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Google making a database of all web content and serving up snippets of that content in search results was ruled to be fair use. So it seems plausible that doing

Google making a database of all web content and serving up snippets of that content in search results was ruled to be fair use. So it seems plausible that doing essentially the same thing but with an AI rather than a traditional database could be ruled to be fair use. Its hardly a sure thing but their position does seem to be at least somewhat supported by precedent.

jcranmer 2y ago
https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf is the most recent SCOTUS precedent covering the definition of "transformative" for the purposes of fair use. The tl;dr is that you have to look at the impact on the market for the use to figure out if it's transformative [1]... which means it's extremely unlikely that training for AI is going to be considered "transformative", and thus they lose the first factor. Given that AI is absolutely reamed on the fourth factor (especially now that they're paying people to use their content for training, that's basically a concession on the fourth factor), there isn't really any grounds for them to claim fair use. [1] Yes, it's pulling the fourth factor into the first factor, it is a rather garbage opinion, but it is precedent as of 3 years ago.
- spencerflem 2y ago
  Unfortunately, nowadays what the laws say and what's legal are two different things
  - jcranmer 2y ago
    If you want to be pedantic, fair use isn't about what the law says, since it's entirely derived from judicial precedent rather than statutory text. It wasn't until the 1976 copyright reform that fair use was incorporated in statutory text, but as anyone who's followed any cases on fair use should know, there's never argument based on the statutory text itself.
    - spencerflem 2y ago
      Fair point, though it doesn't seem like the courts are putting much weight on precedent for their decisions either

jcranmer 2y ago

https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf is the most recent SCOTUS precedent covering the definition of "transformative" for the purposes of fair use. The tl;dr is that you have to look at the impact on the market for the use to figure out if it's transformative [1]... which means it's extremely unlikely that training for AI is going to be considered "transformative", and thus they lose the first factor. Given that AI is absolutely reamed on the fourth factor (especially now that they're paying people to use their content for training, that's basically a concession on the fourth factor), there isn't really any grounds for them to claim fair use. [1] Yes, it's pulling the fourth factor into the first factor, it is a rather garbage opinion, but it is precedent as of 3 years ago.

spencerflem 2y ago
Unfortunately, nowadays what the laws say and what's legal are two different things
- jcranmer 2y ago
  If you want to be pedantic, fair use isn't about what the law says, since it's entirely derived from judicial precedent rather than statutory text. It wasn't until the 1976 copyright reform that fair use was incorporated in statutory text, but as anyone who's followed any cases on fair use should know, there's never argument based on the statutory text itself.
  - spencerflem 2y ago
    Fair point, though it doesn't seem like the courts are putting much weight on precedent for their decisions either