Crazy that this is not fair use but ai is.
* Their "transformation" argument comes down to easing access, which has already been shot down in previous cases; unsurprising, since Napster could make the same argument.
* Their "nature of the work" argument came down to the fact that some of the books they scanned were nonfiction.
* They made a halfhearted attempt to claim that "amount and substantiality" weighed neutrally in this case, despite copying entire books wholesale and making them available in their entirety.
* They brought experts to make their "commercial impact" argument who limited their analysis to physical books(?!) despite the publishers coming to the case with competing ebooks.
It's wild to me they thought they could win this case. There's the law as people at IA and on message boards want it to be, and there's the law as it is. For people who want those two concepts to come closer together, this case seems like a major setback and an egregious strategic blunder.
So this is about stripping people from their rights regarding to books made with a new technology.
Not how our retina, the optic nerve, visual cognition or visual recall work.
But you don't lose your recollection of the book contents.
* the purpose and character of the use
* the nature of the copyrighted work;
* the amount and substantiality of the portion used in relation to the copyrighted work as a whole
* the effect of the use upon the potential market for or value of the copyrighted work.
In the AI use case, they're typically aiming not to output any significant part of the training data. So they could well argue that the use is transformative, reproducing only minimal parts of the original work and not competing in the market with the original work.
Libraries would be illegal if conceived of today. If this weren't digital it would be a violation of first sale doctrine.
Just shows how far forward we have progressed. Maybe book burnings next to prevent resale?
"if a book is in high demand in a library, you'd either have to wait your turn or purchase one yourself to avoid the lending queue."
> "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."
> In the AI use case, they're typically aiming not to output any significant part of the training data
What they’ve aimed to do and what they’ve done are two different things. Models absolutely have produced output that closely mirrors data they were trained on.
> not competing in the market with the original work
This seems like a stretch, if only because I already see how much LLMs have changed my own behavior.
These models exist because of that data, and directly compete by making it unnecessary to seek out the original information to begin with.
And yet, the IA is 100% aiming to absolutely reproduce literally every part of the work in a 100% complete manner that replaces the original use of the work.
And you cannot bring yourself to admit that the IA is wrong. When you get to that point you have to admit to yourself that you're not making an argument your pushing a dogma.
The point more generally is that there’s an asymmetry in how people are thinking about these issues, and to highlight that asymmetry.
If it turns out after various lawsuits shake out that LLMs as they currently exist are actually entirely legal, there’s a case to be made that the criteria for establishing fair use is quite broken. In a world where the IA gets in legal trouble for interpreting existing rules too broadly, it seems entirely unjust that LLM companies would get off scott free for doing something arguably far worse from some perspectives.
What publishers argue is that you cannot treat digital books like physical ones; i.e. you cannot re-sell or lend (like IA did) a digital book.
What LLM do is that they use copyrighted content for profit and do not lend anything.
AI absolutely competes in the market with the original works it trains on, and with new works in those same markets. Proponents of unrestricted AI training loudly tout and celebrate that it does so.
Which would be fine, if everyone else had the same rights to completely ignore copyright. The asymmetry here seems critically broken.
If this falls under anything it falls under the first sale doctrine.
I generally side with publishers and artists on the generative AI debate, but I'll at least concede that they have some grounds for a fair use argument based on the transformative (legal jargon meaning, not buzzword meaning) nature of the work they're doing.
(IANAL, just guesing, etc etc.)
Probably not all that legit, but arguably thats where we're headed anyway :/