4 ms·

Most important part of fair use is does it harm the market for the original work. Search helps to brings more eyes to the original work, llms don't.

tpmoney 1y ago
The fair use test (in US copyright law) is a 4 part test under which impact on the market for the original work is one of 4 parts. Notably, just because a use has massively detrimental harms to a work's market does not in and of itself constitute a copyright violation. And it couldn't be any other way. Imagine if you could be sued for copyright infringement for using a work to criticize that work or the author of that work if the author could prove that your criticism hurt their sales. Imagine if you could be sued for copyright infringement because you wrote a better song or book on the same themes as a previous creator after seeing their work and deciding you could do it better. Perhaps famously, emulators very clearly and objectively impact the market for a game consoles and computers and yet they are also considered fair use under US copyright law. No one part of the 4 part test is more important than the others. And so far in the US, training and using an LLM has been ruled by the courts to be fair use so long as the materials used in the training were obtained legally.
- willis936 1y ago
  1. Character of the use. Commercial. Unfavorable. 2. Nature of the work. Imaginative or creative. Unfavorable. 3. Quantity of use. All of it. Unfavorable. 4. Impact on original market. Direct competition. Royalty avoidance. Unfavorable. Just because the courts have not done their job properly does not mean something illegal is not happening.
  - tpmoney 1y ago
    All of these apply to emulators. * The use is commercial (a number of emulators are paid access, and the emulator case that carved out the biggest fair use space for them was Connectix Virtual Game Station a very explicitly commercial product) * The nature of the work is imaginative and creative. No one can argue games and game consoles aren't imaginative and creative works. * Quantity of use. A perfect emulator must replicate 100% of the functionality of the system being emulated, often times including bios functionality. * Impact on market. Emulators are very clearly in direct competition with the products they emulate. This was one of Sony's big arguments against VGS. But also just look around at the officially licensed mini-retro consoles like the ones put out by Nintento, Sony and Atari. Those retro consoles are very clearly competing with emulators in the retro space and their sales were unquestionably affected by the existence of those emulators. Royalty avoidance is also in play here since no emulator that I know of pays licensing fees to Nintendo or Sony. So are emulators a violation of copyright? If not, what is the substantial difference here? An emulator can duplicate a copyrighted work exactly, and in fact is explicitly intended to do so (yes, you can claim its about the homebrew scene, and you can look at any tutorial on setting up these systems on youtube to see that's clearly not what people want to do with them). Most of the AI systems are specifically programmed to not output copyrighted works exactly. Imagine a world where emulators had hash codes for all the known retail roms and refused to play them. That's what AI systems try to do. Just because you have enumerated the 4 points and given 1 word pithy arguments for something illegal happening does not mean that it is. Judge Alsup laid out a pretty clear line of reasoning for why he reached the decision he did, with a number of supporting examples [1]. It's only 32 pages, and a relatively easy read. He's also the same judge that presided over the Oracle v. Google cases that found Google's use of the java APIs to be fair use despite that also meeting all 4 of your descriptions. Given that, you'll forgive me if I find his reasoning a bit more persuasive than your 52 word assertion that something illegal is happening. [1]: https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwbgqlzpw/ANTHROPIC%20fair%20use.pdf https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwbgqlzpw/...
    - freejazz 1y ago
      >If not, what is the substantial difference here? Well they are completely different systems functioning in completely different ways and only looking at one of the four factors isn't doing any favors.
      - tpmoney 1y ago
        I believe we’re in violent agreement here, because my point was that all 4 aspects are equally important and they need to be evaluated as a whole. And further that the current legal rulings on these systems delve into each of those parts with much more nuance and care than the provided 56 word surface level examination of the issues
- drivebyhooting 1y ago
  > And so far in the US, training and using an LLM has been ruled by the courts to be fair use so long as the materials used in the training were obtained legally. Just like OpenAI is rightfully upset if their LLM output is used to train a competitor’s model and might seek to restrict it contractually, publishers too may soon have EULAs just for reading their books.
  - artninja1988 1y ago
    I don't think they are rightfully upset at all. Yeah, no kidding. Everyone becomes pro rent seeker when it suits them. Which is the exact reason we must rain it in
    - drivebyhooting 1y ago
      I misspoke. I should have written “understandably upset”.
  - tpmoney 1y ago
    OpenAI's hypocrisy on this matter is precisely why hackers should be taking this as the best opportunity we've had in decades to scale back the massive expansions that Disney et al have managed to place on copyright. But instead of taking advantage of the fact that for once someone with funding and money can go toe to toe with the big publishers and that in doing so they will be hoist on their own petard, a lot of hackers appear to be circling the wagons and suddenly finding that they think this whole "IP" thing is good actually and maybe we should make copyright even stronger. Surely making copyright even stronger (and even expanding it to cover style as some have argued in response to the Ghibli style stuff) will have no unintended consequences going forward into a future where more and more technology is locked down by major manufacturers with a strong incentive to use and abuse IP law to prevent competition and open alternatives... right?
    - drivebyhooting 1y ago
      GenAI art is like counterfeit goods. If left unchecked it will mostly destroy the market for the original.
AnthonyMouse 1y ago
It seems like you're responding to a question about training by talking about inference. If you train an LLM because you want to use it to do sentiment analysis to flag social media posts for human review, or Facebook trains one and publishes it and others use it for something like that, how is that doing anything to the market for the original work? For that matter, if you trained an LLM and then ran out of money without ever using it for anything, how would that? It should be pretty obvious that the training isn't the part that's doing anything there. And then for inference, wouldn't it depend on what you're actually using it for? If you're doing sentiment analysis, that's very different than if you're creating an unlicensed Harry Potter sequel that you expect to run in theaters and sell tickets. But conversely, just because it can produce a character from Harry Potter doesn't mean that couldn't be fair use either. What if it's being used for criticism or parody or any of the other typical instances of fair use? The trouble is there's no automated way to make a fair use determination, and it really depends on what the user is doing with it, but the media companies are looking for some hook to go after the AI companies who are providing a general purpose tool instead of the subset of their "can't get blood from a stone" customers who are using that tool for some infringing purpose.

tpmoney 1y ago

The fair use test (in US copyright law) is a 4 part test under which impact on the market for the original work is one of 4 parts. Notably, just because a use has massively detrimental harms to a work's market does not in and of itself constitute a copyright violation. And it couldn't be any other way. Imagine if you could be sued for copyright infringement for using a work to criticize that work or the author of that work if the author could prove that your criticism hurt their sales. Imagine if you could be sued for copyright infringement because you wrote a better song or book on the same themes as a previous creator after seeing their work and deciding you could do it better. Perhaps famously, emulators very clearly and objectively impact the market for a game consoles and computers and yet they are also considered fair use under US copyright law. No one part of the 4 part test is more important than the others. And so far in the US, training and using an LLM has been ruled by the courts to be fair use so long as the materials used in the training were obtained legally.

willis936 1y ago
1. Character of the use. Commercial. Unfavorable. 2. Nature of the work. Imaginative or creative. Unfavorable. 3. Quantity of use. All of it. Unfavorable. 4. Impact on original market. Direct competition. Royalty avoidance. Unfavorable. Just because the courts have not done their job properly does not mean something illegal is not happening.
- tpmoney 1y ago
  All of these apply to emulators. * The use is commercial (a number of emulators are paid access, and the emulator case that carved out the biggest fair use space for them was Connectix Virtual Game Station a very explicitly commercial product) * The nature of the work is imaginative and creative. No one can argue games and game consoles aren't imaginative and creative works. * Quantity of use. A perfect emulator must replicate 100% of the functionality of the system being emulated, often times including bios functionality. * Impact on market. Emulators are very clearly in direct competition with the products they emulate. This was one of Sony's big arguments against VGS. But also just look around at the officially licensed mini-retro consoles like the ones put out by Nintento, Sony and Atari. Those retro consoles are very clearly competing with emulators in the retro space and their sales were unquestionably affected by the existence of those emulators. Royalty avoidance is also in play here since no emulator that I know of pays licensing fees to Nintendo or Sony. So are emulators a violation of copyright? If not, what is the substantial difference here? An emulator can duplicate a copyrighted work exactly, and in fact is explicitly intended to do so (yes, you can claim its about the homebrew scene, and you can look at any tutorial on setting up these systems on youtube to see that's clearly not what people want to do with them). Most of the AI systems are specifically programmed to not output copyrighted works exactly. Imagine a world where emulators had hash codes for all the known retail roms and refused to play them. That's what AI systems try to do. Just because you have enumerated the 4 points and given 1 word pithy arguments for something illegal happening does not mean that it is. Judge Alsup laid out a pretty clear line of reasoning for why he reached the decision he did, with a number of supporting examples [1]. It's only 32 pages, and a relatively easy read. He's also the same judge that presided over the Oracle v. Google cases that found Google's use of the java APIs to be fair use despite that also meeting all 4 of your descriptions. Given that, you'll forgive me if I find his reasoning a bit more persuasive than your 52 word assertion that something illegal is happening. [1]: https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwbgqlzpw/ANTHROPIC%20fair%20use.pdf https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwbgqlzpw/...
  - freejazz 1y ago
    >If not, what is the substantial difference here? Well they are completely different systems functioning in completely different ways and only looking at one of the four factors isn't doing any favors.
    - tpmoney 1y ago
      I believe we’re in violent agreement here, because my point was that all 4 aspects are equally important and they need to be evaluated as a whole. And further that the current legal rulings on these systems delve into each of those parts with much more nuance and care than the provided 56 word surface level examination of the issues
drivebyhooting 1y ago
> And so far in the US, training and using an LLM has been ruled by the courts to be fair use so long as the materials used in the training were obtained legally. Just like OpenAI is rightfully upset if their LLM output is used to train a competitor’s model and might seek to restrict it contractually, publishers too may soon have EULAs just for reading their books.
- artninja1988 1y ago
  I don't think they are rightfully upset at all. Yeah, no kidding. Everyone becomes pro rent seeker when it suits them. Which is the exact reason we must rain it in
  - drivebyhooting 1y ago
    I misspoke. I should have written “understandably upset”.
- tpmoney 1y ago
  OpenAI's hypocrisy on this matter is precisely why hackers should be taking this as the best opportunity we've had in decades to scale back the massive expansions that Disney et al have managed to place on copyright. But instead of taking advantage of the fact that for once someone with funding and money can go toe to toe with the big publishers and that in doing so they will be hoist on their own petard, a lot of hackers appear to be circling the wagons and suddenly finding that they think this whole "IP" thing is good actually and maybe we should make copyright even stronger. Surely making copyright even stronger (and even expanding it to cover style as some have argued in response to the Ghibli style stuff) will have no unintended consequences going forward into a future where more and more technology is locked down by major manufacturers with a strong incentive to use and abuse IP law to prevent competition and open alternatives... right?
  - drivebyhooting 1y ago
    GenAI art is like counterfeit goods. If left unchecked it will mostly destroy the market for the original.

AnthonyMouse 1y ago

It seems like you're responding to a question about training by talking about inference. If you train an LLM because you want to use it to do sentiment analysis to flag social media posts for human review, or Facebook trains one and publishes it and others use it for something like that, how is that doing anything to the market for the original work? For that matter, if you trained an LLM and then ran out of money without ever using it for anything, how would that? It should be pretty obvious that the training isn't the part that's doing anything there. And then for inference, wouldn't it depend on what you're actually using it for? If you're doing sentiment analysis, that's very different than if you're creating an unlicensed Harry Potter sequel that you expect to run in theaters and sell tickets. But conversely, just because it can produce a character from Harry Potter doesn't mean that couldn't be fair use either. What if it's being used for criticism or parody or any of the other typical instances of fair use? The trouble is there's no automated way to make a fair use determination, and it really depends on what the user is doing with it, but the media companies are looking for some hook to go after the AI companies who are providing a general purpose tool instead of the subset of their "can't get blood from a stone" customers who are using that tool for some infringing purpose.