Comment on The Irony of 'You Wouldn't Download a Car' Making a Comeback in AI Debates
Eccitaze@yiffit.net 3 weeks agounique
“unique new IP right?” Bruh you’re talking about basic fucking intellectual property law. Just because someone posts something publicly on the internet doesn’t mean that it can be used for whatever anybody likes. This is so well-established, that every major art gallery and social media website has a clause in their terms of service stating that you are granting them a license to redistribute that content. And most websites also explicitly state that when you upload your work to their site that you still retain your copyright of that work.
For example (emphasis mine):
4.1 When you upload content to Fur Affinity via our services, you grant us a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt, and create derivative works of, that content. These permissions are purely for the limited purposes of allowing us to provide our services in accordance with their functionality (hosting and display), improve them, and develop new services. These permissions do not transfer the rights of your content or allow us to create any deviations of that content outside the aforementioned purposes.
Posting Content
You keep copyright of any content posted to Inkbunny. For us to provide these services to you, you grant Inkbunny non-exclusive, royalty-free license to use and archive your artwork in accordance with this agreement.
When you submit artwork or other content to Inkbunny, you represent and warrant that:
* you own copyright to the content, or that you have permission to use the content, and that you have the right to display, reproduce and sell the content. You license Inkbunny to use the content in accordance with this agreement;
- Copyright in Your Content
DeviantArt does not claim ownership rights in Your Content. For the sole purpose of enabling us to make your Content available through the Service, you grant DeviantArt a non-exclusive, royalty-free license to reproduce, distribute, re-format, store, prepare derivative works based on, and publicly display and perform Your Content. Please note that when you upload Content, third parties will be able to copy, distribute and display your Content using readily available tools on their computers for this purpose although other than by linking to your Content on DeviantArt any use by a third party of your Content could violate paragraph 4 of these Terms and Conditions unless the third party receives permission from you by license.
When you upload content to e621 via our services, you grant us a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, downsample, convert, adapt, and create derivative works of, that content. These permissions are purely for the limited purposes of allowing us to provide our services in accordance with their functionality (hosting and display), improve them, and develop new services. These permissions do not transfer the rights of your content or allow us to create any deviations of that content outside the aforementioned purposes.
Your Rights and Grant of Rights in the Content
You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods now known or later developed (for clarity, these rights include, for example, curating, transforming, and translating). This license authorizes us to make your Content available to the rest of the world and to let others do the same.
The permissions you give us We need certain permissions from you to provide our services:
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Permission to use content you create and share: Some content that you share or upload, such as photos or videos, may be protected by intellectual property laws.
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You retain ownership of the intellectual property rights (things like copyright or trademarks) in any such content that you create and share on Facebook and other Meta Company Products you use. Nothing in these Terms takes away the rights you have to your own content. You are free to share your content with anyone else, wherever you want.
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However, to provide our services we need you to give us some legal permissions (known as a “license”) to use this content. This is solely for the purposes of providing and improving our Products and services as described in Section 1 above.
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Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as Meta Products or service providers that support those products and services. This license will end when your content is deleted from our systems.
I could go on, but I think I’ve made my point very clear: Every social media website and art gallery is built on an assumption that the person uploading art A) retains the copyright over the items they upload, B) that other people and organizations have NO rights to copyrighted works unless explicitly stated otherwise, and C) that 3rd parties accessing this material do not have any rights to uploaded works, since they never negotiated a license to use these works.
FatCrab@lemmy.one 3 weeks ago
You are misunderstanding what I’m getting at and unfortunately no this isn’t just straightforwardly copyright law whatsoever. The training content does not need to be copied. It isn’t saved in a database somewhere (as part of the training…downloading pirated texts is a whole other issue completely removed from the inherent processes of training a model), relationships are extracted from the material, however it is presented. So the copyright extends to the right of displaying the material in the first place. If your initial display/access to the training content is non-infringing, the mere extraction of relationships between components is not itself making a copy nor is it making a derivative work in any way we haven’t historically considered it. Effectively, it’s the difference between looking at material and making intensive notes of how different parts of the material relate to each other and looking at a material and reproducing as much of it as possible for your own records.
Eccitaze@yiffit.net 3 weeks ago
FFS, the issue is not that the AI model “copies” the copyrighted works when it trains on them–I agree that after an AI model is trained, it does not meaningfully retain the copyrighted work. The problem is that the reproduction of the copyrighted work–i.e. downloading the work to the computer, and then using that reproduction as part of AI model training–is being done for a commercial purpose that infringes copyright.
If I went to DeviantArt and downloaded a random piece of art to my hard drive for my own personal enjoyment, that is a non-infringing reproduction. If I then took that same piece of art, and uploaded it to a service that prints it on a T-shirt, the act of uploading it to the T-shirt printing service’s server would be infringing, since it is no longer being reproduced for personal enjoyment, but the unlawful reproduction of copyrighted material for commercial purpose. Similarly, if I downloaded a piece of art and used it to print my own T-shirts for sale, using all my own computers and equipment, that would also be infringing. This is straightforward, non-controversial copyright law.
The exact same logic applies to AI training. You can try to camouflage the infringement with flowery language like “mere extraction of relationships between components,” but the purpose and intent behind AI companies reproducing copyrighted works via web scraping and downloading copyrighted data to their servers is to build and provide a commercial, for-profit service that is designed to replace the people whose work is being infringed. Full stop.
FatCrab@lemmy.one 3 weeks ago
No, this is mostly incorrect, sorry. The commercial aspect of the reproduction is not relevant to whether it is an infringement–it is simply a factor in damages and Fair Use defense (an affirmative defense that presupposes infringement).
What you are getting at when it applies to this particular type of AI is effectively whether it would be a fair use, presupposing there is copying amounting to copyright infringement. And what I am saying is that, ignoring certain stupid behavior like torrenting a shit ton of text to keep a local store of training data, there is no copying happening as a matter of necessity. There may be copying as a matter of stupidity, but it isn’t necessary to the way the technology works.
Now, I know, you’re raging and swearing right now because you think that downloading the data into cache constitutes an unlawful copying–but it presumably does not if it is accessed like any other content on the internet. Because intent is not a part of what makes that a lawful or unlawful copying and once a lawful distribution is made, principles of exhaustion begin to kick in and we start getting into really nuanced areas of IP law that I don’t feel like delving into with my thumbs, but ultimate the point is that it isn’t “basic copyright law.” But if intent is determinitive of whether there is copying in the first place, how does that jive with an actor not making copies for themselves but rather accessing retained data in a third party’s cache after they grab the data for noncommercial purposes? Also, how does that make sense if the model is being trained for purely research purposes? And then perhaps that model is leveraged commercially after development? Your analysis, assuming it’s correct arguendo, leaves far too many outstanding substantive issues to be the ruling approach.
Eccitaze@yiffit.net 3 weeks ago
You’re conflating whether something is infringement with defenses against infringement. Believe it or not, basically all data transfer and display of copyrighted material on the Internet is technically infringing. That includes the download of a picture to your computer’s memory for the sole purpose of displaying it on your monitor. In practice, nobody ever bothers suing art galleries, social media websites, or web browsers, because they all have ironclad defenses against infringement claims: art galleries & social media include a clause in their TOS that grants them a license to redistribute your work for the purpose of displaying it on their website, and web browsers have a basically bulletproof fair use claim. There are other non-infringing uses such as those which qualify for a compulsory license (e.g. live music productions, usually involving royalties), but they’re largely not very relevant here. In any case, the fundamental point is that any reproduction of a copyrighted work is infringement, but there are varied defenses against this that mean most infringing activities never see a courtroom in practice.
All this gets back to the original point I made: Creators retain their copyright even when uploading data for public use, and that copyright comes with heavy restrictions on how third parties may use it. When an individual uploads something to an art website, the website is free and clear of any claims for copyright infringement by virtue of the license granted to it by the website’s TOS. An uninvolved third party–e.g. a non-registered user or an organization that has not entered into a licensing agreement with the creator or the website (*cough* OpenAI)–has no special defense against copyright infringement claims beyond the baseline questions: was the infringement for personal, noncommercial use? And does the infringement qualify as fair use? Individual users downloading an image for their private collection are mostly A-OK, because the infringement is done for personal & noncommercial use–theoretically someone could sue over it, but there would have to be a lot of aggravating factors for it to get beyond summary judgment. AI companies using web scrapers to download creators’ works do not qualify as personal/noncommercial use, for what I hope are bloody obvious reasons.
As for a model trained purely for research or educational purposes, I believe that it would have a very strong claim for fair use as long as the model is not widely available for public use. Once that model becomes publicly available, and/or is leveraged commercially, the analysis changes, because the model is no longer being used for research, but for commercial profit. To apply it to the real world, when OpenAI originally trained ChatGPT for research, it was on strong legal ground, but when it decided to start making it publicly available, they should have thrown out their training dataset and built up a new one using data in the public domain and data that it had negotiated a license for, trained ChatGPT on the new dataset, and then released it commercially. If they had done that, and if individuals had been given the option to opt their creative works out of this dataset, I highly doubt that most people would have any objection to LLM from a legal standpoint. Hell, they probably could have gotten licenses to use most websites’ data to train ChatGPT for a song. Instead, they jumped the gun and tipped their hand before they had all their ducks in a row, and now everybody sees just how valuable their data is to OpenAI and are pricing it accordingly.
Oh, and as for your edit, you contradicted yourself: in your first line, you said “The commercial aspect of the reproduction is not relevant to whether it is an infringement.” In your edit, you said “the infringement happens when you reproduce the images for a commercial purpose.” So which is it? (To be clear, the initial download is infringing copyright both when I download the image for personal/noncommercial use, and also when I download it to make T-shirts with. The difference is that the first case has a strong defense against an infringement claim that would likely get it dismissed in summary, while the cases of making T-shirts would be straightforward claims of infringement.)