Comment on “Piracy is Piracy” – Disney and Universal team up to sue Midjourney
kibiz0r@midwest.social 9 months agoI’d say that scraping as a verb implies an element of intent. It’s about compiling information about a body of work, not simply making a copy, and therefore if you can accurately call it “scraping” then it’s always fair use. (Accuse me of “No True Scotsman” if you would like.)
But since it involves making a copy (even if only a temporary one) of licensed material, there’s the potential that you’re doing one thing with that copy which is fair use, and another thing with the copy that isn’t fair use.
Take archive.org for example:
It doesn’t only contain information about the work, but also a copy (or copies, plural) of the work itself. You could argue (and many have) that archive.org only claims to be about preserving an accurate history of a piece of content, but functionally mostly serves as a way to distribute unlicensed copies of that content.
I don’t personally think that’s a justified accusation, because I think they do everything in their power to be as fair as possible, and there’s a massive public benefit to having a service like this. But it does illustrate how you could easily have a scenario where the stated purpose is fair use but the actual implementation is not, and the infringing material was “scraped” in the first place.
But in the case of gen AI, I think it’s pretty clear that the residual data from the source content is much closer to a linguistic analysis than to an internet archive. So it’s firmly in the fair use category, in my opinion.
“if you can accurately call it “scraping” then it’s always fair use.”
I think you make some compelling points overall, but fair use has always been more complex than this. The intent is taken into account when evaluating whether something is fair use, but so is the actual impact — “fair use” is a designation applied to the overall situation, not to any singular factors (so a stated purpose can’t be fair use)
Yes, that’s a good addition.
Overall, my point was not that scraping is a universal moral good, but that legislating tighter boundaries for scraping in an effort to curb AI abuses is a bad approach.
We have better tools to combat this, and placing new limits on scraping will do collateral damage that we should not accept.
And at the very least, the portfolio value of Disney’s IP holdings should not be the motivating force behind AI regulation.
Tbh, this is not a question about scraping at all.
Scraping is just a rather neutral tool that can be used for all sorts of purposes, legal and illegal.
Neither does the technique justify the purpose nor does outlawing the technique fix the actual problem.
Fair use only applies for a certain set of use cases and has a strict set of restrictions applied to it.
The permitted use cases are: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”.
And the two relevant restrictions are:
(Quoted from 17 U.S.C. § 107)
And here the differences between archive.org and AI become obvious. While archive.org can be abused as some kind of file sharing system or to circumvent paywalls or ads, its intended purpose is for research, and it’s firmly non-profit and doesn’t compete with copyright holders.
AI, on the other hand, is almost always commercial, and its main purpose is to replace human labour, specifically of the copyright owners. It might not be an actual problem for Disney’s bottom line, but it’s a massive problem for smaller artists, stock photographers, translators, and many other professions.
That way, it clearly doesn’t apply to the use cases for fair use while violating the restrictions.
And for that, it doesn’t matter if the training data is acquired using scraping (without permission) or some other way (without permission to use it for AI training).
jerkface@lemmy.ca 9 months ago
I think the distinction between data acquisition and data application is important. Consider the parallel of photography; you are legally and ethically entitled to take a photo of anything that you can see from public (ie, you can “scrape” it). But that doesn’t mean that you can do anything you want with those photos. Distinguishing them makes the scraping part a lot less muddy.