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The headline is either sloppy or intentionally misleading: the Copyright Office is saying that the law surrounding whether AI generated works can be copyrighted

The headline is either sloppy or intentionally misleading: the Copyright Office is saying that the law surrounding whether AI generated works can be copyrighted was settled in 1965 (the answer being "yes if AI assisted a human creative process, no if not, and we have to decide on a case by case basis if there was enough human input to qualify"). This has been their stance all along, but now they've provided a bit more guidance on what counts as human input, which is helpful. What this article doesn't talk about at all is the far more controversial AI copyright debate, the one most people will think of given the headline: whether training a model is fair use. That's the one everyone is actually concerned about, and they're definitely not claiming it was settled already.

cxr 2y ago
There's not really much of a debate, just a bunch of clamoring and wishful thinking by rightsholders who don't understand copyright law insisting that precedent should be subordinate to mimetic outrage over LLMs.
- throwaway17_17 2y ago
  In what way are ‘rightsholders’ expressing wishful thinking? I assume you are saying that there is no violation of those rights controlling various properties that have been used to train ‘AI’. You then mention precedent in a way that implies there are legal decisions that make it clear ‘AI’ training using copyrighted material does not violate the rights of those who own that material. Could you list or link to such a precedent? To the best of my knowledge, there is no direct precedent from any federal circuit addressing this issue and certainly no USSC opinions dealing with the issue. Additionally, any analogies drawn from precedent focused on other areas of intellectual property law is easily distinguishable. This is truly fresh legal ground and the next 10 years of jurisprudence will go a long way towards building the precedent that your comment would imply to already exist. Just to be explicit, the above, while a legal opinion, IS NOT legal advice.
  - jpalawaga 2y ago
    Copyright law stipulates the conditions in which content can be reproduced, not conditions in which it can be consumed. Arguably the material has been learned and not copied. Maybe in some cases learned with an uncanny ability or photographic memory, but learned. (People with photographic memories also cannot reproduce content in an unlimited fashion).
    - b112 2y ago
      Learned! There's nothing special about an LLM, there's no learning, and they regurgitate verbatim text too. May as well say curl + images in a db are learned as well, so thus I can use Mickey Miuse as I please in my php web page.
      - drdeca 2y ago
        While learned is probably not the best word to use as far as describing the legality goes, I also don’t think “copied” is the right word. Let’s say that the model “is influenced by” the copyrighted material. That seems hard to argue against. So, now that we aren’t using the word “learned”, why would we say that the way the models are influenced by the copyrighted works that appear in the “training set” (not to imply that “training” in the usual sense is happening) counts as a copyright violation? Or, perhaps the claim is that the outputs of the model are violating copyright? If the output is substantially similar to some particular copyrighted work that is in the “training set”, and could work as a substitute for that work, and if the output resembling the work is in part due to the influence that the work had on the model, I think in this case it would be a clear case of violation of copyright. However, if it doesn’t have substantial similarity to any particular copyrighted work that influenced it, only similarity to the style common to many of the works that influenced it (even if all by the same author), my impression is that this would not constitute copyright infringement because styles are not protected by copyright, only individual works. (Now, is this unjust, in the case of it copying the style of some particular author/artist? Idk, maybe? But my impression is that copyright doesn’t protect styles, and that it probably shouldn’t protect styles in general… so I guess maybe if we had a law making a special case forbidding the (deliberate?) copying of a person’s particular style via some kind of machine learning model? Idk.)
Salgat 2y ago
The human input makes sense, otherwise, couldn't you bruteforce generate billions of low resolution images that cover a vast range of situations and then use that to attack anything similar enough to fit the substantial similarity condition? You could even plug a news feed into the generator.
- dotancohen 2y ago
  Somebody did this with music - they brute forced all chord progressions or something like that. In theory all new music is infringing.
  - AstralStorm 2y ago
    Unfortunate problem of copyright being an ever uphill battle and why it should be short timed. Similarly with patents. Even when used there should be a timeout, possibly per clause to avoid overly broad stuff. But then a few IP trolls and lawyers would have to find another job.
  - somenameforme 2y ago
    Things like this often makes me wish we had more 'common sense' laws and left the discretion of interpreting that notion to judges, juries, and the various systems of appeals and other courts we have, entirely with the expectation that laws would 'evolve' over time. This might sound radical, but instead it's actually just going back to how things used to be. Here is the First Amendment in its entirety: --- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." --- The rest of the bill of rights looks similarly. Now a days it'd be thousands of pages long trying to elaborate endlessly upon every single scenario. But the more important thing is that this idea of trying to codify every scenario still doesn't work because you end up with a zillion loopholes in just about every single law with some clever clown going 'ah hah! you didn't cover this!' So all you really do is end up with laws that are not only excessively fragile and subject to exploitation, but also completely indecipherable by just about anybody, certainly including the people voting on their passage.
bonzini 2y ago
> yes if AI assisted a human creative process, no if not Fair enough but does that help settle the other question, which is whether weights are considered derivative works of any material used in the training?
Terr_ 2y ago
> whether training a model is fair use I want to highlight that training the model is only one part of the copyright questions going on, the other is how they are making and keeping direct long-term copies in giant training datasets. Imagine what would happen if a regular person bought and then immediately resold thousands of books, CDs, and movies, taking just enough time to make a copy of each one and building out their own library/movie-theater for friends and coworkers. You think the powers-that-be would let you or I get away with that? There is no (non-evil) reason to hold multijillion dollar corporations with professional legal advice on-tap to a lower standard than regular people.
- xp84 2y ago
  You’re making the exact same kind of maximalist argument as people who argued that ripping a CD and letting your brother listen to the MP3s is exactly morally and criminally like shoplifting the disc. Or that recording a movie off TV was equal to stealing it. (That particular one was of course famously judged by the courts as “tough shit” to the copyright owners who sued over it.) Yes, training does impart some fraction of an article into the weights. NYT famously “demonstrated” this by like typing whole paragraphs of their articles into GPT and having the model produce some of the following sentences. However, this substitutes for the article in zero ways, since if you need the article to summon the article…who cares? We should admit that nothing about our copyright law intentionally weighed in about LLMs. It’s simply nuts to apply a law to a situation when its drafters had no idea of the positive or negative implications of such an application. It would be like applying a law that calculated prison time based on number of horses stolen to someone who stole a Honda Civic with 100hp and saying that clearly they should get 100 years because it is equal to 100 horses. Now, I get that we have a useless legislative branch which even if they actually passed intentionally applicable laws, they’d be stupid ones, but I think making simplistic analogies like that do not help anyone, other than the Luddites. Look, the cat is out of the bag and even if say, the US government effectively killed all Gen AI by forcing any training to be done with material you own the copyright of, countries like China (and criminals, who can simply use the tech in secret) will happily just pull ahead of us and economically demolish us - like any country would have done if a competing country had banned electricity 100 years ago. We need something better than the ridiculously unfit 200-year old paradigm for this.
sublinear 2y ago
ALL OF WHAT AI HAS BEEN TRAINED ON IS HUMAN INPUT

cxr 2y ago

There's not really much of a debate, just a bunch of clamoring and wishful thinking by rightsholders who don't understand copyright law insisting that precedent should be subordinate to mimetic outrage over LLMs.

throwaway17_17 2y ago
In what way are ‘rightsholders’ expressing wishful thinking? I assume you are saying that there is no violation of those rights controlling various properties that have been used to train ‘AI’. You then mention precedent in a way that implies there are legal decisions that make it clear ‘AI’ training using copyrighted material does not violate the rights of those who own that material. Could you list or link to such a precedent? To the best of my knowledge, there is no direct precedent from any federal circuit addressing this issue and certainly no USSC opinions dealing with the issue. Additionally, any analogies drawn from precedent focused on other areas of intellectual property law is easily distinguishable. This is truly fresh legal ground and the next 10 years of jurisprudence will go a long way towards building the precedent that your comment would imply to already exist. Just to be explicit, the above, while a legal opinion, IS NOT legal advice.
- jpalawaga 2y ago
  Copyright law stipulates the conditions in which content can be reproduced, not conditions in which it can be consumed. Arguably the material has been learned and not copied. Maybe in some cases learned with an uncanny ability or photographic memory, but learned. (People with photographic memories also cannot reproduce content in an unlimited fashion).
  - b112 2y ago
    Learned! There's nothing special about an LLM, there's no learning, and they regurgitate verbatim text too. May as well say curl + images in a db are learned as well, so thus I can use Mickey Miuse as I please in my php web page.
    - drdeca 2y ago
      While learned is probably not the best word to use as far as describing the legality goes, I also don’t think “copied” is the right word. Let’s say that the model “is influenced by” the copyrighted material. That seems hard to argue against. So, now that we aren’t using the word “learned”, why would we say that the way the models are influenced by the copyrighted works that appear in the “training set” (not to imply that “training” in the usual sense is happening) counts as a copyright violation? Or, perhaps the claim is that the outputs of the model are violating copyright? If the output is substantially similar to some particular copyrighted work that is in the “training set”, and could work as a substitute for that work, and if the output resembling the work is in part due to the influence that the work had on the model, I think in this case it would be a clear case of violation of copyright. However, if it doesn’t have substantial similarity to any particular copyrighted work that influenced it, only similarity to the style common to many of the works that influenced it (even if all by the same author), my impression is that this would not constitute copyright infringement because styles are not protected by copyright, only individual works. (Now, is this unjust, in the case of it copying the style of some particular author/artist? Idk, maybe? But my impression is that copyright doesn’t protect styles, and that it probably shouldn’t protect styles in general… so I guess maybe if we had a law making a special case forbidding the (deliberate?) copying of a person’s particular style via some kind of machine learning model? Idk.)

Salgat 2y ago

The human input makes sense, otherwise, couldn't you bruteforce generate billions of low resolution images that cover a vast range of situations and then use that to attack anything similar enough to fit the substantial similarity condition? You could even plug a news feed into the generator.

dotancohen 2y ago
Somebody did this with music - they brute forced all chord progressions or something like that. In theory all new music is infringing.
- AstralStorm 2y ago
  Unfortunate problem of copyright being an ever uphill battle and why it should be short timed. Similarly with patents. Even when used there should be a timeout, possibly per clause to avoid overly broad stuff. But then a few IP trolls and lawyers would have to find another job.
- somenameforme 2y ago
  Things like this often makes me wish we had more 'common sense' laws and left the discretion of interpreting that notion to judges, juries, and the various systems of appeals and other courts we have, entirely with the expectation that laws would 'evolve' over time. This might sound radical, but instead it's actually just going back to how things used to be. Here is the First Amendment in its entirety: --- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." --- The rest of the bill of rights looks similarly. Now a days it'd be thousands of pages long trying to elaborate endlessly upon every single scenario. But the more important thing is that this idea of trying to codify every scenario still doesn't work because you end up with a zillion loopholes in just about every single law with some clever clown going 'ah hah! you didn't cover this!' So all you really do is end up with laws that are not only excessively fragile and subject to exploitation, but also completely indecipherable by just about anybody, certainly including the people voting on their passage.

bonzini 2y ago

> yes if AI assisted a human creative process, no if not Fair enough but does that help settle the other question, which is whether weights are considered derivative works of any material used in the training?

Terr_ 2y ago

> whether training a model is fair use I want to highlight that training the model is only one part of the copyright questions going on, the other is how they are making and keeping direct long-term copies in giant training datasets. Imagine what would happen if a regular person bought and then immediately resold thousands of books, CDs, and movies, taking just enough time to make a copy of each one and building out their own library/movie-theater for friends and coworkers. You think the powers-that-be would let you or I get away with that? There is no (non-evil) reason to hold multijillion dollar corporations with professional legal advice on-tap to a lower standard than regular people.

xp84 2y ago
You’re making the exact same kind of maximalist argument as people who argued that ripping a CD and letting your brother listen to the MP3s is exactly morally and criminally like shoplifting the disc. Or that recording a movie off TV was equal to stealing it. (That particular one was of course famously judged by the courts as “tough shit” to the copyright owners who sued over it.) Yes, training does impart some fraction of an article into the weights. NYT famously “demonstrated” this by like typing whole paragraphs of their articles into GPT and having the model produce some of the following sentences. However, this substitutes for the article in zero ways, since if you need the article to summon the article…who cares? We should admit that nothing about our copyright law intentionally weighed in about LLMs. It’s simply nuts to apply a law to a situation when its drafters had no idea of the positive or negative implications of such an application. It would be like applying a law that calculated prison time based on number of horses stolen to someone who stole a Honda Civic with 100hp and saying that clearly they should get 100 years because it is equal to 100 horses. Now, I get that we have a useless legislative branch which even if they actually passed intentionally applicable laws, they’d be stupid ones, but I think making simplistic analogies like that do not help anyone, other than the Luddites. Look, the cat is out of the bag and even if say, the US government effectively killed all Gen AI by forcing any training to be done with material you own the copyright of, countries like China (and criminals, who can simply use the tech in secret) will happily just pull ahead of us and economically demolish us - like any country would have done if a competing country had banned electricity 100 years ago. We need something better than the ridiculously unfit 200-year old paradigm for this.

sublinear 2y ago

ALL OF WHAT AI HAS BEEN TRAINED ON IS HUMAN INPUT