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> back to the original articulation of fair use as a Constitutional limit on copyright law stemming from the First Amendment protection of freedom of speech and

> back to the original articulation of fair use as a Constitutional limit on copyright law stemming from the First Amendment protection of freedom of speech and press, It's a bit weird to argue that freedom of speech and press somehow guarantees a fair use right to train AI models. If that is the foundation of fair use, then it shouldn't apply. Edit: I think I can clarify what I mean. Fair use protects human "speech" even if it's partially a copy of someone else's speech. There's no reason the same rule should apply to a technological device that isn't speech.

dragonwriter 3y ago
> It's a bit weird to argue that freedom of speech and press somehow guarantees a fair use right to train AI models Most specific fair use applications would seem weird as direct applications of the First Amendment protections, nevertheless, that there is a broad space defined by the factors set out as the fair use factors which rest on those principles and into which the restrictions imposed under copyright law cannot be applied is well-established. This flows from the fact that everything copyright law controls is on some level speech or press acts, or precursors to them (creating AI models is a precursor to publishing them) and that therefore the copyright power is read narrowly and its purpose clause read strictly, by similar constitutional logic to the application of strict scrutiny to government acts affecting fundamental rights. The fair use factors are specifically factors which either relate to the most sensitive areas of expression or to the boundaries of the purpose of the copyright power (the purpose and nature factor being one of the trickier ones because it involves both.)
- leereeves 3y ago
  But you're thinking about this like a lawyer, based on existing policy and precedent. Ultimately, this will be decided by the Supreme Court or Congress, two bodies not bound by past decisions. And I doubt either institution will consider an argument that an AI model is a form of speech. Fair use will be reevaluated for the age of AI.

dragonwriter 3y ago

> It's a bit weird to argue that freedom of speech and press somehow guarantees a fair use right to train AI models Most specific fair use applications would seem weird as direct applications of the First Amendment protections, nevertheless, that there is a broad space defined by the factors set out as the fair use factors which rest on those principles and into which the restrictions imposed under copyright law cannot be applied is well-established. This flows from the fact that everything copyright law controls is on some level speech or press acts, or precursors to them (creating AI models is a precursor to publishing them) and that therefore the copyright power is read narrowly and its purpose clause read strictly, by similar constitutional logic to the application of strict scrutiny to government acts affecting fundamental rights. The fair use factors are specifically factors which either relate to the most sensitive areas of expression or to the boundaries of the purpose of the copyright power (the purpose and nature factor being one of the trickier ones because it involves both.)

leereeves 3y ago
But you're thinking about this like a lawyer, based on existing policy and precedent. Ultimately, this will be decided by the Supreme Court or Congress, two bodies not bound by past decisions. And I doubt either institution will consider an argument that an AI model is a form of speech. Fair use will be reevaluated for the age of AI.