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> 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 fe

> 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.
    - tpmoney 1y ago
      > 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. To the best of my understanding of the law, making whole copies of a work for other people to then make fair use of is generally not considered fair use. There are some narrow cases where it has been; the two that come to mind are a case (whose name escapes me) that found reproducing an entire editorial for commentary and discussion on a discussion forum was fair use and a handful of cases regarding whether a print shop is liable for copyright infringements if a customer orders a copy made of a work. Likewise the person downloading it can't be making fair use of the work unless they already have a copy of the work they have legally obtained. This was a key point of the Anthropic case, the use of legally purchased or acquired books was fair use, the use of the copies obtained only via piracy were not. I don't recall if Alsup addressed it specifically in his ruling, and to the best of my knowledge otherwise no rulings have ever been made on the legality of "I own a legal copy of this work, and I am acquiring a copy made from someone else's legal copy for fair use purposes" (this is often the theory behind why downloading ROMs if you own the game already could be legal). > How is it unlike borrowing a book from the library and quoting an excerpt from it in your criticism? Libraries have been something publishers have hated for a long long while. They routinely try to extort massive amounts of money out of them (see separate pricing for "library" copies of media, maximum lending count limits on "library" ebooks etc). One of the reasons is that a library as you point out sort of puts a big dent in the "fair use derives from ownership / first sale doctrine" idea. Again, to the best of my knowledge, cases involving using library copies just tend to get their own set of rules, and are also probably just fewer and farther between because it's unlikely you can convince a library to let you just scan all of their books regardless of the legality of you doing so. As for the partnership thing, my point was mostly that any legal entity that can jointly own property would have to be the owner of a work for people within that entity to distribute copies between each other, and that once a person leaves the legal entity they could no longer keep or obtain copies of works owned by the entity.

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.
  - tpmoney 1y ago
    > 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. To the best of my understanding of the law, making whole copies of a work for other people to then make fair use of is generally not considered fair use. There are some narrow cases where it has been; the two that come to mind are a case (whose name escapes me) that found reproducing an entire editorial for commentary and discussion on a discussion forum was fair use and a handful of cases regarding whether a print shop is liable for copyright infringements if a customer orders a copy made of a work. Likewise the person downloading it can't be making fair use of the work unless they already have a copy of the work they have legally obtained. This was a key point of the Anthropic case, the use of legally purchased or acquired books was fair use, the use of the copies obtained only via piracy were not. I don't recall if Alsup addressed it specifically in his ruling, and to the best of my knowledge otherwise no rulings have ever been made on the legality of "I own a legal copy of this work, and I am acquiring a copy made from someone else's legal copy for fair use purposes" (this is often the theory behind why downloading ROMs if you own the game already could be legal). > How is it unlike borrowing a book from the library and quoting an excerpt from it in your criticism? Libraries have been something publishers have hated for a long long while. They routinely try to extort massive amounts of money out of them (see separate pricing for "library" copies of media, maximum lending count limits on "library" ebooks etc). One of the reasons is that a library as you point out sort of puts a big dent in the "fair use derives from ownership / first sale doctrine" idea. Again, to the best of my knowledge, cases involving using library copies just tend to get their own set of rules, and are also probably just fewer and farther between because it's unlikely you can convince a library to let you just scan all of their books regardless of the legality of you doing so. As for the partnership thing, my point was mostly that any legal entity that can jointly own property would have to be the owner of a work for people within that entity to distribute copies between each other, and that once a person leaves the legal entity they could no longer keep or obtain copies of works owned by the entity.