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The (in my view) problem with the author's argument is that the first step he claims is happening, is not. Publicly available content gets read, as is the point

The (in my view) problem with the author's argument is that the first step he claims is happening, is not. Publicly available content gets read, as is the point of publicly publishing it. Then the user uses a computer program to make some statistics about the bit of content. Those bits of statistics about that specific work, on their own, cannot reproduce or recrate the specific work. Then those statistics are put into a database and combined with the stats about billions of other works. Then another program is written to query the database to make probabilistic guesses responding to the prompts from a user. It's this last stage could potentially recreate a work in an infringing manner. But everthing that led up to that point (creating the model) is simply not something that current law considers to be infringing of copyright in any meaningful way. It doesn't even require a "fair use" assessment, because, creating statistics about a work, that cannot on their own reproduce the work, does not create a copy, nor does it make a public performance of the work. Is this all terribly unfair to the people that published their work assuming this couldn't happen? Yes. But the response needs to be "lets come up with and pass better law" and not "lets twist and contort the current law to be something it's not."

simion314 3y ago
Why should a crime depend on how the tool used for the crime was created. Like 2 guys write 2 scripts that output a copyrighted poem, then the cool one guy, call him Sam can go free because he used algorithm A but second guy goes to jail because he used algorithm B where the crime is exactly identical.
jchw 3y ago
Forgive me for this one, but it comes from genuine curiosity and not snark. You are making assertions about how copyright law works, but you don't qualify it with either IANAL or any legal credentials. So I must ask: do you have a basis for these claims? I love participating in armchair analysis of the law, since in software we pretty much have no choice but to do so anyway, but my understanding has always been that we still don't actually have strong case-law for machine learning and AI. It does seem like the existing cases regarding weights and ML training have leaned strongly towards the weights in general not being considered a derivative work, but I have doubts that the law would see this as black and white; for example, even if the general consensus is that ML training to produce weights, in and of itself, does not create a derivative work, if you are able to show that a given set of weights is able to verbatim reproduce inputs (as a result of overfitting or memorization), I have my suspicions that it would not be shrugged off so easily. In true "color of my bits" fashion, I think that from a legal standpoint, the actual technical means by which something was accomplished doesn't matter if the process as a whole is effectively copyright infringement. There do seem to be some ongoing cases regarding this such as Getty Images v. Stability AI and it will be interesting to see their result.
- yokem55 3y ago
  > I think that from a legal standpoint, the actual technical means by which something was accomplished doesn't matter if the process as a whole is effectively copyright infringement. Which is why when the user of the model prompts for something infringing, and is successful at getting close to verbatim output (because the prompt was too constraining, becuase the work is overrepresented in the training) it is that particular output that is infringing. And maybe that means that services operating that prompt/response software are guilty of contributory infringment if they can't adequetly prevent that kind of output. But that doesn not mean that training the model was infringing. Nor does that mean distribution of the model is infringing. And if a user of the prompt/response software never prompts for anything infringing, and the software never spontaneously recreates anything infringing, there's no infringment happening. There are lots of technologies out there that are highly capable of enabling infringment at a massive scale. And where the vast majority of their actual usage is absolutely infringing. But we don't completely shut down those technologies that on their own - are not infringing. Bittorrent clients are pefectly legal to develop. And distribute. And people use those clients to commit infringment at large scale. But they are still pefectly legal to write and distrubute.
  - theamk 3y ago
    TensorFlow is also perfectly legal to develop and distribute, and no one contests this. People object to specific artifact, "model weights", which were produced using copyrighted works at the input, and can be used to reproduce those same copyrighted works back. In bittorrent analogy, people want to shut down specific pirate trackers and the pirate bay website.
    - yokem55 3y ago
      From the above EFF article: > First, a derivative work still has to be “substantially similar” to the original in order to be infringing. If the original is transformed or abridged or adapted to such an extent that this is no longer true, then it’s not a derivative work. A 10-line summary of a 15,000-line epic isn’t a derivative work, and neither are most summaries of books that people make in order to describe those copyrighted works to others. The statistics generated about the works entered as input, do not resemble the original works. Nor can those statistics on their own reproduce the original work. At most they are brief mathematical summaries of the work. And it's only after combining those stats with the stats of billions of other works (which is its own creative process to determine the best statistical methodologies to achieve that combination) that anything intelligble can be produced in the output stage.
theamk 3y ago
There is a nice essay from 2004 that answers that question, "What Color Are Your Bits" (https://ansuz.sooke.bc.ca/entry/23 https://ansuz.sooke.bc.ca/entry/23, discussion https://news.ycombinator.com/item?id=24917679 https://news.ycombinator.com/item?id=24917679) It talks about copyright infringement in music, but it applies just as well to AI training, just substitute "scrambled file" with "model weights": > The scrambled file still has the copyright Colour because it came from the copyrighted input file. It doesn't matter that it looks like, or maybe even is bit-for-bit identical with, some other file that you could get from a random number generator. It happens that you didn't get it from a random number generator. You got it from copyrighted material; it is copyrighted. The randomly-generated file, even if bit-for-bit identical, would have a different Colour. The Colour inherits through all scrambling and descrambling operations and you're distributing a copyrighted work,

simion314 3y ago

Why should a crime depend on how the tool used for the crime was created. Like 2 guys write 2 scripts that output a copyrighted poem, then the cool one guy, call him Sam can go free because he used algorithm A but second guy goes to jail because he used algorithm B where the crime is exactly identical.

jchw 3y ago

Forgive me for this one, but it comes from genuine curiosity and not snark. You are making assertions about how copyright law works, but you don't qualify it with either IANAL or any legal credentials. So I must ask: do you have a basis for these claims? I love participating in armchair analysis of the law, since in software we pretty much have no choice but to do so anyway, but my understanding has always been that we still don't actually have strong case-law for machine learning and AI. It does seem like the existing cases regarding weights and ML training have leaned strongly towards the weights in general not being considered a derivative work, but I have doubts that the law would see this as black and white; for example, even if the general consensus is that ML training to produce weights, in and of itself, does not create a derivative work, if you are able to show that a given set of weights is able to verbatim reproduce inputs (as a result of overfitting or memorization), I have my suspicions that it would not be shrugged off so easily. In true "color of my bits" fashion, I think that from a legal standpoint, the actual technical means by which something was accomplished doesn't matter if the process as a whole is effectively copyright infringement. There do seem to be some ongoing cases regarding this such as Getty Images v. Stability AI and it will be interesting to see their result.

yokem55 3y ago
> I think that from a legal standpoint, the actual technical means by which something was accomplished doesn't matter if the process as a whole is effectively copyright infringement. Which is why when the user of the model prompts for something infringing, and is successful at getting close to verbatim output (because the prompt was too constraining, becuase the work is overrepresented in the training) it is that particular output that is infringing. And maybe that means that services operating that prompt/response software are guilty of contributory infringment if they can't adequetly prevent that kind of output. But that doesn not mean that training the model was infringing. Nor does that mean distribution of the model is infringing. And if a user of the prompt/response software never prompts for anything infringing, and the software never spontaneously recreates anything infringing, there's no infringment happening. There are lots of technologies out there that are highly capable of enabling infringment at a massive scale. And where the vast majority of their actual usage is absolutely infringing. But we don't completely shut down those technologies that on their own - are not infringing. Bittorrent clients are pefectly legal to develop. And distribute. And people use those clients to commit infringment at large scale. But they are still pefectly legal to write and distrubute.
- theamk 3y ago
  TensorFlow is also perfectly legal to develop and distribute, and no one contests this. People object to specific artifact, "model weights", which were produced using copyrighted works at the input, and can be used to reproduce those same copyrighted works back. In bittorrent analogy, people want to shut down specific pirate trackers and the pirate bay website.
  - yokem55 3y ago
    From the above EFF article: > First, a derivative work still has to be “substantially similar” to the original in order to be infringing. If the original is transformed or abridged or adapted to such an extent that this is no longer true, then it’s not a derivative work. A 10-line summary of a 15,000-line epic isn’t a derivative work, and neither are most summaries of books that people make in order to describe those copyrighted works to others. The statistics generated about the works entered as input, do not resemble the original works. Nor can those statistics on their own reproduce the original work. At most they are brief mathematical summaries of the work. And it's only after combining those stats with the stats of billions of other works (which is its own creative process to determine the best statistical methodologies to achieve that combination) that anything intelligble can be produced in the output stage.

theamk 3y ago

There is a nice essay from 2004 that answers that question, "What Color Are Your Bits" (https://ansuz.sooke.bc.ca/entry/23 https://ansuz.sooke.bc.ca/entry/23, discussion https://news.ycombinator.com/item?id=24917679 https://news.ycombinator.com/item?id=24917679) It talks about copyright infringement in music, but it applies just as well to AI training, just substitute "scrambled file" with "model weights": > The scrambled file still has the copyright Colour because it came from the copyrighted input file. It doesn't matter that it looks like, or maybe even is bit-for-bit identical with, some other file that you could get from a random number generator. It happens that you didn't get it from a random number generator. You got it from copyrighted material; it is copyrighted. The randomly-generated file, even if bit-for-bit identical, would have a different Colour. The Colour inherits through all scrambling and descrambling operations and you're distributing a copyrighted work,