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You are perhaps conflating the model with its output. The output is the result of a human initiated action (for example, a prompt), that can result in anything

You are perhaps conflating the model with its output. The output is the result of a human initiated action (for example, a prompt), that can result in anything ranging from a completely new work, not resembling any in the training set, up to a verbatim reproduction of a training work. Depending on the specific circumstances, that output might be a sufficiently transformative derivation, an infringing copy, or a non-derivative, fully independent work. The model itself however is always a derivative work, it's an algorithmic representation of the training set, so it must abide by the license terms of that material. For example, a karaoke machine might include public domain songs and you could use it legally for public performances of those works. But if the machine also includes unlicensed copyrighted songs, then the machine maker is guilty of copyright infringement for those tracks, even if a buyer of the machine can choose a non-infringing work. The ability to produce infringing works is sufficient to taint is as a whole, even if some user might not like those tracks and prefer the public domain tracks. In the same way, an AI machine is tainted by unlicensed training data, even if it can be used in a non-infringing manner; the owner of the machine cannot operate it and offer its services with disregard to the ownership of the source material on which his machine is in fact based on. Conversely, even if some holder might grant the AI shop a license to use their material for training, that does not also automatically grant the users of the AI tool a license to create derivative works of those originals.

lucubratory 3y ago
I don't agree that a model is a derivative work, and I think a judge would likely agree with me. I think you need to be able to show those major copyrightable elements of the original work are actually present in the allegedly derivative work, something that is very non-trivial with even the most transparent of models like Stable Diffusion - scientists doing intensive analysis of the SD model were only able to find around a hundred instances of reproduced images from the source material out of several hundred thousand attempts. That said, it definitely would be copyright infringement to download a bunch of copyrighted material and actually use it in some way, for example to train a model. Luckily, in most jurisdictions it is recognised that this is the case and so governments have specifically carved out exceptions to copyright law for this process (known as text and data mining or TDM). This includes the UK, the EU, Japan, and China. In the US, there is no specific law addressing the issue yet, but many companies are doing it in the US (and have been doing it for many years) with the presumption of legality based on the Google v Author's Guild and Google v Perfect 10 rulings. Basically, they are acting under the assumption that it is fair use, which I think is a ~reasonable assumption and I think would be held up by the US Supreme Court if they wanted to take it.
williamcotton 3y ago
It’s more like a VCR than a karaoke machine in my opinion. Like a VCR it can be used for copyright infringement. Unlike a karaoke machine that has copyrighted material the entire point of purchasing the karaoke machine is to get copyrighted songs to sing. The VCR, like the LLM, has other uses, and if someone distributes infringing VCR cassettes they are liable and the manufacturer is not. VCRs being applicable because of Sony v Universal. https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive.... The Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs (referred to as VTRs in the case), cannot be liable for contributory infringement. Also, it can be argued that the LLM model is significantly transformative. https://en.wikipedia.org/wiki/Transformative_use https://en.wikipedia.org/wiki/Transformative_use In United States copyright law, transformative use or transformation is a type of fair use that builds on a copyrighted work in a different manner or for a different purpose from the original, and thus does not infringe its holder's copyright. In computer- and Internet-related works, the transformative characteristic of the later work is often that it provides the public with a benefit not previously available to it, which would otherwise remain unavailable. Which is what was argued in Perfect 10 v Google. https://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com,_Inc https://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com.... Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information, citing the precedent Kelly v. Arriba Soft Corporation. The court reached this conclusion despite the fact that Perfect 10 was attempting to market thumbnail images for cell phones, with the court quipping that the "potential harm to Perfect 10's market remains hypothetical." The court pointed out that Google made available to the public the new and highly beneficial function of "improving access to [pictorial] information on the Internet." This had the effect of recognizing that "search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody's sales." So an LLM is a tool that could be used to produce infringing material, like a VCR, and an LLM is a tool that does indeed copy infringing material, like Google Image search, but applies computationally expensive transformations used to generate newly existing functionality that has a valuable public benefit distinct from creating and distributing the original infringing copies. That new, visually non-infringing images could compete with the originals in a market is not the intent nor spirit of the clause related to market impact as that would imply that all paintings of a red circle have a market impact on all paintings of a blue circle where clearly the intent of copyright is to protect a concrete and subjective expression whose market value differs from image to image.

lucubratory 3y ago

I don't agree that a model is a derivative work, and I think a judge would likely agree with me. I think you need to be able to show those major copyrightable elements of the original work are actually present in the allegedly derivative work, something that is very non-trivial with even the most transparent of models like Stable Diffusion - scientists doing intensive analysis of the SD model were only able to find around a hundred instances of reproduced images from the source material out of several hundred thousand attempts. That said, it definitely would be copyright infringement to download a bunch of copyrighted material and actually use it in some way, for example to train a model. Luckily, in most jurisdictions it is recognised that this is the case and so governments have specifically carved out exceptions to copyright law for this process (known as text and data mining or TDM). This includes the UK, the EU, Japan, and China. In the US, there is no specific law addressing the issue yet, but many companies are doing it in the US (and have been doing it for many years) with the presumption of legality based on the Google v Author's Guild and Google v Perfect 10 rulings. Basically, they are acting under the assumption that it is fair use, which I think is a ~reasonable assumption and I think would be held up by the US Supreme Court if they wanted to take it.

williamcotton 3y ago

It’s more like a VCR than a karaoke machine in my opinion. Like a VCR it can be used for copyright infringement. Unlike a karaoke machine that has copyrighted material the entire point of purchasing the karaoke machine is to get copyrighted songs to sing. The VCR, like the LLM, has other uses, and if someone distributes infringing VCR cassettes they are liable and the manufacturer is not. VCRs being applicable because of Sony v Universal. https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive.... The Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs (referred to as VTRs in the case), cannot be liable for contributory infringement. Also, it can be argued that the LLM model is significantly transformative. https://en.wikipedia.org/wiki/Transformative_use https://en.wikipedia.org/wiki/Transformative_use In United States copyright law, transformative use or transformation is a type of fair use that builds on a copyrighted work in a different manner or for a different purpose from the original, and thus does not infringe its holder's copyright. In computer- and Internet-related works, the transformative characteristic of the later work is often that it provides the public with a benefit not previously available to it, which would otherwise remain unavailable. Which is what was argued in Perfect 10 v Google. https://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com,_Inc https://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com.... Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information, citing the precedent Kelly v. Arriba Soft Corporation. The court reached this conclusion despite the fact that Perfect 10 was attempting to market thumbnail images for cell phones, with the court quipping that the "potential harm to Perfect 10's market remains hypothetical." The court pointed out that Google made available to the public the new and highly beneficial function of "improving access to [pictorial] information on the Internet." This had the effect of recognizing that "search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody's sales." So an LLM is a tool that could be used to produce infringing material, like a VCR, and an LLM is a tool that does indeed copy infringing material, like Google Image search, but applies computationally expensive transformations used to generate newly existing functionality that has a valuable public benefit distinct from creating and distributing the original infringing copies. That new, visually non-infringing images could compete with the originals in a market is not the intent nor spirit of the clause related to market impact as that would imply that all paintings of a red circle have a market impact on all paintings of a blue circle where clearly the intent of copyright is to protect a concrete and subjective expression whose market value differs from image to image.