this post was submitted on 26 Jan 2024
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https://www.law.cornell.edu/wex/derivative_work
The law is very clear on the nature of derivative works of copyrighted material.
Not sure where they're getting the bit about copyright disallowing derived works as that's just not true. You can get permission to create a derived work, but you don't need permission to create a derived work so long as the final result does not substantially consist of the original work.
Unfortunately what constitutes "substantially" is somewhat vague. Various rulings have been made around that point, but I believe a common figure used is 30%. By that metric any given image represents substantially less than 30% of any AI model so the model itself is a perfectly legal derived work with its own copyright separate from the various works that were combined to create it.
Ultimately though the issue here is that the wrong tool is being used, copyright just doesn't cover this case, it's just what people are most familiar with (not to mention most people are very poorly educated about it) so that's what everyone reaches for by default.
With generative AI what we have is a tool that can be used to trivially produce works that are substantially similar to existing copyrighted works. In this regard it's less like a photocopier, and more like Photoshop, but with the critical difference that no particular talent is necessary to create the reproduction. Because it's so easy to use people keep focusing on trying to kill the tool rather than trying to police the people using it. But they're going about it all wrong, copyright isn't the right weapon if that's your goal. Copyright can be used to go after the people using generative AI tools, but not the people creating the tools.
Why? If the training weights are created and distributed in violation of copyright laws, it seems appropriate to punish those illegal training weights.
In fact, all that people really are asking for, is for a new set of training weights to be developed but with appropriate copyright controls. IE: With express permission from the artists and/or entities who made the work.
Because they aren't illegal and they don't violate copyright. People keep wanting them to be against copyright, but that's just not how copyright works. There either needs to be amendments to copyright law in order to cover this case, but those changes would need to be very carefully tailored. It would be way too easy to make something that's either overly broad and applies to a bunch of situations it wasn't intended to, or way too narrow allowing for easy circumventing.
While that might appease some people, it wouldn't appease everyone. There are a lot of workers in the creative fields that are feeling incredibly threatened by generative AI right now. Some of these fears are certainly overblown, but it's also true corporations are going to be as shitty as possible and so some regulation is probably in order. That said, once again, copyright just doesn't seem to be the right tool for the job here.
Because they are legal and they do violate copyright? People keep wanting them to be copyright free, but that's not how copyright works. There don't need to be amendments to copyright law in order to cover this case.
I mean, its obviously heading to the courts one way or the other, but I don't think just making assertions like that are very good kind of arguing. The training weights here have clearly been proven to contain copyrighted data as per this article. I'm not sure if you're making any kind of serious case that shows otherwise, but are instead just making a bunch of assertions that I could easily reverse.
It varies somewhat from country to country, but at least in the US there is ample case law that says it's legal. The relevant ruling is typically based on the work being transformative and therefore a fair use for a derivative work. This is E.G. how Google can get away with creating thumbnails of websites to show on their search pages without needing to worry about copyright of anything contained on that website.
This article proved absolutely nothing except that you can use generative AI to create images that would most likely be ruled to violate copyright. Once again though, the model and training weights do not violate copyright, they're a protected derivative work. The generated image on the other hand very likely does violate copyright.