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Basically, it’s an open question that courts have yet to decide. But the idea is that it’s fair use until courts decide otherwise (or laws decide otherwise, but

Basically, it’s an open question that courts have yet to decide. But the idea is that it’s fair use until courts decide otherwise (or laws decide otherwise, but that doesn’t seem likely). That’s my understanding, but I could be wrong. I expect we’ll see more and more cases about this, which is exactly why the EFF wants to take a position now. They do link to a (very long) article by a law professor arguing that data mining is fair use. If you want to get into the weeds there, knock yourself out. https://lawreview.law.ucdavis.edu/sites/g/files/dgvnsk15026/files/media/documents/53-2_Carroll.pdf https://lawreview.law.ucdavis.edu/sites/g/files/dgvnsk15026/...

dragonwriter 1y ago
> Basically, it’s an open question that courts have yet to decide. While it hasn't either been ruled on or turned away at the Supreme Court yet, a number of federal trial courts have found training AI models from legally-acquired materials to be fair use (even while finding, in some of those and other cases, that pirating to get copies to then use in training is not and using models as a tool to produce verbatim and modified similar-medium copies of works from the training material is also not.) I’m not aware of any US case going the other way, so, while the cases may not strictly be precedential (I think they are all trial court decisions so far), they are something of a consistent indicator.
- AnthonyMouse 1y ago
  > even while finding, in some of those and other cases, that pirating to get copies to then use in training is not I still don't get this one. It seems like they've made a ruling with a dependency on itself without noticing. Suppose you and some of your friends each have some books, all legally acquired. You get them together and scan them and do your training. This is the thing they're saying is fair use, right? You're getting together for the common enterprise of training this AI model on your lawfully acquired books. Now suppose one of your friends is in Texas and you're in California, so you do it over the internet. Making a fair use copy is not piracy, right? So you're not making a "pirated copy", you're making a fair use copy. They recognize that one being fair use has something to do with the other one being, but then ignore the symmetry. It's like they hear the words "file sharing" and refuse to allow it to be associated with something lawful.
  - tpmoney 1y ago
    In Judge Alsup's case, it largely hinged on whether you had a right to the initial copy in the first place. If I read (and recall) his ruling correctly, the initial pirated copy (that is, downloading from a source that didn't have the right to distribute it in the first place) made all subsequent intermediary copies necessary to the training process also not fair use. So in the case of you and your friends, it isn't the physical location that makes a difference, but whether you obtained the original copy legally, and the subsequent copies were necessary parts of the training process. This is also one of those places where we see the necessity for a legal concept of corporate "personhood". AnthonyMouseAI Inc. is the entity that needs to acquire and own the original copy in order for you and your friend to be jointly working on the process and sending copies back and forth. If your friend stops being an employee of AnthonyMouseAI Inc, they can't keep those copies and you can't send them any more. Can you and your buddies do this without forming a legal corporation or partnership? Sure. Will that be a complicating factor if a publisher sued you? Probably.
    - freejazz 1y ago
      Reminder that in the Alsup case, the shadow library was not used for training.
    - AnthonyMouse 1y ago
      > In Judge Alsup's case, it largely hinged on whether you had a right to the initial copy in the first place. If I read (and recall) his ruling correctly, the initial pirated copy (that is, downloading from a source that didn't have the right to distribute it in the first place) made all subsequent intermediary copies necessary to the training process also not fair use. But that's the issue, isn't it? Someone has bought a legitimate copy and put it on Napster with the intention of providing copies to people when it's fair use. If people then download it for non-fair use purposes while they all wink at each other, it doesn't become fair use just because you said it was. But if the person(s) downloading it actually do make fair use of it, isn't that different? How is it unlike borrowing a book from the library and quoting an excerpt from it in your criticism? > Can you and your buddies do this without forming a legal corporation or partnership? Partnerships aren't corporations and are generally what gets formed by default if nobody files any paperwork. There are often reasons that's not what you want, but that's not the point here. It's also sort of like, so if you filed official paperwork for a limited-liability partnership that lets anyone in then you could do it? If that was actually the thing that matters then they would just do that, right? Which also implies that it shouldn't be, because vacuous requirements are unproductive.
1gn15 1y ago
> Basically, it’s an open question that courts have yet to decide. This is often repeated, but not true. Multiple US and UK courts have repeatedly ruled that it is fair use. Anthropic won. Meta won. Just yesterday, Stability won against Getty. At this point, it's pretty obvious that it's legal, considering that media companies have lost every single lawsuit so far. https://fixvx.com/technollama/status/1985653634390995178 https://fixvx.com/technollama/status/1985653634390995178
freejazz 1y ago
> But the idea is that it’s fair use until courts decide otherwise That's certainly an "idea"

dragonwriter 1y ago

> Basically, it’s an open question that courts have yet to decide. While it hasn't either been ruled on or turned away at the Supreme Court yet, a number of federal trial courts have found training AI models from legally-acquired materials to be fair use (even while finding, in some of those and other cases, that pirating to get copies to then use in training is not and using models as a tool to produce verbatim and modified similar-medium copies of works from the training material is also not.) I’m not aware of any US case going the other way, so, while the cases may not strictly be precedential (I think they are all trial court decisions so far), they are something of a consistent indicator.

AnthonyMouse 1y ago
> even while finding, in some of those and other cases, that pirating to get copies to then use in training is not I still don't get this one. It seems like they've made a ruling with a dependency on itself without noticing. Suppose you and some of your friends each have some books, all legally acquired. You get them together and scan them and do your training. This is the thing they're saying is fair use, right? You're getting together for the common enterprise of training this AI model on your lawfully acquired books. Now suppose one of your friends is in Texas and you're in California, so you do it over the internet. Making a fair use copy is not piracy, right? So you're not making a "pirated copy", you're making a fair use copy. They recognize that one being fair use has something to do with the other one being, but then ignore the symmetry. It's like they hear the words "file sharing" and refuse to allow it to be associated with something lawful.
- tpmoney 1y ago
  In Judge Alsup's case, it largely hinged on whether you had a right to the initial copy in the first place. If I read (and recall) his ruling correctly, the initial pirated copy (that is, downloading from a source that didn't have the right to distribute it in the first place) made all subsequent intermediary copies necessary to the training process also not fair use. So in the case of you and your friends, it isn't the physical location that makes a difference, but whether you obtained the original copy legally, and the subsequent copies were necessary parts of the training process. This is also one of those places where we see the necessity for a legal concept of corporate "personhood". AnthonyMouseAI Inc. is the entity that needs to acquire and own the original copy in order for you and your friend to be jointly working on the process and sending copies back and forth. If your friend stops being an employee of AnthonyMouseAI Inc, they can't keep those copies and you can't send them any more. Can you and your buddies do this without forming a legal corporation or partnership? Sure. Will that be a complicating factor if a publisher sued you? Probably.
  - freejazz 1y ago
    Reminder that in the Alsup case, the shadow library was not used for training.
  - AnthonyMouse 1y ago
    > In Judge Alsup's case, it largely hinged on whether you had a right to the initial copy in the first place. If I read (and recall) his ruling correctly, the initial pirated copy (that is, downloading from a source that didn't have the right to distribute it in the first place) made all subsequent intermediary copies necessary to the training process also not fair use. But that's the issue, isn't it? Someone has bought a legitimate copy and put it on Napster with the intention of providing copies to people when it's fair use. If people then download it for non-fair use purposes while they all wink at each other, it doesn't become fair use just because you said it was. But if the person(s) downloading it actually do make fair use of it, isn't that different? How is it unlike borrowing a book from the library and quoting an excerpt from it in your criticism? > Can you and your buddies do this without forming a legal corporation or partnership? Partnerships aren't corporations and are generally what gets formed by default if nobody files any paperwork. There are often reasons that's not what you want, but that's not the point here. It's also sort of like, so if you filed official paperwork for a limited-liability partnership that lets anyone in then you could do it? If that was actually the thing that matters then they would just do that, right? Which also implies that it shouldn't be, because vacuous requirements are unproductive.

1gn15 1y ago

> Basically, it’s an open question that courts have yet to decide. This is often repeated, but not true. Multiple US and UK courts have repeatedly ruled that it is fair use. Anthropic won. Meta won. Just yesterday, Stability won against Getty. At this point, it's pretty obvious that it's legal, considering that media companies have lost every single lawsuit so far. https://fixvx.com/technollama/status/1985653634390995178 https://fixvx.com/technollama/status/1985653634390995178

freejazz 1y ago

> But the idea is that it’s fair use until courts decide otherwise That's certainly an "idea"