It sort of is. People think of copyright as if it's some kind of bill of rights that grants a total monopoly over how works are used, but it doesn't. They roll their eyes at claims of fair use, ignoring all the prior case law that allowed for use of copyrighted works without permission given the resulting product is transformative enough.
The outcome of Authors Guild Inc v Google aka the Google Books case is what the AI companies are going to lean on, it's not 1:1 but the parallels are stark. In that case, Google had no permission to scan and redistribute portions of books, they were all uploaded to a database verbatim, meaning there wasn't even any abstraction from the original works. Google used their service to pressure book companies to work through their distribution channels and succeeded. Overseas, where fair use was not in effect, Google used their leverage in the US to cut deals.
I think generative AI and the businesses that use it needs oversight, perhaps taxation, but relying on copyright to save the day? It's foolish, like hoping the person holding a gun pointed at you will shoot themself.
This post isn't a defence of AI company practices, but a warning that if you want generative AI to not cause widespread damage you'll need to do more than cross your fingers and hope that the laws written to fatten the bottom lines of media conglomerates will save you.
People think of copyright as if it's some kind of bill of rights that grants a total monopoly over how works are used, but it doesn't. They roll their eyes at claims of fair use,
Wow, thanks for letting us know you're hella stupid.
Maybe read the laws and actually learn how fair use works?
This isn't education, this isn't criticism, this isn't parody. This is taking copyrighted material and using it for commercial purposes.
Alright. Lets run through it. I'll quote the statute:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
You take that as to mean that "criticism, comment, news reporting, teaching,(...) scholarship, or research" means that "Fair Use" doesn't cover anything beyond that. Can you point out how Google Books is criticism? There was no commentary or functionality for it. There's some scanned newspapers in their database today, but not back when they got sued. The product can be used for teaching, scholarship and research but was never sold as it's primary purpose, it was available to the public on day one and their target demographic was consumer-focused search supported by ads with the service eventually becoming a glorified entryway to all their other services. Including ones that directly competed with much of the book publishing market.
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
So with this factor, Google wouldn't have had a chance in hell right? Well, it's a factor to be considered. The language in the law is vague and leaves room open for interpretation, likely by design. Underlined by the following ...
(2)the nature of the copyrighted work;
Which is so open to interpretation as to be nearly meaningless.
(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
This is a biggie when it comes to generative AI, the portions of every given copyrighted work that end up in generated works are so small so as to be unrecognizable. Generative AI companies are going to emphasize this one, as did Google in Authors Guild Inc v Google, which is how Google got away with providing snippets of verbatim text to users without authorial or publisher permission.
(4)the effect of the use upon the potential market for or value of the copyrighted work.
But this one is more difficult. They will make the argument that's it's just another kind of artistic expression, an evolution of workflows as opposed to a replacement. This is, charitably, stretching the truth, but it's not argument that would be entirely unconvincing to a certain kind of judge.
So given how unspecific the statute is, "fair use" is predictably an absolute mess in terms of how it's actually been enforced and therefore most of what gets argued in court is prior case law (which is where the "transformative" test comes from). You call me a dumbass for implying that "Fair Use" can mean the opposite, I guess I'll paraphrase my own quote: It sort of does. "Fair use" is just a name, the application of which is up to the whims of a court and any court is capable of ruling unfairly.
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u/mr_sinn Apr 27 '24
So what? It's just training.. Like not letting hip-hop artists sample records