* 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.
> 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.
Libraries would be illegal if conceived of today. If this weren't digital it would be a violation of first sale doctrine.
> "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."
"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."
Just shows how far forward we have progressed. Maybe book burnings next to prevent resale?