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Comment by AnthonyMouse | Hacker News Reader

> That is, he ruled that

> - buying, physically cutting up, physically digitizing books, and using them for training is fair use

> - pirating the books for their digital library is not fair use.

That seems inconsistent with one another. If it's fair use, how is it piracy?

It also seems pragmatically trash. It doesn't do the authors any good for the AI company to buy one copy of their book (and a used one at that), but it does make it much harder for smaller companies to compete with megacorps for AI stuff, so it's basically the stupidest of the plausible outcomes.

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These are two separate actions that Anthropic did:

* They downloaded a massive online library of pirated books that someone else was distributing illegally. This was not fair use.

* They then digitised a bunch of books that they physically owned copies of. This was fair use.

This part of the ruling is pretty much existing law. If you have a physical book (or own a digital copy of a book), you can largely do what you like with it within the confines of your own home, including digitising it. But you are not allowed to distribute those digital copies to others, nor are you allowed to download other people's digital copies that you don't own the rights to.

The interesting part of this ruling is that once Anthropic had a legal digital copy of the books, they could use it for training their AI models and then release the AI models. According to the judge, this counts as fair use (assuming the digital copies were legally sourced).

> This part of the ruling is pretty much existing law. If you have a physical book (or own a digital copy of a book), you can largely do what you like with it within the confines of your own home, including digitising it. But you are not allowed to distribute those digital copies to others, nor are you allowed to download other people's digital copies that you don't own the rights to.

Can you point me to the US Supreme Court case where this is existing law?

It's pretty clear that if you have a physical copy of a book, you can lend it to someone. It also seems pretty reasonable that the person borrowing it could make fair use of it, e.g. if you borrow a book from the library to write a book review and then quote an excerpt from it. So the only thing that's left is, what if you do the same thing over the internet?

Shouldn't we be able to distinguish this from the case where someone is distributing multiple copies of a work without authorization and the recipients are each making and keeping permanent copies of it?

I cannot point to the case, because my entire knowledge about the legality of this stuff comes from vaguely following the articles about this case. But feel free to read the judgement in this case where it will be spelled out in much more detail.

Also, I don't quite understand how your example is relevant to the case. If you give a book to a friend, they are now the owner of that book and can do what they like with it. If you photocopy that book and give them the photocopy, they are not the owner of the book and you have reproduced it without permission. The same is, I believe, true of digital copies - this is how ebook libraries work.

In this case, Anthropic were the legal owners of the physical books, and so could do what they wanted with them. They were not the legal owners of the digital books, which means they can get prosecuted for copyright infringement.

> If you give a book to a friend, they are now the owner of that book and can do what they like with it.

We're talking about lending rather than ownership transfers, though of course you could regard lending as a sort of ownership transfer with an agreement to transfer it back later.

> If you photocopy that book and give them the photocopy, they are not the owner of the book and you have reproduced it without permission.

But then the question is whether the copy is fair use, not who the owner of the original copy was, right? For example, you can make a fair use photocopy of a page from a library book.

> They were not the legal owners of the digital books, which means they can get prosecuted for copyright infringement.

Even if the copy they make falls under fair use and the person who does own that copy of the book has no objection to their doing this?

You are talking about lending, but I'm not really sure why because it's not that relevant to the case.

If you photocopy a single page from a library book, this is often (but not always) fair use because you're copying only a limited part of the book. In the same way, you can quote a section or paragraph of a book under fair use. You cannot copy the whole book, though. Therefore:

> Even if the copy they make falls under fair use and the person who does own that copy of the book has no objection to their doing this?

If the copy had been made under fair use, then yes, this wouldn't be illegal. But it wasn't, because it was a reproduction and distribution of the entire book by someone who did not have the right to do that.

It is “established” law because the Copyright Act itself and a string of unanimous or near-unanimous appellate decisions (google ReDigi on digital transfers and Sony and the first-sale for personal use and physical lending) uniformly apply the same principles, leaving no circuit split and no conflicting precedent for the Supreme Court to resolve. In the U.S. system statutory text interpreted consistently by the Courts of Appeals becomes binding law nationwide unless and until the Supreme Court or Congress says otherwise.

Sony v. Universal is a Supreme Court case, but that's the one where they say that sort of thing is fair use rather than that it isn't. ReDigi isn't a Supreme Court case, and it seems rather inconsistent with the Sony case which is. To claim uniformity you'd then need all the other circuit courts coming to the same conclusion rather than just not having had any relevant cases there yet, but is that the case?

Do you think that Anthropic did not have the option of getting legal advice before they decided to pirate libraries of books for their own commercial purposes?

I understand that some of these things might be confusing to you, but Anthropic is absolutely within the position of being able to afford attorneys and get good advice as to what they could legally. I hope you also understand that good legal advice isn't being told what you want so you can do the thing you want to do without any regard for what are likely outcomes.

With that in mind, what do you think the inconsistency is between ReDigi and Sony?

The judge said they can train however I believe the judge did not make any ruling regarding model outputs

Thanks for the clarification!

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