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> Fair use was intended for things like reviews, commentary, education, remixing, non-commercial use, and many other things "many other things" has included, f

by Ukv 3y ago

> Fair use was intended for things like reviews, commentary, education, remixing, non-commercial use, and many other things "many other things" has included, for example, Google Books scanning millions of in-copyright books, storing internally them in full, and making snippets available. The basis for copyright itself is to "promote the progress of science and useful arts". For that reason a key consideration of fair use, which you've skipped entirely, is the transformative nature of the new work. As in Campbell v. Acuff-Rose Music: "The more transformative the new work, the less will be the significance of other factors", defined as "whether the new work merely 'supersede[s] the objects' of the original creation [...] or instead adds something new". > "How much of the work will you use?" - All of it For the substantiality factor, courts make the distinction between intermediate copying and what is ultimately made available to the public. As in Sega v. Accolade: "Accolade, a commercial competitor of Sega, engaged in wholesale copying of Sega's copyrighted code as a preliminary step in the development of a competing product" yet "where the ultimate (as opposed to direct) use is as limited as it was here, the factor is of very little weight". Or as in Authors Guild v. Google: “verbatim intermediate copying has consistently been upheld as fair use if the copy is ‘not reveal[ed] . . . to the public.’” The factor also takes into account whether the copying was necessary for the purpose. As in Kelly v. Arriba Soft: "If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her" While there are still cases of overfitting resulting in generated outputs overly similar to training data, I think it's more favorable to AI than simply "it trained on everything, so this factor is maximally against fair use". > Directly competes with the original, killing or devaluing large parts of it The factor is specifically the effect of the use upon the work - not the extent to which your work would be devalued even if it had not been trained on your work.

TheOtherHobbes 3y ago
None of those arguments make sense. The output of AI absolutely does supersede the objects of the original creation. If it didn't, artists wouldn't care that they were no longer able to make a living. Substantiality of code does not apply to substantiality of style. What's being copied is look and feel, which is very much protected by copyright. The copying clearly is necessary for the purpose. No copying, no model. The fact that the copying is then compressed after ingestion doesn't change the fact that it's necessary for the modelling process. Last point - see first point. IANAL, but if I was a lawyer I'd be referring back to look and feel cases. It's the essence of an artist's look and feel that's being duplicated and used for commercial gain without a license. That's true whether it's one artist - which it can be, with added training - or thousands. Essentially what MJ etc do is curate a library of looks and feels, and charge money for access. It's a little more subtle than copying fixed objects, but the principle remains the same - original work is being copied and resold.
- Ukv 3y ago
  > None of those arguments make sense. The output of AI absolutely does supersede the objects of the original creation. If it didn't, artists wouldn't care that they were no longer able to make a living. The question for transformative nature is whether it merely supersedes or instead adds something new. E.G: Google translate was trained on books/documents translated by human translators and may in part displace that need, but adds new value in on-demand translation of arbitrary text - which the static works it was trained on did not provide. > Substantiality of code does not apply to substantiality of style. I'm not certain what you're saying here. > The copying clearly is necessary for the purpose. No copying, no model. Which, for the substantiality factor, works in favor of the model developers. > It's the essence of an artist's look and feel that's being duplicated and used for commercial gain without a license. Copyright protects works fixed in a tangible medium, not ideas in someone's head. It would protect a work's look/appearance (which can be an issue for AI when overfitting causes outputs that are substantially similar to a protected work), but not style or "an artist's look and feel".
- JAlexoid 3y ago
  > What's being copied is _look and feel_, which is very much protected by copyright. If that were the case, no one would be able to paint any cubist paintings. (Picasso estate would own the copyright, to this day) It's not that clear cut, there are a lot of nuances.
  - UncleEntity 3y ago
    Ironically, Picasso was notorious for copying other artist's 'look and feel'...
JoshTriplett 3y ago
> "many other things" has included, for example, Google Books scanning millions of in-copyright books, storing internally them in full, and making snippets available. That succeeds on a different part of the four-factor test, the degree to which it competes with / affects the market for the original. Google Books is not automatically producing new books derived from their copies that compete with the original books.
- Ukv 3y ago
  > That succeeds on a different part of the four-factor test, the degree to which it competes with / affects the market for the original It satisfied multiple parts of the four-factor test. It was found satisfy the first factor due to being "highly transformative", the second factor was considered not dispositive is isolation and favoring Google when combined with its transformative purpose, and it satisfied the third factor as the usage was "necessary to achieve that purpose" - with the court making the distinction between what was copied (lots) and what is revealed to the public (limited snippets). As you had all factors as "maximally against" fair use, do you believe that AI is significantly less transformative than Google Books? I'd say even in cases where the output is the same format as the content it was trained on, like Google Translate, it's still generally highly transformative. > the degree to which it competes with Specifically, to be pedantic, it's the effect of the use/copying of the original copyrighted work.

by Ukv 3y ago

TheOtherHobbes 3y ago

None of those arguments make sense. The output of AI absolutely does supersede the objects of the original creation. If it didn't, artists wouldn't care that they were no longer able to make a living. Substantiality of code does not apply to substantiality of style. What's being copied is look and feel, which is very much protected by copyright. The copying clearly is necessary for the purpose. No copying, no model. The fact that the copying is then compressed after ingestion doesn't change the fact that it's necessary for the modelling process. Last point - see first point. IANAL, but if I was a lawyer I'd be referring back to look and feel cases. It's the essence of an artist's look and feel that's being duplicated and used for commercial gain without a license. That's true whether it's one artist - which it can be, with added training - or thousands. Essentially what MJ etc do is curate a library of looks and feels, and charge money for access. It's a little more subtle than copying fixed objects, but the principle remains the same - original work is being copied and resold.

Ukv 3y ago
> None of those arguments make sense. The output of AI absolutely does supersede the objects of the original creation. If it didn't, artists wouldn't care that they were no longer able to make a living. The question for transformative nature is whether it merely supersedes or instead adds something new. E.G: Google translate was trained on books/documents translated by human translators and may in part displace that need, but adds new value in on-demand translation of arbitrary text - which the static works it was trained on did not provide. > Substantiality of code does not apply to substantiality of style. I'm not certain what you're saying here. > The copying clearly is necessary for the purpose. No copying, no model. Which, for the substantiality factor, works in favor of the model developers. > It's the essence of an artist's look and feel that's being duplicated and used for commercial gain without a license. Copyright protects works fixed in a tangible medium, not ideas in someone's head. It would protect a work's look/appearance (which can be an issue for AI when overfitting causes outputs that are substantially similar to a protected work), but not style or "an artist's look and feel".
JAlexoid 3y ago
> What's being copied is _look and feel_, which is very much protected by copyright. If that were the case, no one would be able to paint any cubist paintings. (Picasso estate would own the copyright, to this day) It's not that clear cut, there are a lot of nuances.
- UncleEntity 3y ago
  Ironically, Picasso was notorious for copying other artist's 'look and feel'...

JoshTriplett 3y ago

> "many other things" has included, for example, Google Books scanning millions of in-copyright books, storing internally them in full, and making snippets available. That succeeds on a different part of the four-factor test, the degree to which it competes with / affects the market for the original. Google Books is not automatically producing new books derived from their copies that compete with the original books.

Ukv 3y ago
> That succeeds on a different part of the four-factor test, the degree to which it competes with / affects the market for the original It satisfied multiple parts of the four-factor test. It was found satisfy the first factor due to being "highly transformative", the second factor was considered not dispositive is isolation and favoring Google when combined with its transformative purpose, and it satisfied the third factor as the usage was "necessary to achieve that purpose" - with the court making the distinction between what was copied (lots) and what is revealed to the public (limited snippets). As you had all factors as "maximally against" fair use, do you believe that AI is significantly less transformative than Google Books? I'd say even in cases where the output is the same format as the content it was trained on, like Google Translate, it's still generally highly transformative. > the degree to which it competes with Specifically, to be pedantic, it's the effect of the use/copying of the original copyrighted work.