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US copyright does protect for "substantial similarity" [0]. And at the other end of the spectrum, this has been abused in absurd ways to argue that substantiall

• talldayo 2y ago
  > Point is, the legal system is highly selective when it comes to corporate interests. I don't even think it's that. In recent cases like Oracle v. Google and Corellium v. Apple, Fair Use prevailed with all sorts of conflicting corporate interests at play. The Zenimax v. Oculus case very much revolved around NDAs that Carmack had signed and not the propagation of trade secrets. Where IP is strictly the only thing being concerned, the literal interpretation of Fair Use does still seem to exist. Or for a more plain example, Authors Guild. v. Google where Google defended their indexing of thousands of copywritten books as Fair Use.
  • tpmoney 2y ago
    In fact, go to far as to argue your example of Authors Guild v. Google is a good indication that most cases will probably go an AI platform's way. It's a pretty parallel case to a number of the arguments. Indexing required ingesting whole works of copyright material verbatim. It utilized that ingested data to produce a new commercial work consisting of output derived from that data. If I remember the case correctly, google even displayed snippets when matching a search so the searcher could see the match in context, reproducing the works verbatim for those snippets and one could presume (though I don't recall if it was coded against), that with sufficiently clever search prompts, someone could get the index search to reproduce a substantial portion of a work. Arguably, the AI platforms have an even stronger case as their nominal goal is not to have their systems reproduce any part of the works verbatim.
    • belorn 2y ago
      A key finding that the judge said in the Authors Guild v. Google case was that the authors benefited from the tool that google created. A search tool is not a replacement for a book, and are much more likely to generate awareness of the book which in turn should increase sales for the author. AI platforms that replaces and directly compete with authors can not use the same argument. If anything, those suing AI platforms are more likely to bring up Authors Guild v. Google as a guiding case to determine when to apply fair use.
    • jcranmer 2y ago
      > In fact, go to far as to argue your example of Authors Guild v. Google is a good indication that most cases will probably go an AI platform's way. The more recent Warhol decision argues quite strongly in the opposite direction. It fronts market impact as the central factor in fair use analysis, explicitly saying that whether or not a use is transformative is in decent part dependent on the degree to which it replaces the original. So if you're writing a generative AI tool that will generate stock photos that it generated by scraping stock photo databases... I mean, the fair use analysis need consist of nothing more than that sentence to conclude that the use is totally not fair; none of the factors weigh in favor it.
      • tpmoney 2y ago
        I think that decision is much narrower than "market impact". It's specifically about substitution, and to that end, I don't see a good argument that Co-Pilot substitutes for any of the works it was trained on. No one is buying a license to co-pilot to replace buying a license to Photoshop, or GIMP, or Linux, or Tux Racer. Nor is Github selling co-pilot for that use. To the extent that a user of co-pilot could induce it to produce enough of a copyrighted work to both infringe on the content (remember that algorithms are not protected by copyright) and substitute for the original by licensing in lieu of, I would expect the courts to examine that in the ways it currently views a xerox machine being used to create copies of a book. While the machine might have enabled the infringement, it is the person using the machine to produce and then distribute copies that is doing the infringing not the xerox machine itself nor Xerox the company. Specifically in the opinion the court says: >If an original work and a secondary use share >the same or highly similar purposes, and the secondary use >is of a commercial nature, the first factor is likely to >weigh against fair use, absent some other justification for >copying. I find it difficult to come up with a good case that any given work used to train co-pilot and co-pilot itself share "the same or highly similar purposes". Even in the case of say someone having a code generator that was used in training of co-pilot, I think the courts would also be looking at the degree to which co-pilot is dependent on that program. I don't know off hand if there are any court cases challenging the use of copyright works in a large collage of work (like say a portrait of a person made from Time Magazine covers of portraits), but again my expectation here is that the court would find that while the entire work (that is the magazine cover) was used and reproduced, that reproduction is a tiny fraction of the secondary work and not substantial to its purpose. Similarly we have this line: >Whether the purpose and character of a use weighs in favor >of fair use is, instead, an objective inquiry into what use >was made, i.e., what the user does with the original work. Which I think supports my comparison to the xerox machine. If the plaintiffs against Co-Pilot could have shown that a substantial majority of users and uses of Co-Pilot was producing infringing works or producing works that substitute for the training material, they might prevail in an argument that co-pilot is infringing regardless if the intent of github. But I suspect even that hurdle would be pretty hard to clear.
• wahern 2y ago
  > US copyright does protect for "substantial similarity" Substantial similarity refers to three different legal analyses for comparing works. In each case what the analysis is attempting to achieve is different, but in no case does it operate to prohibit similarity, per se. The Wikipedia page points out two meanings. The first is a rule for establishing provenance. Copyright protects originality, not novelty. The difference is that if two people coincidentally create identical works, one after another, the second-in-time creator has not violated any right of the first. (Contrast with patents, which do protect novelty.) In this context, substantial similarity is a way to help establish a rebuttable presumption that the latter work is not original, but inspired by the former; it's a form of circumstantial evidence. Normally a defendant wouldn't admit outright they were knowingly inspired by another work, though they might admit this if their defense focuses on the second meaning, below. The plaintiff would also need to provide evidence of access or exposure to the earlier work to establish provenance; similarity alone isn't sufficient. The second meaning relates to the fact that a work is composed of multiple forms and layers of expression. Not all are copyrightable, and the aggregate of copyrightable elements needs to surpass a minimum threshold of content. Substantial similarity here means a plaintiff needs to establish that there are enough copyrightable elements in common. Two works might be near identical, but not be substantially similar if they look identical merely because they're primarily composed of the same non-copyrightable expressions, regardless of provenance. There's a third meaning, IIRC, referring to a standard for showing similarity at the pleadings stage. This often involves a superficial analysis of apparent similarity between works, but it's just a procedural rule for shutting down spurious claims as quickly as possible.
• copywrong2 2y ago
  Copyright is abused often. Our modern version of copyright is BS and only benefits large corps who buy a lot of IP.
  • whythre 2y ago
    Yep. Now it is a legal cudgel wielded most effectively by corporate giants. It has mutated to become completely philosophically opposed to what it was expressly created to protect.