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well, the position that such training is fair use also gives a lot of power to the smaller players: it means open-source models, and small communities fine-tuni

well, the position that such training is fair use also gives a lot of power to the smaller players: it means open-source models, and small communities fine-tuning those, have a chance in the market (especially when using work copyrighted by mega-corps). If such training is not fair use, that generally builds a moat for those with a lot of capital or those who already own a lot of copyright on material (which is not individual artists but a slightly different set of megacorps). It's not unlike the spat between Epic and Apple: it is fundamentally two very rich, big, and powerful entities fighting over a large slice of the pie, but one side represents a far better status quo for smaller entities than the other. (put another way, if OpenAI is made to pay for their training data, it is not the small artists that will be paid, it is the megacorps. The small artists will still have the problem of competing with AI, and now those who are competing will be paying a tax to the megacorps to do so, instead of having the option of using their own models. Training as fair use isn't particularly good for smaller artists but the alternative is less good. If you want to improve their lot I think other means are necessary) My preferred set of legal decisions in the current copyright framework would be: training as fair use, model weights as facts and therefore not copyrightable (though this still annoyingly means models can be kept private), and model output is not copyrightable. This still means artists getting the short end of the stick, but it also severely limits the extent to which a large company can profiteer without a competitor undercutting them (preferably an open-source one, though ATM training foundational models is still sufficiently expensive that's going to be a challenge past the hyper period).

benreesman 3y ago
That’s a reasonable conclusion and a kind of lesser of evils, but only if you take sufficient remedies off the table: I agree that if we fix “megacorps always get their way, we can kinda influence which ones but it’s a zero-sum thing”, the question becomes, what screws the public that collectively owned the commons the least? But stronger remedies are possible without many if any new laws: straightforward anti-trust action should have either created housebroken regulated monopolies (e.g. Bell) or broken these companies up years ago. Microsoft alone has fought off such action against a different extremely damning body of evidence and precedent at least once at “front page” levels of plausibility. The exact point at which a search engine, an OS, a hyper-scaler, a de-facto defense contractor, a hardware OEM, an AdTech platform, … becomes too much scope for anti-market activity is debatable, but it should be pretty uncontroversial that we’re overloading the donkey a bit here with most of the top 10 by cap. What about, you can’t be a search engine with a copy of the Internet and a secretive mega AI lab? That seems a pretty plausible place to start carving the turkey? Or, you can’t turn a tax-advantaged 501c-style structure into a de facto subsidiary of such? Or we create a new category of intellectual property addressing the realities of the modern world in which copyright is too diffuse to let any “derivative work” be anything other than public domain? The problem would be funding it of course. If only a bunch of hyper-resourced people and institutions felt it was important enough to build AI to create some sort of institution devoted to the public welfare to put the money up for the greater good…

benreesman 3y ago

That’s a reasonable conclusion and a kind of lesser of evils, but only if you take sufficient remedies off the table: I agree that if we fix “megacorps always get their way, we can kinda influence which ones but it’s a zero-sum thing”, the question becomes, what screws the public that collectively owned the commons the least? But stronger remedies are possible without many if any new laws: straightforward anti-trust action should have either created housebroken regulated monopolies (e.g. Bell) or broken these companies up years ago. Microsoft alone has fought off such action against a different extremely damning body of evidence and precedent at least once at “front page” levels of plausibility. The exact point at which a search engine, an OS, a hyper-scaler, a de-facto defense contractor, a hardware OEM, an AdTech platform, … becomes too much scope for anti-market activity is debatable, but it should be pretty uncontroversial that we’re overloading the donkey a bit here with most of the top 10 by cap. What about, you can’t be a search engine with a copy of the Internet and a secretive mega AI lab? That seems a pretty plausible place to start carving the turkey? Or, you can’t turn a tax-advantaged 501c-style structure into a de facto subsidiary of such? Or we create a new category of intellectual property addressing the realities of the modern world in which copyright is too diffuse to let any “derivative work” be anything other than public domain? The problem would be funding it of course. If only a bunch of hyper-resourced people and institutions felt it was important enough to build AI to create some sort of institution devoted to the public welfare to put the money up for the greater good…