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You don’t need a fair use exemption for transient copies in service of licensed or fair uses. Computers and networks have been around a long time. These issues

You don’t need a fair use exemption for transient copies in service of licensed or fair uses. Computers and networks have been around a long time. These issues have been given a good workout.

mike_hearn 3y ago
But the copy used during training is itself transient, so all this boils down really to the question of whether training a machine is fair use. Which can't be answered here exactly because the concept of fair use is deliberately vague, so this will boil down to a lawsuit and probably go to the Supremes. The USA will work something out that's reasonable as they always do and, lacking AI companies and often the concept of fair use to begin with, the rest of the world will never work out the necessary case law and fall even further behind. Possible exception: UK, which does have some significant LLM companies and also fair use law, albeit as is often the case with the UK these firms are US/UK hybrids with significant presence in both countries and the legal HQ is usually in the USA.
- bandrami 3y ago
  It's not even a question of "fair use" because OpenAI isn't providing anybody a copy. Probability models really just aren't copyrightable to begin with.
  - mike_hearn 3y ago
    Fair use also covers generating derived works, and arguably the AI is a derived work.
    - bandrami 3y ago
      That would be hard to argue. You can't point to a sequence of words that's in the original that was copied into the OpenAI output.
      - mike_hearn 3y ago
        That's not how derivative works are defined. For example, translations to other languages or extensive summarizations (condensations) count as derivative works even though no words are directly copied.
  - dragonwriter 3y ago
    > It’s not even a question of “fair use” because OpenAI isn’t providing anybody a copy “Fair Use” can apply to essentially any of the exclusive rights under copyright, including making (with or without distributing) a copy or derivative work. > Probability models really just aren’t copyrightable to begin with. “Probability models” that are built from copyrightable works either: (1) have a sufficient human creative input to be copyrightable on its own (in which caee it still may infringe copyrights applicable to its source material as a derivative work), or (2) do not have a sufficient human creative input to be copyrightable, and thus are a form of mechanical copy of their data from which they are developed (which, to the extent it either is, in aggregate, a copyrighted work, and/or contains copies of other copyrighted works, is protected by one or more copyrights, which do not cease to apply to the mechanical copy, and which an unlicensed mechanical copy would violate unless it fell into an exception like Fair Use.)
    - bandrami 3y ago
      But OpenAI is neither copying nor deriving a work. Style (which can be described as a probability model) is not copyrightable. You're halfway there with #2. The output is not copyrightable, but unless you can actually point to a sequence of words from the original it can't be infringing.
      - dragonwriter 3y ago
        > But OpenAI is neither copying nor deriving a work. They absolutely are copying in the course of training the model, and they are doing something that often looks a lot like copying when producing output with the model. > Style (which can be described as a probability model) is not copyrightable. Style is not all that can be described in an LLM's "probability model", otherwise LLM models would never be able to reproduce content from the training set, which they do. > The output is not copyrightable, but unless you can actually point to a sequence of words from the original it can’t be infringing. While verbatim copying (“a sequence of words from the original”) is infringing, mechanical copying with a mechanical substitution filter (even a wickedly complex one) is also copying, and violates copyright. And ChatGPT is quite capable of producing verbatim text from its training set.
dragonwriter 3y ago
> You don’t need a fair use exemption for transient copies in service of licensed or fair uses. The transient copy isn’t for a licensed use, and whether it is a Fair Use is specifically the subject of debate. So this really is basically an admission that but for the potential applicability of Fair Use, the use of the copyrighted mmaterial in training is a violation of copyright. Also, even if the training is fair use, that doesn’t mean that the copies of the source material produced by OpenAI and distributed to their customers using the model are fair use. Just becaue making the tool is a transformative fair use doesn’t mean using the tool to generate copies of the material which was used to train it, which are significantly less trandormative than the model itself, are Fair Use. (And the fact that one of the functions that the model is used for is this commercial, for profit by the maker of the model, copying of the source material is – as much as I believe AI model training on its own is quite likely to generally be fair use – an argument against the model training being fair use in this csase.) > Computers and networks have been around a long time. True, and commercially producing and delivery copies of copyrighted works in a manner which substitutes for the original work in the marketplace, no matter what intermediate steps go into doing that, and no matter that computers or networks are used in those intermediate steps, is pretty much the clearest case of violation of copyright you can get. > These issues have been given a good workout. Some of them have, some of them have not. Whether and in what conditions training an AI on source material that may be subject in aggregate to a compilation copyright by someone else, and which consists further of individual works that have their own copyrights, might be “fair use” is not one of the issues that have been given a good workout. Neither – because producing predictive models in that way has not previously been common – has whether, unlike other intermediate tool use, using such a model in the course of doing what would otherwise be an infringement by producing a copy of specific copyright-protected works, commercially, for a customer at their request, is no longer a violation because the use of the model somehow isolates it from liability,

You don’t need a fair use exemption for transient copies in service of licensed or fair uses. Computers and networks have been around a long time. These issues have been given a good workout.

mike_hearn 3y ago

But the copy used during training is itself transient, so all this boils down really to the question of whether training a machine is fair use. Which can't be answered here exactly because the concept of fair use is deliberately vague, so this will boil down to a lawsuit and probably go to the Supremes. The USA will work something out that's reasonable as they always do and, lacking AI companies and often the concept of fair use to begin with, the rest of the world will never work out the necessary case law and fall even further behind. Possible exception: UK, which does have some significant LLM companies and also fair use law, albeit as is often the case with the UK these firms are US/UK hybrids with significant presence in both countries and the legal HQ is usually in the USA.

bandrami 3y ago
It's not even a question of "fair use" because OpenAI isn't providing anybody a copy. Probability models really just aren't copyrightable to begin with.
- mike_hearn 3y ago
  Fair use also covers generating derived works, and arguably the AI is a derived work.
  - bandrami 3y ago
    That would be hard to argue. You can't point to a sequence of words that's in the original that was copied into the OpenAI output.
    - mike_hearn 3y ago
      That's not how derivative works are defined. For example, translations to other languages or extensive summarizations (condensations) count as derivative works even though no words are directly copied.
- dragonwriter 3y ago
  > It’s not even a question of “fair use” because OpenAI isn’t providing anybody a copy “Fair Use” can apply to essentially any of the exclusive rights under copyright, including making (with or without distributing) a copy or derivative work. > Probability models really just aren’t copyrightable to begin with. “Probability models” that are built from copyrightable works either: (1) have a sufficient human creative input to be copyrightable on its own (in which caee it still may infringe copyrights applicable to its source material as a derivative work), or (2) do not have a sufficient human creative input to be copyrightable, and thus are a form of mechanical copy of their data from which they are developed (which, to the extent it either is, in aggregate, a copyrighted work, and/or contains copies of other copyrighted works, is protected by one or more copyrights, which do not cease to apply to the mechanical copy, and which an unlicensed mechanical copy would violate unless it fell into an exception like Fair Use.)
  - bandrami 3y ago
    But OpenAI is neither copying nor deriving a work. Style (which can be described as a probability model) is not copyrightable. You're halfway there with #2. The output is not copyrightable, but unless you can actually point to a sequence of words from the original it can't be infringing.
    - dragonwriter 3y ago
      > But OpenAI is neither copying nor deriving a work. They absolutely are copying in the course of training the model, and they are doing something that often looks a lot like copying when producing output with the model. > Style (which can be described as a probability model) is not copyrightable. Style is not all that can be described in an LLM's "probability model", otherwise LLM models would never be able to reproduce content from the training set, which they do. > The output is not copyrightable, but unless you can actually point to a sequence of words from the original it can’t be infringing. While verbatim copying (“a sequence of words from the original”) is infringing, mechanical copying with a mechanical substitution filter (even a wickedly complex one) is also copying, and violates copyright. And ChatGPT is quite capable of producing verbatim text from its training set.

dragonwriter 3y ago

> You don’t need a fair use exemption for transient copies in service of licensed or fair uses. The transient copy isn’t for a licensed use, and whether it is a Fair Use is specifically the subject of debate. So this really is basically an admission that but for the potential applicability of Fair Use, the use of the copyrighted mmaterial in training is a violation of copyright. Also, even if the training is fair use, that doesn’t mean that the copies of the source material produced by OpenAI and distributed to their customers using the model are fair use. Just becaue making the tool is a transformative fair use doesn’t mean using the tool to generate copies of the material which was used to train it, which are significantly less trandormative than the model itself, are Fair Use. (And the fact that one of the functions that the model is used for is this commercial, for profit by the maker of the model, copying of the source material is – as much as I believe AI model training on its own is quite likely to generally be fair use – an argument against the model training being fair use in this csase.) > Computers and networks have been around a long time. True, and commercially producing and delivery copies of copyrighted works in a manner which substitutes for the original work in the marketplace, no matter what intermediate steps go into doing that, and no matter that computers or networks are used in those intermediate steps, is pretty much the clearest case of violation of copyright you can get. > These issues have been given a good workout. Some of them have, some of them have not. Whether and in what conditions training an AI on source material that may be subject in aggregate to a compilation copyright by someone else, and which consists further of individual works that have their own copyrights, might be “fair use” is not one of the issues that have been given a good workout. Neither – because producing predictive models in that way has not previously been common – has whether, unlike other intermediate tool use, using such a model in the course of doing what would otherwise be an infringement by producing a copy of specific copyright-protected works, commercially, for a customer at their request, is no longer a violation because the use of the model somehow isolates it from liability,