused. These latter cases have long been recognized as plagiarism. So the legal question seems to be if mass-scale algorithmic remixing and derivation by a non-creative competitor is fair use. That strikes me as far outside the intended spirit of fair use and the balance it seeks to achieve between author protection and beneficial social progress.