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Comment by dkjaudyeqooe | Hacker News Reader

> It's likely that generative AI in general will be deemed fair use

Everybody seems to be saying this, but I really don't think there's even 50% chance of it happening.

Google books was fair use because it was a public benefit and did not take away from publishers or authors, to the contrary it helped people find their works.

Compare generative AI which extracts the essence of people's works and recreates similar works (in terms of style, etc) while cutting out the original authors completely. This potentially denies them the fruits of their labor. It's notable that it's a purely mechanical process and no human creativity is involved, except that which is extracted from other authors. Mere prompts don't count.

The argument you're suggesting will hold is essentially "yes we're using copyrighted works, but we're doing it at scale and blending it, so that's ok".

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>extracts the essence of people's works and recreates similar works (in terms of style, etc) while cutting out the original authors completely.

Only if you ask it to. At which point the person asking is at the very least culpable as well of violating someone's IP.

It is also illegal for me to pay someone to write Micky Mouse fan fiction (though if I don't publish it, this gets more murky).

> The argument you're suggesting will hold is essentially "yes we're using copyrighted works, but we're doing it at scale and blending it, so that's ok".

I want to flip this on its head: the argument you are suggesting is essentially "LLMs should be illegal because they can be asked to break copyright at scale!" It isn't illegal to be an author for hire, even though someone could potentially ask you to write fan fiction for their personal collection in the style of Tolkien, but because an LLM can do it at scale, it is illegal?

Both Napster and the Pirate Bay founders argued that only users could be held responsible, since it was the user who requested the infringing files. It did not stop the courts.

Anyone could use those tools to download creative common files and linux ISO, but those arguments did not succeed in the legal system. Bittorent as a technology was however not made illegal, as could be seen in games using it to distribute patches.

Napster and the Pirate Bay struggled because the vast majority of content was pirated. You would be hard pressed to say a significant minority of generative ai has any copyright issues, much less copyright issues as blatant as straight piracy.

I’m not convinced any of the output of these generative AI is free from copyright issues. Consider, a ROT13 copy of a book may at first glance look nothing like the original, but distributing digital copies would be clear copyright infringement.

Feature extraction is literally a form of lossy compression. You can prod DALEE to make obvious copies of some of the works it was trained on, but even seemingly novel images could contain enough similarities to training material to be problematic.

I think this is basically the same as the sentiment that there is no such thing as a truly novel idea.

The standard isn’t “I think that looks like an Andy Warhol picture”, it is “That is substantially similar to a specific Andy Warhol piece”. Copyright doesn’t protect style.

> Feature extraction is literally a form of lossy compression.

This is one way think of neural nets, another is that they find the topological space of pictures.

But these are just models of computation, which aren’t especially relevant in the same way that it isn’t relevant what produces an infringing image, just that it is produced.

Which brings me back to my original point: there are a two different barriers for generative ai: is the model itself transformative, and is the primary purpose of the model to generate copyright infringing material.

With respect to the first… I have no idea how someone could argue that the model itself isn’t transformative enough. It isn’t “substantially similar” to any of the works that it is trained on. It might be able to generate things that are “substantially similar”, but the model itself isn’t… it’s just a bunch of numbers and code.

Regarding the second: I have less experience with image models, but I use chatgpt regularly without even trying to violate copyright, and I don’t think I’m alone, so I doubt you could make an argument that llms have a primary purpose of committing copyright infringement.

> it’s just a bunch of numbers and code

That really doesn’t fly legally because any digital format is ‘just’ numbers.

Yes, you are correct, I was being flippant.

But I think the greater point still stands. In order to call the model itself a copyright violation you would have to say it is "substantially similar" to thousands of original works. Then in order to make it illegal you would have to say it wasn't "transformative enough" to be considered fair use.

I can't come up with an argument for either one of those points that holds any water at all.

Copyright is not cooties. For something to be infringing it has to be beyond the de minimis threshold. It’s not enough to show that a copyrighted work influenced another work, there needs to be some substantial level of copying.

This music industry has been going through exactly this for the last few years and the courts have recognized that the creative process necessarily involves copying and that a small amount of copying is not infringement.

The de minimis threshold is shockingly low as seen in various successful lawsuits.

Critically it’s not just a question of what percentage of a work is a copy of the original but what of the original work was copied. IE copying 3 lines in a book is a tiny fraction of the book but if you coped half the poem it’s well past the de minimis threshold.

Similarly only a small percentage of a giant library of MP3’s comes from any one work, but that’s not relevant.

Exactly, but the kinds of things that Copilot is taking are necessarily very generic. It’s not going to be taking the “special sauce” from an open source project, because that is very unlikely to be the most probable continuation of any prompt that would occur in normal usage.

Copilot is taking things like “reverse a string” or “escape HTML tags”, that have very little originality to start with. This kind of common language is analogous to the musical motifs that have been also found to be under the threshold.

The foundational models most coding models are built on May have comments and code in them. They’re almost certainly built on a number of legal violations, including copyright infringement. I have details in “Proving Wrongdoing” section here:

https://www.heswithjesus.com/tech/exploringai/index.html

I’ve also seen GPT spit out proprietary content word for word that’s not licensed for commercial use that I’m aware of. They probably got it from web crawling without checking licenses.

What I want more than anything in this space right now are two models: all public domain books (eg Gutenberg); permissive code in at least Python, JavaScript, HTML/CSS, C, C++, and ASM’s. One layered on the other but released individually. We can keep using that to generate everything from synthetic data to code to revenue-producing deliverables. All with nearly zero, legal risk.

The problem with this line of thinking is that a person can also cut and paste code that they don’t have a license to use… but until they do, they haven’t done anything wrong by reading the code.

So either we carve out an explicit exception that machines aren’t allowed to do things that are remarkably similar to what humans do… which would be a massive setback for AI in the US.

Or we agree that generative models are subject to the same rules that humans are — they can’t commit copyright infringement, but are able to appropriately consume copyrighted material that a human would be able to consume.

The second option seems to me to be much simpler, nicer, and more appropriate than the first.

I agree with you. In fact, the latter is in my Alternative Models section.

Yeah they seem to be applying legal theory like programming code. If what they said about Napster applied to every website then literally every site with user generated content would be instantly wiped off the internet.

> You would be hard pressed to say a significant minority of generative ai has any copyright issues, much less copyright issues as blatant as straight piracy.

Where generative AI ingests copyrighted works in order to work and bases its output on it, then it is copyright infringement, equivalent to 'straight piracy' of all that it ingested, unless it's deemed fair use.

What Google does with its search engine, for example, is fair use, what Napster did was not.

I suspect that your extreme position must come with a sincere belief that nothing even close to human intelligence will ever be achieved. Imagine a robot with an AI brain. It would have to be blindfolded because just by learning to recognize, or even just viewing, the label on a can of Coke it would have “copied” it and become “illegal,” especially if it was capable of sketching it on demand. Any kind of intelligence cannot even simply view or listen to the world without encountering something IP-encumbered.

Learning, by human or machine, means extracting a copy of the essence of something and yes, storing that essence in a lossy way. It seems like learning from copyright-encumbered material ought to either be illegal for both, or legal. I know which world I would rather live in.

>Where generative AI ingests copyrighted works in order to work and bases its output on it, then it is copyright infringement

This is an absurd standard. Is it copyright infringement when a human "ingests" copyrighted work and bases their output on it? Because that's commonly called inspiration and is how every artist creates their work - through experiencing other works and using that cumulative inspiration to form their own product.

Copyright infringement is already ridiculously restrictive as it is, this proposal not only fundamentally misunderstands how generative AI works but penalises AI for doing what humans do everyday.

Yes, but I believe there are two questions here:

* Does the model itself violate copyright? * Does the output of the model violate copyright?

I don't know how you could make an argument that the ingestion of information into a model through a training procedure in order to create something that can generate truly unique outputs isn't transformative of the original works. The legal standard for a new work to be considered a copyright violation of an original work is "substantial similarity". I don't know how you can make an argument that a generative model is "substantially similar" to thousands of original works...

Honestly, I'm not even sure if "fair use" comes into play for the model itself. In order for fair use to come into play, the model has to be deemed to be violating some copyright. Only once it is found to be violating does "fair use" come into play in order to figure out if it is illegal or not.

The second question is the one where fair use is likely to come into play more. And this question has to be asked of each output. The model's legality only becomes an issue here if, like Napster, you can't argue that the model has much point other than violating copyright. Napster didn't violate copyright (the code for Napster wasn't infringing on anything), but it enabled the violation of copyright and didn't have much point other than that.

I don't think you can make that argument though. I use ChatGPT most days, and I've never gotten copyrighted material out of it. I could ask it to write me some Disney fan fiction, which would violate a copyright. And I think there is a valid legal question here about who is responsible for preventing me from doing that. This is where I think the gray area is.

Those tools overwhelmingly supported pirate means, nearly no one was downloading actually legal public domain songs or Linux ISOs from there. I contrast with LLMs and generative AI, people are using them for actual work, not for piracy, which will be seen differently by the courts.

> Only if you ask it to.

This isn't necessarily true. It's entirely possible for a model to regurgitate a chunk of GPL'd code without you knowing that's what it's done.

True, though I’m not sure this risk isn’t overblown. I’ve heard of a couple cases where someone got a copyright statement spit out, but I haven’t been able to find much more than the one or two that I’ve seen on hn. If you have more examples, I’d love to hear about them.

Code is also tricky: there are a finite number of ways to write an algorithm, and I’m sure both that multiple people have written the same version of left pad for example, and that it is not possible to copyright something small like that. When the code gets bigger, the likelihood of an llm spitting out large chunks of GPL’d code seems vanishingly small (without asking for something specific like that). Though I’d love to see examples to the contrary.

https://twitter.com/DocSparse/status/1581461734665367554 is the one I was thinking of. It's not just the copyright header in that case.

Interesting, though I think I would put those examples under a “will emit copyrighted code if prompted to”. I can’t think of a compelling reason someone would prompt for a sparse matrix function with a “cs_” unless they were searching for copyrighted code they knew existed.

Though that is definitely a simpler prompt than I would have expected was necessary to get such a result. Thanks!

(The first example also isn’t the same code. It is very close, and definitely similar in style, but it isn’t clear that code would a)run, or b) would work as expected. I need to sleep though, so I’m not sure how much that matters.)

> yes we're using copyrighted works, but

There’s no law against “using” copyrighted works, there is a law against copying and distributing them.

Fair use analysis doesn’t come into play unless we’re dealing with clearly established copyright infringement. What LLMs do doesn’t clearly qualify as any of the behaviors reserved to copyright owners. For example, it certainly doesn’t “copy” the things it’s trained on by any legal definition.

Law works on precedent and analogy when there’s no clearly on-point statutes or case law. The most analogous situation to what transformer models do is a person learning from experience and creating their own work _influenced_ by what they’ve observed. That behavior is not copyright infringement by any stretch of the imagination. The fact that it’s done with a computer is not as important as people seem to think it is.

> For example, it certainly doesn’t “copy” the things it’s trained on by any legal definition.

What about pictures still containing watermarks? Regardless of the actual legality, this does not fit "certainly".

> The most analogous situation to what transformer models do is a person learning from experience and creating their own work _influenced_ by what they’ve observed

No, it is not. It is called machine "learning" so clearly that is a fly made out of butter. Maybe courts will agree, maybe they won't, but the analogy to human learning is quite strenuous at best.

Here is the section of title 17 that defines the rights of copyright holders and what terms like “copy” mean in US law. It’s clear as mud but I feel it’s likely that the process of training neural network weights is not going to be held as equivalent to verbatim digital copies. It’s just not the same thing and the law has no clear provision for it, except by analogy to existing human creative processes.

https://www.copyright.gov/title17/92chap1.html#106A

The most closely applicable existing law is that of “derivative works” but those require human authorship, so it’s far from clear that those would apply to AI output either. Ultimately this is going to be hashed out in the courts until some actual laws are written to deal with it.

(IANAL)

> It’s clear as mud but I feel it’s likely that the process of training neural network weights is not going to be held as equivalent to verbatim digital copies.

It's taking verbatim digital copies and using a form of lossy compression to transform them, which I think is clear when looking at things like auto-encoders.

Isn’t your brain doing the same thing when it reads text or views a painting? Some people can even memorize and precisely recreate the things they’ve seen. But no one considers the process of lossy storage in human memory to be copyright infringement. Instead the later reproduction itself might be infringing. I think it will be the same here. Training models on copyrighted content won’t fall afoul of any existing law, instead legal challenges will have to be aimed at specific instances where the models produce output that arguably infringes copyright.

That’s inconvenient for opponents of this technology because they would prefer to ban the training itself, but there’s not a good justification under existing law to do this.

Ultimately I find that commoditization enables the purest form of the banality of evil.

Commoditized goods allows the bad to be sorted in with the good, allowing a price to be put on the commodity. Great where it's applicable but horrendous when it's improperly done - ie, home loans, or intellectual property.

If your commodity markets aren't properly regulated you get a race to the bottom. If you are trying to commoditize something that shouldn't be, it's effectively enables white-collar looting or money laundering.

First, style is not copyrightable. I could draw something in a Studio Ghibli style and they could do nothing about it, legally speaking.

Second, the way we've seen generative AI be used is not really the same as it was touted originally, that a mere prompt could replace an entire artist's work. A year later, we see that most people, artists included, don't use it as a verbatim text to image machine, they use it as a tool. See apps like ComfyUI or others which allow Node based or layer based image creation and editing, which even Photoshop now has. It's the same as Copilot and ChatGPT, it's not replacing any programmers, just increasing their productivity Given that, it is not looking like generative AI is hurting one's professions, quite the opposite.

While there are no IP protections for “style” there are certainly elements that are covered. Particular colors be trademarked, characters can be copyrighted separately from the works they appear in, design patents are a thing that cover more than most folks realize.

I don’t think any but the most copyleft segment of society thinks it would be reasonable for a generative AI trained on exactly one persons work to be used for profit by someone else.

An AI trained on two or ten people’s work probably feels the same for most folks, but what about when it’s thousands or millions? What if instead of one persons work it is the works held in copyright by an entity like Getty Images?

> I don’t think any but the most copyleft segment of society thinks it would be reasonable for a generative AI trained on exactly one persons work to be used for profit by someone else.

Why do you think that? It doesn't seem obvious to me at all.

Well imagine you created a novel generator that just cut-and-paste whole sentences from the Harry Potter books to create a new Harry Potter, and posted it online. Now, as long as this was done as a just a bit of fun, non-commercial, I feel like that likely should be allowed as fair use (whether it actually would is not the point), though borderline. If you tried to sell it, definitely too far.

So I think "used for profit" is quite key.

But another example is someone writing and selling a reference guide to Tolkien's mythos that catalogues the content of his novels. And we would say that should be allowed, though that could be taken too far as well, for example it could duplicate the material in the appendices to LoTR.

You can make trademarked colors with microsoft paint…

> First, style is not copyrightable. I could draw something in a Studio Ghibli style and they could do nothing about it, legally speaking.

Meanwhile, drawing Mickey ears on the wall of a kindergarten is not safe.

If you feel strongly that generational ML somehow launders copyright out of the bits, train an image generator purely on Disney copyrighted material and share the model on the web, see how well that works out.

Training purely on Disney's images would probably be difficult, considering the huge amount of images you need to train a model from scratch. But here is a "fine-tuned Stable Diffusion model trained on screenshots from a popular animation studio". Seems to have worked out quite well so far as that model was last updated last year.

https://civitai.com/models/24/modern-disney

"Modern Disney" is neat, I wasn't aware of that. Just so you know, The Mouse is much more fierce about protecting their classic properties like Mickey Mouse or Donald Duck, so this doesn't quite demonstrate my point yet.

Mickey (who will enter the public domain soon) is a specific expression and both copy righted and trademarked.

> First, style is not copyrightable

Wasn't suggesting it is. The point is that the tool is used to create things that substitute for the original authors' work by ingesting the works of those authors. The impact of the copying matters when weighing fair use.

If I use your copyrighted works to supplant you in some way, even as a part of a large group, then it's unlikely to be deemed fair use.

Ghibli style is probably trademarked. Different thing. Outline width, color palette, ambient noises, musical style, how the eyes and hands are drawn, when used together, would be possible to trademark I would think.

> Google books was fair use because it was a public benefit

What are the odds the market leaders in LLM right now are just the current day version of Borland-style compilers before open source takes it over?

I've heard arguments the infrastructure part is a long term barrier to entry for OSS development, which will continue to remain in the future. But I don't know enough about it.

Who knows maybe the legal/gov world will move slow enough to miss the bulk of the money-extraction opportunities before OSS takes over and the reality of this problem never going away fully kicks in.

You'd need millions of dollars to just compile and label datasets. The training itself requires a lot of resources and money, as does human reinforcement.

Open source models would need benefactors with deep pockets.

Copilot makes open source developers and contributors that much more productive which is a public good.

Indeed. Further to this, training on data involves copying it. To do so without permission robs authors of the right to contract their work for this training, either to OpenAi or any other third party.

Every kind of web crawler has to copy data. If that part of the AI training is illegal for that reason then every web crawler ever is suddenly declared automatically illegal.

Web crawlers generally allow sites to remove them from the index.

Are there any crawlers used for commercial purposes which refuse to remove sites from an index if they ask? The distinction from OpenAI is that there is no way to be removed from openai's training set.

You can remove yourself from the crawler not but not from what they previously crawled.

BIf a copy of the downloaded file is redistributed or used in possibly other ways that infringe on copyrights, THAT I could understand, but suddenly making the act of just downloading the file (assuming it is made legally available to the public). But if the downloaded file is analyzed by some software and then thrown away, I don't see how that is infringing copyrights, more than say downloading an image to decompress it and scale it to display on a screen (then throw it away once it is no longer needed).

So many downthread comments pulling out the computers and brains are exactly the same meeeerrrrrr BS.

"I'll keep saying it every time this comes up. I LOVE being told by techbros that a human painstaking studying one thing at a time, and not memorizing verbatin but rather taking away the core concept, is exactly the same type of "learning" that a model does when it takes in millions of things at once and can spit out copyrighted code verbatim."

(I also love it when they're deliberately obtuse about it too. The past decade has made me sick of this trolling tactic.)

Could you please stop posting unsubstantive comments and/or posting in the flamewar style? It's not what this site is for, and destroys what it is for.

If you wouldn't mind reviewing https://news.ycombinator.com/newsguidelines.html and taking the intended spirit of the site more to heart, we'd be grateful.

p.s. Also, please don't copy/paste comments on HN.

> Everybody seems to be saying this, but I really don't think there's even 50% chance of it happening.

That's true it's probably 99% plus it happening or at-least that's the conclusion that the experts and lawyers hired to help evaluate AI startup valuations are coming too. Hired by banks, venture funds, short selling shops, etc plenty of people who don't depending on it being ok to make money.

> "yes we're using copyrighted works, but we're doing it at scale and blending it, so that's ok"

I mean you know collages are legal right? You literally take 100s of copyrighted pictures and put them together and suddenly it's perfectly legal and ok.

Art made from a collage of, say, magazine photos does not supplant or substitute for the magazine photos which is why it's much more likely to be deemed fair-use. Despite the collage using perhaps large portions of the copyrighted photos, it is nonetheless transformative in the sense that no-one is deciding to buy the collage art instead of the magazine photo.

Contrast LLM-created code which is certainly a substitute for the original copyrighted work.

> you know collages are legal right

Only if it’s sufficiently transformative. There was recently a case that hit the US Supreme Court about this subject regarding an Andy Warhol adaptation of a portrait of Prince [1]. So, in the US, fair use in this regard requires some amount of substantive transformation of the material. But, as we are talking about AI algorithms, there isn’t a person in between the model and the training data. The argument here is whether or not a person is required to make a transformative use of the material (and thus fair use applies). Given that AI generated (and non-human animal generated) works aren’t copyrightable due to the lack of human involvement, I’d wager that any AI use of copyrighted material won’t get fair use protections.

[1] https://www.eff.org/deeplinks/2023/05/what-supreme-courts-de...

You really think AI startups are valued based on the opinions of lawyers and experts? They’re valued based on whether the investors think they can find a bigger fool to hold the bag.

> I mean you know collages are legal right? You literally take 100s of copyrighted pictures and put them together and suddenly it's perfectly legal and ok.

Really? When has this been done?

You've never seen a collage?

I've never seen one go to court

I won't debate that no 'human' creativity is involved, but human brains are a purely mechanical process, and that's where human creativity originates (unless one invokes the supernatural).

LLMs are typically implemented in a way that makes them non-deterministic (i.e. temperature > 0).

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