7 ms·

Fair use. Licenses like that are enforced under copyright, if the use is not subject to copyright, the license terms are irrelevant.

by andy99 3y ago

__loam 3y ago
We should note that whether AI training is actually fair use has yet to be tested in court. In particular, there's some wording in fair use about the effect on the market for the original and whether the derivative work can substitute for the original that I think a lot of programmers who blindly say this is fair use ignore. I am not a lawyer though.
croes 3y ago
Making money from the trained model isn't fair use anymore.
- ipsum2 3y ago
  No, fair use does not preclude making money.
  - CharlesW 3y ago
    That's an over-simplication. Fair use does not necessarily preclude the user from making money, but it definitely can if that action diminishes the value of the copied work.
  - croes 3y ago
    If we talk about the OpenAI magnitude of money it's definitely precluded, that's way beyond fair.
    - ipsum2 3y ago
      Lol what? That's not how any of this works.
      - croes 3y ago
        >Commercial use does not automatically make the use copyright infringement, but it is an important deciding factor. https://saltiellawgroup.com/2021/10/%E2%80%8B%E2%80%8Bcan-you-profit-from-copyright-fair-use-what-creators-should-know/ https://saltiellawgroup.com/2021/10/%E2%80%8B%E2%80%8Bcan-yo...
  - edgyquant 3y ago
    Isn’t this only the case if you give credit though?
- colechristensen 3y ago
  That has to be legislated or written into law in the courts.
spookie 3y ago
I'm not sure if it applies here. Midjourney's use intends to substitute the artists' work, and is commercial.
- dtrailin 3y ago
  Unless it's a 1 for 1 replica I don't see how it's a substitute in the copyright sense.
  - munk-a 3y ago
    We already have laws covering close derivatives - in this case it might not be clear who is the inspiration but there is no novel creativity... everything these networks produce is derived from artists - there is no added novelty.
    - Workaccount2 3y ago
      Imagine how rich you would be if you were the first artist to make a red health bar in a video game.
      - andy99 3y ago
        I think that's exactly the sort of flawed analysis these copyright trolls do. They see something they never would have had a hand in and count it as "theirs", and then greed kicks in. It's like the old MPAA/RIAA calculations of lost revenue that assume someone would have bought a CD if they didn't download a song. Only worse because at least in the downloading case, they are a 1:1 substitute. In almost all cases I'd guess that artists whose style is being copied by many genAI users are getting way more exposure than in some alternate universe where midjourney didn't exist. But nobody looks at it that way, they just see somebody else making profit and think they deserve some.
  - jazzyjackson 3y ago
    it's derived from the original and competes with the original if it was parody or commentary or otherwise found a new market, it might be allowed under fair use, but the fourth factor of fair use concerns the effect on the market value of the original
ska 3y ago
Fair use is a defence you can use when you infringe copyright [edit for clarity] or in other words the action you take would otherwise infringe. It's not fair use because you want it to be, and it's not at all legally clear if this defence is valid in the case of AI training. But it's not clear it isn't, either. This is basically what all the noise and PR money is about, currently, in hope that shaping the narrative will shape the legal decisions.
- munchler 3y ago
  Fair use is not copyright infringement! It’s a limitation placed on copyright to balance the interests of copyright holders with the public interest.
  - kevingadd 3y ago
    Fair use is a legal defense that requires you to pass multiple tests. It's not a "thing" that you can just assert all AI training is and expect people to believe you.
  - ska 3y ago
    Of course this all depends on jurisdiction, but e.g. in the US for example fair use does not show up [oops, see note] in the limitations and exceptions in the copyright definition (like e.g. government use does), but relies on case law, the "fair use doctrine". This means quite literally it is a framework for understanding the defence of a particular use based on precedent: the defendant(s) argued it. It's a bit of a quibble to differentiate between allowable infringement or exception, here, so i've edited original. [note: 0xcde4c3db points out correctly that it does actually show up since 1976, but in a way the defers much of the definition back to case law, so same effect]
    - munchler 3y ago
      I think it makes a difference, because it shifts the burden of proof. If fair use is a kind of infringement, then it’s up to the “infringer” to prove fair use. I think that’s ethically and legally backwards: the copyright holder should have to prove that the use was not fair.
KaiserPro 3y ago
I don't think its fair use. https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ https://fairuse.stanford.edu/overview/fair-use/what-is-fair-... There are complications, but google can use thumbnails because essentailly they are used to "review" the website. Has google sampled and hosted the whole image on their own website and made more iamges in the style of say mickey mouse, they would have been taken to town by the owners. This is why there are no commercial movies on youtube (without an explicit agreement) and why DCMA takedowns exist.
- encomiast 3y ago
  There's really no reason for anyone to be confident that this is or is not fair use. The law around fair use is a quagmire of conflicting ideas, cases, and opinions and most of the law is in the form of precedents since the letter of the law is so vague. One only needs to read the Supreme Court decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. In this case, it was found to not be fair use, but with a forceful dissent from Elena Kagan. And this is just a straight-up use of a photograph / art-piece. Add technology to the mix and things get really messy quickly.
  - KaiserPro 3y ago
    in that case, the source image was actually licensed: "Years later, Goldsmith granted a limited license to Vanity Fair for use of one of her Prince photos as an “artist reference for an illustration.” The terms of the license included that the use would be for “one time” only. Vanity Fair hired Warhol to create the illustration, and Warhol used Goldsmith’s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. "
danShumway 3y ago
So the somewhat necessary followup question: if Midjourney or ChatGPT includes a license in front of its model weights or access to its model that forbids using those weights or output from its model to create a competitor, is it fair use to ignore that license? In both cases, we're relying on copyright. The companies are saying that you can access the models under a license. It's not too hard to circumvent that license or get access through a third party or separate service: but doing so would obviously be seen as deliberate circumvention. We can easily compare that to an artist putting up a click-through in front of a gallery that says that by clicking 'agree' you agree not to use their work for training. And in fact, it's literally the same restriction in both cases: OpenAI maintains that they can use copyright to enforce that people accessing their model avoid using their model to train AIs. Paradoxically, they also maintain that artists can not use copyright to block people accessing their images from using those images to train AIs. Facebook has released model weights with licenses that restrict how those model weights are used. But I can get those models without clicking 'agree' on that license agreement. They're mirrored all over the place. We'll see what courts say, but Facebook's public argument is that their license doesn't stop applying if I download their software from a mirror. So I find it hard to believe that Facebook honestly believes in a fair use argument if they also claim that the same fair use argument doesn't apply to their own copyrighted material that they've released online (assuming that model weights can even be copyrighted in the first place). This is one of my biggest issues with the fair use argument -- it's not that there's nothing convincing about it, in a vacuum I'd very likely agree with it. I don't think that licenses should allow completely arbitrary restrictions. But I also can't ignore that the vast majority of companies making this argument are making it extremely inconsistently. They know that their business models literally don't work if competitors figure out ways to use their services to rapidly produce competing models. If another company comes up with a training method to rapidly replicate model weights or to augment existing models using their output, none of these companies will be OK with that. None of these companies believe that fair use invalidates license terms when it comes to their own IP.
- andy99 3y ago
  I think companies like openAI, meta and midjourney (if they say you can't train on output) are hypocrites, and probably have no standing to enforce some of the restrictions they try and make. That doesn't change fair use. There are also many truly open source models that explicitly give the users freedom to use them as they want, and I'd prefer more providers license their's like that, ie Apache 2.0 or MIT.

Fair use. Licenses like that are enforced under copyright, if the use is not subject to copyright, the license terms are irrelevant.

by andy99 3y ago

Fair use. Licenses like that are enforced under copyright, if the use is not subject to copyright, the license terms are irrelevant.

__loam 3y ago

We should note that whether AI training is actually fair use has yet to be tested in court. In particular, there's some wording in fair use about the effect on the market for the original and whether the derivative work can substitute for the original that I think a lot of programmers who blindly say this is fair use ignore. I am not a lawyer though.

croes 3y ago

Making money from the trained model isn't fair use anymore.

ipsum2 3y ago
No, fair use does not preclude making money.
- CharlesW 3y ago
  That's an over-simplication. Fair use does not necessarily preclude the user from making money, but it definitely can if that action diminishes the value of the copied work.
- croes 3y ago
  If we talk about the OpenAI magnitude of money it's definitely precluded, that's way beyond fair.
  - ipsum2 3y ago
    Lol what? That's not how any of this works.
    - croes 3y ago
      >Commercial use does not automatically make the use copyright infringement, but it is an important deciding factor. https://saltiellawgroup.com/2021/10/%E2%80%8B%E2%80%8Bcan-you-profit-from-copyright-fair-use-what-creators-should-know/ https://saltiellawgroup.com/2021/10/%E2%80%8B%E2%80%8Bcan-yo...
- edgyquant 3y ago
  Isn’t this only the case if you give credit though?
colechristensen 3y ago
That has to be legislated or written into law in the courts.

spookie 3y ago

I'm not sure if it applies here. Midjourney's use intends to substitute the artists' work, and is commercial.

dtrailin 3y ago
Unless it's a 1 for 1 replica I don't see how it's a substitute in the copyright sense.
- munk-a 3y ago
  We already have laws covering close derivatives - in this case it might not be clear who is the inspiration but there is no novel creativity... everything these networks produce is derived from artists - there is no added novelty.
  - Workaccount2 3y ago
    Imagine how rich you would be if you were the first artist to make a red health bar in a video game.
    - andy99 3y ago
      I think that's exactly the sort of flawed analysis these copyright trolls do. They see something they never would have had a hand in and count it as "theirs", and then greed kicks in. It's like the old MPAA/RIAA calculations of lost revenue that assume someone would have bought a CD if they didn't download a song. Only worse because at least in the downloading case, they are a 1:1 substitute. In almost all cases I'd guess that artists whose style is being copied by many genAI users are getting way more exposure than in some alternate universe where midjourney didn't exist. But nobody looks at it that way, they just see somebody else making profit and think they deserve some.
- jazzyjackson 3y ago
  it's derived from the original and competes with the original if it was parody or commentary or otherwise found a new market, it might be allowed under fair use, but the fourth factor of fair use concerns the effect on the market value of the original

ska 3y ago

Fair use is a defence you can use when you infringe copyright [edit for clarity] or in other words the action you take would otherwise infringe. It's not fair use because you want it to be, and it's not at all legally clear if this defence is valid in the case of AI training. But it's not clear it isn't, either. This is basically what all the noise and PR money is about, currently, in hope that shaping the narrative will shape the legal decisions.

munchler 3y ago
Fair use is not copyright infringement! It’s a limitation placed on copyright to balance the interests of copyright holders with the public interest.
- kevingadd 3y ago
  Fair use is a legal defense that requires you to pass multiple tests. It's not a "thing" that you can just assert all AI training is and expect people to believe you.
- ska 3y ago
  Of course this all depends on jurisdiction, but e.g. in the US for example fair use does not show up [oops, see note] in the limitations and exceptions in the copyright definition (like e.g. government use does), but relies on case law, the "fair use doctrine". This means quite literally it is a framework for understanding the defence of a particular use based on precedent: the defendant(s) argued it. It's a bit of a quibble to differentiate between allowable infringement or exception, here, so i've edited original. [note: 0xcde4c3db points out correctly that it does actually show up since 1976, but in a way the defers much of the definition back to case law, so same effect]
  - munchler 3y ago
    I think it makes a difference, because it shifts the burden of proof. If fair use is a kind of infringement, then it’s up to the “infringer” to prove fair use. I think that’s ethically and legally backwards: the copyright holder should have to prove that the use was not fair.

KaiserPro 3y ago

I don't think its fair use. https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ https://fairuse.stanford.edu/overview/fair-use/what-is-fair-... There are complications, but google can use thumbnails because essentailly they are used to "review" the website. Has google sampled and hosted the whole image on their own website and made more iamges in the style of say mickey mouse, they would have been taken to town by the owners. This is why there are no commercial movies on youtube (without an explicit agreement) and why DCMA takedowns exist.

encomiast 3y ago
There's really no reason for anyone to be confident that this is or is not fair use. The law around fair use is a quagmire of conflicting ideas, cases, and opinions and most of the law is in the form of precedents since the letter of the law is so vague. One only needs to read the Supreme Court decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. In this case, it was found to not be fair use, but with a forceful dissent from Elena Kagan. And this is just a straight-up use of a photograph / art-piece. Add technology to the mix and things get really messy quickly.
- KaiserPro 3y ago
  in that case, the source image was actually licensed: "Years later, Goldsmith granted a limited license to Vanity Fair for use of one of her Prince photos as an “artist reference for an illustration.” The terms of the license included that the use would be for “one time” only. Vanity Fair hired Warhol to create the illustration, and Warhol used Goldsmith’s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. "

danShumway 3y ago

So the somewhat necessary followup question: if Midjourney or ChatGPT includes a license in front of its model weights or access to its model that forbids using those weights or output from its model to create a competitor, is it fair use to ignore that license? In both cases, we're relying on copyright. The companies are saying that you can access the models under a license. It's not too hard to circumvent that license or get access through a third party or separate service: but doing so would obviously be seen as deliberate circumvention. We can easily compare that to an artist putting up a click-through in front of a gallery that says that by clicking 'agree' you agree not to use their work for training. And in fact, it's literally the same restriction in both cases: OpenAI maintains that they can use copyright to enforce that people accessing their model avoid using their model to train AIs. Paradoxically, they also maintain that artists can not use copyright to block people accessing their images from using those images to train AIs. Facebook has released model weights with licenses that restrict how those model weights are used. But I can get those models without clicking 'agree' on that license agreement. They're mirrored all over the place. We'll see what courts say, but Facebook's public argument is that their license doesn't stop applying if I download their software from a mirror. So I find it hard to believe that Facebook honestly believes in a fair use argument if they also claim that the same fair use argument doesn't apply to their own copyrighted material that they've released online (assuming that model weights can even be copyrighted in the first place). This is one of my biggest issues with the fair use argument -- it's not that there's nothing convincing about it, in a vacuum I'd very likely agree with it. I don't think that licenses should allow completely arbitrary restrictions. But I also can't ignore that the vast majority of companies making this argument are making it extremely inconsistently. They know that their business models literally don't work if competitors figure out ways to use their services to rapidly produce competing models. If another company comes up with a training method to rapidly replicate model weights or to augment existing models using their output, none of these companies will be OK with that. None of these companies believe that fair use invalidates license terms when it comes to their own IP.

andy99 3y ago
I think companies like openAI, meta and midjourney (if they say you can't train on output) are hypocrites, and probably have no standing to enforce some of the restrictions they try and make. That doesn't change fair use. There are also many truly open source models that explicitly give the users freedom to use them as they want, and I'd prefer more providers license their's like that, ie Apache 2.0 or MIT.