I publish a copyrighted article. Some LLM ingests it without permission, but since the output of that LLM is sufficiently different from my source article there is no violation.
I publish copyrighted code. Some company decides to consume it without purchasing a license. The product they distribute is vastly different from my code itself, but I can still sue them into oblivion.
What's the difference between the two?
No you can't. If a company reads your copyrighted code, then writes up a spec and sends it to another team that writes up code that accomplishes what you did, that doesn't violate copyright and you wouldn't be able to sue them into oblivion.
Isn't the analogy more: an employee at a company reads your copyrighted code, along with many other pieces of code, and produces a new piece of code? Your code influenced the output, but in no way can you a) detect that influence b) assert any copyright over the output.
In your analogy, your code is still "in tact" within the new product; that's not the case with LLM-produced output.
My personal opinion is that training a model isn't infringing the copyright. But generating outputs can, if they are sufficiently similar. And since the model itself can't be liable for such infringing works, I think the creator of the model should be responsible.
A different situation is you read a copyrighted news article and write the facts from it in your essay. Since the copyright of the news article only extends to creative expression and not factual information, there is no violation. For me, it is hard to tell what difference there is between this situation and an LLM identifying statistical patterns in the news article.
This is fine for actual facts(with some caveats) but how should it apply for creative works like a novel ?