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Comment by shadowgovt | Hacker News Reader

There's actually a lot of court activity on this topic, but the law moves slowly and is reluctant to issue injunctions where harm is not obvious.

It's more that the law about "one guy decides to pirate twelve movies to watch them at home and share with his buddies" is already well-settled, but the law about "a company pirates 10,000,000 pieces to use as training data for an AI model (a practice that the law already says is legal in an academic setting, i.e. universities do this all the time and nobody bats an eye)" is more complicated and requires additional trials to resolve. And no, even though the right answer may be self-evident to you or me, it's not settled law, and if the force of law is applied poorly suddenly what the universities are doing runs afoul of it and basically nobody wants that outcome.

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What’s ironic to me is that had these companies pirated only a single work, wouldn’t that be a chargeable crime?

Clearly Bonnie and Clyde shouldn’t have been prosecuted. Imagine they were just robbing banks for literary research purposes. They could have then used the learnings to write a book and sell it commercially…

Or imagine one cracks 10000 copyrighted DVDs and then sells 30 second clips… (a derived work).

To me, for profit companies and universities have a huge difference — the latter is not seeking to directly commercially profit from copyrighted data.

There is a distinction that must be made that very few people do, but thankfully the courts seems to grasp:

Training on copyright is a separate claim than skirting payment for copyright.

Which pretty much boils down to: "If they put it out there for everyone to see, it's probably OK to train on it, if they put it behind a paywall and you don't pay, the training part doesn't matter, it's a violation."

So if I download copyrighted material like the new disney movie with fansubs and watch it for training purposes instead of enjoyment purposes it's fine? In that case I've just been training myself, your honor. No, no, I'm not enjoying these TV shows.

Because it's important to grasp the scale of these copyright violations:

* They downloaded, and admitted to using, Anna's Archive: Millions of books and papers, most of which are paywalled but they pirated it instead

* They acquired Movies and TV shows and used unofficial subtitles distributed by websites such as OpenSubtitles, which are typically used for pirated media. Official releases such as DVDs tend to have official subtitles that don't sign off with "For study/research purpose only. Please delete after 48 hours" or "Subtitles by %some_username%"

I don't know what is confusing here, perhaps my comment isn't clear.

If you skirt payment, its a violation. If it's free, but still copyright, it's likely not a violation.

They've done both, so my confusion is about why you are bringing this up?

OpenSubtitles has nothing to do with pirated media. Transcripts/translations are fair use. Their own use case is fair use as well.

OpenSubtitles is almost exclusively used with pirated media. Official copies come with official subtitles. OpenSubtitles itself is legal, but that's not the point at all.

Whether it’s legal slash fair use to train on copyrighted material is only one of the questions currently being asked though. There’s a separate issue at play where these companies are pirating the material for the training process.

By comparison, someone here brought up that it might be transformative fair use to write a play heavily based on Blood Meridian, but you still need to buy a copy of the book. It would still be infringement to pirate the e-book for your writing process, even if the end result was legal.

If they would buy material at a large scale, the seller might require them to sign a contract that requires royalty if the material is used for training an AI. So buying legally is a way to put yourself into a trap.

What is the precedent on that kind of agreement?

The only thing I've been able to find is the note that since copyright is federal law, state contract law actually can't supersede it, to wit: if you try to put a clause in the contract that says the contract is void if I use your work to make transformative fair-use works (or I owe you a fee), that clause is functionally unenforceable (for the same reason that I don't owe you a fee if I make transformative fair-use works of your creations in general).

They can buy individual works like anyone else.

Or they can negotiate a deal at scale with whatever price / restrictions make sense to both parties.

I don’t see a way they could be “trapped”. Worst case they pay retail price.

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