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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

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.

cornholio 4y ago
> 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. To pursue this point further, I have asked ChatGPT to "list the lyrics of a famous Madonna song": Sure, here are the lyrics of "Like a Prayer" by Madonna, which was released in 1989: [Verse 1] Life is a mystery Everyone must stand alone I hear you call my name And it feels like home [Chorus] When you call my name It's like a little prayer I'm down on my knees I wanna take you there ... (the entire lyrics of the song follow) I think it would be very hard to argue that this model does not embed verbatim copies of the original work, but somehow reconstituted those lyrics via a parallel construction where the cultural impact of Madonna's lyrics were grasped from other fair use sources. Even in that case, it's still a word for word reproduction of the original, therefore not fair use. Therefore, the entire model or service is infringing - even if some of its productions may not be. The ability of the model to produce copyrighted works is just a proof of the degree on which it relies on the originals; even if that ability would be blocked or somehow filtered by a plagiarism detector in a later model of Chat GPT, it would change nothing to the fundamental nature of the machine: an automated means of generating derivative works without artistic or scientific agency.
- shagie 4y ago
  > it would change nothing to the fundamental nature of the machine: an automated means of generating derivative works without artistic or scientific agency. So is a Xerox machine (or Cannon copier or 'MFD') The issue there is not "if it can" or even "if it is designed to do so" but rather "can it be used in a way that is not infringing" and "if there is an infringement from its use, the human doing that is the one liable." And yet, there are non-infringing uses of the Xerox machine. Even if one was to accept the position that the only thing that GPT can produce is derivative works it doesn't rule out that there are transformative and non-infringing uses of it.
  - cornholio 4y ago
    No xerox machine comes with an embedded copy of Harry Potter that can be reproduced at the push off a button. That's the crux of the issue, that you can't separate the training data from the derivation ability. If it's just an AI algorithm that could, when trained in a certain way, produce derivative infringing works, nobody would object to it.

cornholio 4y ago

> 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. To pursue this point further, I have asked ChatGPT to "list the lyrics of a famous Madonna song": Sure, here are the lyrics of "Like a Prayer" by Madonna, which was released in 1989: [Verse 1] Life is a mystery Everyone must stand alone I hear you call my name And it feels like home [Chorus] When you call my name It's like a little prayer I'm down on my knees I wanna take you there ... (the entire lyrics of the song follow) I think it would be very hard to argue that this model does not embed verbatim copies of the original work, but somehow reconstituted those lyrics via a parallel construction where the cultural impact of Madonna's lyrics were grasped from other fair use sources. Even in that case, it's still a word for word reproduction of the original, therefore not fair use. Therefore, the entire model or service is infringing - even if some of its productions may not be. The ability of the model to produce copyrighted works is just a proof of the degree on which it relies on the originals; even if that ability would be blocked or somehow filtered by a plagiarism detector in a later model of Chat GPT, it would change nothing to the fundamental nature of the machine: an automated means of generating derivative works without artistic or scientific agency.

shagie 4y ago
> it would change nothing to the fundamental nature of the machine: an automated means of generating derivative works without artistic or scientific agency. So is a Xerox machine (or Cannon copier or 'MFD') The issue there is not "if it can" or even "if it is designed to do so" but rather "can it be used in a way that is not infringing" and "if there is an infringement from its use, the human doing that is the one liable." And yet, there are non-infringing uses of the Xerox machine. Even if one was to accept the position that the only thing that GPT can produce is derivative works it doesn't rule out that there are transformative and non-infringing uses of it.
- cornholio 4y ago
  No xerox machine comes with an embedded copy of Harry Potter that can be reproduced at the push off a button. That's the crux of the issue, that you can't separate the training data from the derivation ability. If it's just an AI algorithm that could, when trained in a certain way, produce derivative infringing works, nobody would object to it.