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http://suchir.net/fair_use.html http://suchir.net/fair_use.html When does generative AI qualify for fair use? by Suchir Balaji

minimaxir 2y ago
It's also worth reading his initial tweet: https://x.com/suchirbalaji/status/1849192575758139733 https://x.com/suchirbalaji/status/1849192575758139733 > I recently participated in a NYT story about fair use and generative AI, and why I'm skeptical "fair use" would be a plausible defense for a lot of generative AI products. I also wrote a blog post (https://suchir.net/fair_use.html https://suchir.net/fair_use.html) about the nitty-gritty details of fair use and why I believe this. > To give some context: I was at OpenAI for nearly 4 years and worked on ChatGPT for the last 1.5 of them. I initially didn't know much about copyright, fair use, etc. but became curious after seeing all the lawsuits filed against GenAI companies. When I tried to understand the issue better, I eventually came to the conclusion that fair use seems like a pretty implausible defense for a lot of generative AI products, for the basic reason that they can create substitutes that compete with the data they're trained on. I've written up the more detailed reasons for why I believe this in my post. Obviously, I'm not a lawyer, but I still feel like it's important for even non-lawyers to understand the law -- both the letter of it, and also why it's actually there in the first place. > That being said, I don't want this to read as a critique of ChatGPT or OpenAI per se, because fair use and generative AI is a much broader issue than any one product or company. I highly encourage ML researchers to learn more about copyright -- it's a really important topic, and precedent that's often cited like Google Books isn't actually as supportive as it might seem. > Feel free to get in touch if you'd like to chat about fair use, ML, or copyright -- I think it's a very interesting intersection. My email's on my personal website.
- bsenftner 2y ago
  I'm an applied AI developer and CTO at a law firm, and we discuss the fair use argument quite a bit. It grey enough that whom ever has more financial revenues to continue their case will win. Such is the law and legal industry in the USA.
  - motohagiography 2y ago
    what twigs me about the argument against fair use (whereby AI ostensibly "replicates" the content competitively against the original) is that it assumes a model trained on journalism produces journalism or is designed to produce it. the argument against that stance would be easy to make.
    - riwsky 2y ago
      Doesn’t need to be journalism, just needs to compete with it.
    - snovv_crash 2y ago
      I think it makes more sense in context of entertainment. However even in journalism, given the source data there's no reason an LLM couldn't put together the actual public facing article, video etc.
    - MadnessASAP 2y ago
      It has become ludicrously clear in the past decade that many of the competitors to journalism are very much not journalism.
    - TeMPOraL 2y ago
      The model isn't trained on journalism only, you can't even isolate its training like that. It's trained on human writing in general and across specialties, and it's designed to compete with humans on what humans do with text, of which journalism is merely a tiny special case. I think the only principle positions to be had here is to either ignore IP rights for LLM training, or give up entirely, because a model designed to be general like human will need to be trained like a human, i.e. immersed in the same reality as we are, same culture, most of which is shackled by IP claims - and then, obviously, by definition, as it gets better it gets more competitive with humans on everything humans do. You can produce a complaint that "copyrighted X was used in training a model that now can compete with humans on producing X" for arbitrary value of X. You can even produce a complaint about "copyrighted X used in training model that now outcompetes us in producing Y", for arbitrary X and Y that are not even related together, and it will still be true. Such is a nature of a general-purpose ML model.
- DennisP 2y ago
  > they can create substitutes that compete with the data they're trained on. If I'm an artist and copy the style of another artist, I'm also competing with that artist, without violating copyright. I wouldn't see this argument holding up unless it can output close copies of particular works.
Terr_ 2y ago
There's also the output side: Perhaps outputs of generative AI should be ineligible for copyright.
- dr_dshiv 2y ago
  That is the current position, weirdly enough.
  - fenomas 2y ago
    Indeed, and to me it's one of the reasons it's hard to argue that generative AI violates copyright. At least in the US, a derivative work is a creative (i.e. copyrightable) work in its own right. Neither AI models nor their output meet that bar, so it's not clear what the infringing derivative work could be.
    - Terr_ 2y ago
      Non-derivative doesn't mean the same as non-infringing though. For example, suppose if I photograph a copyrighted painting, and then started selling copies of the slightly-cropped photo. The output wouldn't have enough originality to qualify as a derivative work (let alone an original work) but it would still be infringement against the painter.
      - fenomas 2y ago
        If you added something to the painting then you're selling a derivative work, and if you didn't then you're selling a copy of the work itself - but either way an expressive work is being used, which is what copyright law regulates. IANAL, but with LLM models and outputs that seems not to be the case.
    - shakna 2y ago
      Piracy generates works that are neither derivative nor wholly copies (e.g. pre-cracked software). They are not considered creative works in the current framework. They are however, considered to be infringing.
deleted 2y ago
[deleted]
visarga 2y ago
> training on copyrighted data without a similar licensing agreement is also a type of market harm, because it deprives the copyright holder of a source of revenue I would respond to this by 1. authors don't actually get revenue from royalties, instead it's all about add revenue which leads to enshittification. If they were to live on royalties they would die of hunger, artists, copywriters and musicians. 2. copyright is increasingly concentrated in the hands of a few companies and don't really benefit the authors or the readers 3. actually the competition to new creative works is not AI, but old creative works that have been accumulating for 25 years on the web I don't think restrictive copyright is what we need. Instead we have seen people migrate from passive consumption to interactivity, we now prefer games, social networks and search engines to TV, press and radio. Can't turn this trend back, it was created by the internet. We have now wikipedia, github, linux, open source, public domain, open scientific publications and non-restrictive environments for sharing and commenting. If we were to take the idea of protecting copyrights to the extreme, it would mean we need to protect abstract ideas not just expression, because generative AI can easily route around that. But if we protected abstractions from reuse, it would be a disaster for creativity. I just think copyright is a dead man walking at this point.
jarsin 2y ago
I just realized I stumbled on some of this guys writings when I was researching AI and copyright cases. I submitted this one to HN awhile back. He seemed very insightful for someone that isn't a lawyer. RIP.

minimaxir 2y ago

It's also worth reading his initial tweet: https://x.com/suchirbalaji/status/1849192575758139733 https://x.com/suchirbalaji/status/1849192575758139733 > I recently participated in a NYT story about fair use and generative AI, and why I'm skeptical "fair use" would be a plausible defense for a lot of generative AI products. I also wrote a blog post (https://suchir.net/fair_use.html https://suchir.net/fair_use.html) about the nitty-gritty details of fair use and why I believe this. > To give some context: I was at OpenAI for nearly 4 years and worked on ChatGPT for the last 1.5 of them. I initially didn't know much about copyright, fair use, etc. but became curious after seeing all the lawsuits filed against GenAI companies. When I tried to understand the issue better, I eventually came to the conclusion that fair use seems like a pretty implausible defense for a lot of generative AI products, for the basic reason that they can create substitutes that compete with the data they're trained on. I've written up the more detailed reasons for why I believe this in my post. Obviously, I'm not a lawyer, but I still feel like it's important for even non-lawyers to understand the law -- both the letter of it, and also why it's actually there in the first place. > That being said, I don't want this to read as a critique of ChatGPT or OpenAI per se, because fair use and generative AI is a much broader issue than any one product or company. I highly encourage ML researchers to learn more about copyright -- it's a really important topic, and precedent that's often cited like Google Books isn't actually as supportive as it might seem. > Feel free to get in touch if you'd like to chat about fair use, ML, or copyright -- I think it's a very interesting intersection. My email's on my personal website.

bsenftner 2y ago
I'm an applied AI developer and CTO at a law firm, and we discuss the fair use argument quite a bit. It grey enough that whom ever has more financial revenues to continue their case will win. Such is the law and legal industry in the USA.
- motohagiography 2y ago
  what twigs me about the argument against fair use (whereby AI ostensibly "replicates" the content competitively against the original) is that it assumes a model trained on journalism produces journalism or is designed to produce it. the argument against that stance would be easy to make.
  - riwsky 2y ago
    Doesn’t need to be journalism, just needs to compete with it.
  - snovv_crash 2y ago
    I think it makes more sense in context of entertainment. However even in journalism, given the source data there's no reason an LLM couldn't put together the actual public facing article, video etc.
  - MadnessASAP 2y ago
    It has become ludicrously clear in the past decade that many of the competitors to journalism are very much not journalism.
  - TeMPOraL 2y ago
    The model isn't trained on journalism only, you can't even isolate its training like that. It's trained on human writing in general and across specialties, and it's designed to compete with humans on what humans do with text, of which journalism is merely a tiny special case. I think the only principle positions to be had here is to either ignore IP rights for LLM training, or give up entirely, because a model designed to be general like human will need to be trained like a human, i.e. immersed in the same reality as we are, same culture, most of which is shackled by IP claims - and then, obviously, by definition, as it gets better it gets more competitive with humans on everything humans do. You can produce a complaint that "copyrighted X was used in training a model that now can compete with humans on producing X" for arbitrary value of X. You can even produce a complaint about "copyrighted X used in training model that now outcompetes us in producing Y", for arbitrary X and Y that are not even related together, and it will still be true. Such is a nature of a general-purpose ML model.
DennisP 2y ago
> they can create substitutes that compete with the data they're trained on. If I'm an artist and copy the style of another artist, I'm also competing with that artist, without violating copyright. I wouldn't see this argument holding up unless it can output close copies of particular works.

Terr_ 2y ago

There's also the output side: Perhaps outputs of generative AI should be ineligible for copyright.

dr_dshiv 2y ago
That is the current position, weirdly enough.
- fenomas 2y ago
  Indeed, and to me it's one of the reasons it's hard to argue that generative AI violates copyright. At least in the US, a derivative work is a creative (i.e. copyrightable) work in its own right. Neither AI models nor their output meet that bar, so it's not clear what the infringing derivative work could be.
  - Terr_ 2y ago
    Non-derivative doesn't mean the same as non-infringing though. For example, suppose if I photograph a copyrighted painting, and then started selling copies of the slightly-cropped photo. The output wouldn't have enough originality to qualify as a derivative work (let alone an original work) but it would still be infringement against the painter.
    - fenomas 2y ago
      If you added something to the painting then you're selling a derivative work, and if you didn't then you're selling a copy of the work itself - but either way an expressive work is being used, which is what copyright law regulates. IANAL, but with LLM models and outputs that seems not to be the case.
  - shakna 2y ago
    Piracy generates works that are neither derivative nor wholly copies (e.g. pre-cracked software). They are not considered creative works in the current framework. They are however, considered to be infringing.

deleted 2y ago

[deleted]

visarga 2y ago

> training on copyrighted data without a similar licensing agreement is also a type of market harm, because it deprives the copyright holder of a source of revenue I would respond to this by 1. authors don't actually get revenue from royalties, instead it's all about add revenue which leads to enshittification. If they were to live on royalties they would die of hunger, artists, copywriters and musicians. 2. copyright is increasingly concentrated in the hands of a few companies and don't really benefit the authors or the readers 3. actually the competition to new creative works is not AI, but old creative works that have been accumulating for 25 years on the web I don't think restrictive copyright is what we need. Instead we have seen people migrate from passive consumption to interactivity, we now prefer games, social networks and search engines to TV, press and radio. Can't turn this trend back, it was created by the internet. We have now wikipedia, github, linux, open source, public domain, open scientific publications and non-restrictive environments for sharing and commenting. If we were to take the idea of protecting copyrights to the extreme, it would mean we need to protect abstract ideas not just expression, because generative AI can easily route around that. But if we protected abstractions from reuse, it would be a disaster for creativity. I just think copyright is a dead man walking at this point.

jarsin 2y ago

I just realized I stumbled on some of this guys writings when I was researching AI and copyright cases. I submitted this one to HN awhile back. He seemed very insightful for someone that isn't a lawyer. RIP.