The tech company’s latest proposal about generative AI turns copyright law on its head, and could especially hurt smaller content creators, say experts
In its submission to the Australian government’s review of the regulatory framework around AI, Google said that copyright law should be altered to allow for generative AI systems to scrape the internet.
A lot of licensing prevents or constrains creating derivative works and monetizing them. The question is for example if you train an AI on GPL code, does the output of the model constitute a derivative work?
If yes, Github Copilot is illegal as it produces code that should comply to multiple conflicting license requirements.
If no, I can write some simple AI that is “trained” to regurgitate its output on a prompt, and run a leaked copy of Windows through it, then go around selling Binbows and MSFT can’t do anything about it.
The truth is mostly between the two, this is just piracy, which always has been a gray area because of the difficulty of prosecuting it, previously because the perpetrators were many and hard to find, now it’s because the perpetrators are billion dollar companies with expensive lawyer teams.
The question is for example if you train an AI on GPL code, does the output of the model constitute a derivative work?
This question is completely independent of whether the code was generated by an AI or a human. You compare code A with code B, and if the judge and jury agree that code A is a derivative work of code B then you win the case. If the two bodies of work don’t have sufficient similarities then they aren’t derivative.
If no, I can write some simple AI that is “trained” to regurgitate its output on a prompt
You’ve reinvented copy-and-paste, not an “AI.” AIs are deliberately designed to not copy-and-paste. What would be the point of one that did? Nobody wants that.
Filtering the code through something you call an AI isn’t going to have any impact on whether you get sued. If the resulting code looks like copyrighted code, then you’re in trouble. If it doesn’t look like copyrighted code then you’re fine.
AIs are deliberately designed to not copy-and-paste.
AI is a marketing term, not a technical one. You can call anything “AI”, but it’s usually predictive models that get called that.
AIs are deliberately designed to not copy-and-paste. What would be the point of one that did? Nobody wants that.
For example if the powers that be decided to say licenses don’t apply once you feed material through an “AI”, and failed to define AI, you could say you wrote this awesome OS using an AI that you trained exclusively using Microsoft proprietary code. Their licenses and copyright and stuff doesn’t apply to AI training data so you could sell that new code your AI just created.
It doesn’t even have to be 100% identical to Windows source code. What if it’s just 80%? 50%? 20%? 5%? Where is the bar where the author can claim “that’s my code!”?
Just to compare, the guys who set out to reimplement Win32 APIs for use in Linux (the thing that made it into MacOS as well now) deliberately would not accept help from anyone who ever saw any Microsoft source code for fear of being sued. The bar was that high when it was a small FOSS organization doing it. It was 0%, proven beyond a doubt.
Now that Microsoft is the author, it’s not a problem when Github Copilot spits out GPL code word for word, ironically together with its license.
The reverse, actually. Artificial intelligence is a field of research that includes things like machine learning, as well as lots of even more mundane applications. It’s pop culture that has hijacked it to mean “a thing exactly as capable as a human brain, but in computer form.”
For example if the powers that be decided to say licenses don’t apply once you feed material through an “AI”, and failed to define AI, you could say you wrote this awesome OS using an AI that you trained exclusively using Microsoft proprietary code.
Once again, it doesn’t matter what you “feed code through.” Copyright applies to the tangible result. If the output from the AI matches closely to something that’s already copyrighted then that copyright applies to it. If it doesn’t match closely then that copyright doesn’t apply to it. The actual process by which the code was produced doesn’t matter one whit. If I took a Harry Potter book, put its pages through a shredder, randomly glued the particles of paper back together and it just so happened to closely replicate Lord of the Rings then the Tolkien estate has a case against me but the Rowling estate does not.
If the resulting code looks like copyrighted code, then you’re in trouble. If it doesn’t look like copyrighted code then you’re fine.
^^ Very much this.
Loads of people are treating the process of AI creating works as either violating copyright or not. But that is not how copyright works. It applies to the output of a process not the process itself. If someone ends up writing something that happens to be a copy of something they read before - that is a violation of copy write laws. If someone uses various works and creates something new and unique then that is not a violation. It does not - at this point in time at least - matter if that someone is a real person or an AI.
AI can both violate copy write on one work and not on another. Each case is independent and would need to be legislated differently. But AI can produce so much content so quickly that it creates a real problem for a case by case analysis of copy write infringement. So it is quite likely the laws will need to change to account for this and will likely need to treat AI works differently from human created works. Which is a very hard thing to actually deal with.
Now, one could also argue the model itself is a violation of copyright. But that IMO is a stretch - a model is nothing like the original work and the copyright law also does not cover this case. It would need to be taken to court to really decide on if this is allowed or not.
Personally I don’t think the conversation should be on what the laws currently allow - they were not designed for this. But instead what the laws should allow. So we can steer the conversation towards a better future. Lots of artists are expressing their distaste for AI models to be trained on their works - if enough people do this laws can be crafted to backup this view.
then go around selling Binbows and MSFT can’t do anything about it
I think this already happen.
A very practical example, windows GUI has been copied by many Linus distros. And with windows 11 there’s clearly a reference to Apple MacOS GUI with a sparkling of Google material design.
Should apple and Google be able to sue Microsoft because it “copied” their work?
Should Google be able to sue apple because they “copied” the notification drop-down in iOS?
As you say it’s really a grey area because the only reason we consider AI code to be “regurgitated” while human code to be “inspired” is only because we give humans more recognition of their intellectual abilities.
Except that programmers get sued for taking their expertise to competitors and musical artists get sued for using similar melodies. Give everyone the freedom you want to give AI or don’t give it to anyone, but carving out an exception for AI is just plainly wrong.
Someone getting sued does not mean they are wrong or that they lost the case. Each case needs to look at the works in question and decide if that perceptual case violates copy write. Lots of things are taken into account here, and even is small elements might have been used or be similar does not automatically win the case.
There is also a difference between some implementation and the overall feature in question. For instance, APIs are not copy writeable, nor are cords in music, nor what something does overall. Only specific implementations are copy writeable.
The same can apply to AI - if it generates a work that if a human did it it would violate copy write then it does - if not then it does not. But AI shows a different problem. That of scale. There is only a limited amount of work that a human can do. But an AI can produce vastly more content - enough that a case by case evaluation of infringement might not be viable. And if that becomes the case then AI works might need to be treated differently from human created works - or maybe how the models are created and how they can use copy writed works. The current laws were never designed with the speed at which AI can work in mind.
If an AI has been trained on copyrighted material and can be shown to be capable of reproducing something close enough to said material, would that be infringement already or not? If you use a paid service like Midjourney to generate copyrighted content, the company is essentially selling you access to copyrighted content they lack the rights to.
What do you mean by infringement already? So you mean it automatically infringes copyright for all its output just because it might create something similar to a copyrighted work? Or do you mean that if it does create a copyrighted work that work in infringing on a copyright? Your wording is vague here.
can be shown to be capable of reproducing something close enough to said material
I don’t think it is a good benchmark for forbidding AI generation of content. If you create a random image generate that has no inputs and is truly random then it is capable of generating something similar to copyrighted work - by pure chance. Even if that chance is very low you could generate enough images and show it can create something similar to copyrighted works.
What happens if you create one that is trained only on public domain images or works properly licensed? Its output is still partially random and could still generate an image similar to some other copyrighted work outside of its training set by pure chance.
I would argue that both of these should be allowed. They are not doing anything obviously wrong even if they could be used to generate copyrighted works. Just like you could use photoshop - or a paint brush to create copyrighted work.
But then, what if you take some other AI that is trained on all sorts of data, copyrighted or not. But then the output of that is fed through a checker that compares it to the training set (and maybe more copyrighted content) and rejects/regenerates work until it is known to not infringe on copyrighted work. Making the chances of it ever producing a copyrighted work far less then the above programs? Should that be allowed? It is using copyrighted work much like an artist would and you could argue that any copyrighted work it does produce was by pure accident as there are intentional steps to mitigate that.
If you use a paid service like Midjourney to generate copyrighted content, the company is essentially selling you access to copyrighted content they lack the rights to.
As far as I understand the laws involved, yeah I would expect that to infringe on some copyright holders work and midjourney would likely be coppable for damages. Just like hiring a artist to create some work and they decide to copy some copyrighted work would also make that artist coppable for damages.
And you also have to consider another side of things - if you can effectively stop AI from training on most works you will effectively stunt its usefulness. Which could lead all efforts in regulated nations to become useless which can result in it just moving to places that are much more open with the technology and where authors of the copyrighted work will have far less control over things. IMO AI generated content is out of the bag now and we will not get it back in. So the best we can do is ensure the right people get compensated for their works. Push to hard in the wrong direction (either way) and there is a real chance they never will.
I don’t really have the solutions to many of these problems - but I do think it is worth talking about and don’t think that outright bans (or actions leading to an effective ban) on this tech is the correct way to go.
To be clear, my position is that copyright law should be loosened, not tightened. I know that it’s unreasonable and infeasible to limit AI like that, both for practical and competitive reasons.
When I said that it could be shown to generate copyrighted content, I didn’t mean it had a chance, I meant showing actual examples of it doing so. I also think that it should be allowed to do that, but so should everyone else. In my opinion, derivative works should almost always be allowed unless they can be proven to cause significant harm to the original creator.
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A lot of licensing prevents or constrains creating derivative works and monetizing them. The question is for example if you train an AI on GPL code, does the output of the model constitute a derivative work?
If yes, Github Copilot is illegal as it produces code that should comply to multiple conflicting license requirements. If no, I can write some simple AI that is “trained” to regurgitate its output on a prompt, and run a leaked copy of Windows through it, then go around selling Binbows and MSFT can’t do anything about it.
The truth is mostly between the two, this is just piracy, which always has been a gray area because of the difficulty of prosecuting it, previously because the perpetrators were many and hard to find, now it’s because the perpetrators are billion dollar companies with expensive lawyer teams.
This question is completely independent of whether the code was generated by an AI or a human. You compare code A with code B, and if the judge and jury agree that code A is a derivative work of code B then you win the case. If the two bodies of work don’t have sufficient similarities then they aren’t derivative.
You’ve reinvented copy-and-paste, not an “AI.” AIs are deliberately designed to not copy-and-paste. What would be the point of one that did? Nobody wants that.
Filtering the code through something you call an AI isn’t going to have any impact on whether you get sued. If the resulting code looks like copyrighted code, then you’re in trouble. If it doesn’t look like copyrighted code then you’re fine.
AI is a marketing term, not a technical one. You can call anything “AI”, but it’s usually predictive models that get called that.
For example if the powers that be decided to say licenses don’t apply once you feed material through an “AI”, and failed to define AI, you could say you wrote this awesome OS using an AI that you trained exclusively using Microsoft proprietary code. Their licenses and copyright and stuff doesn’t apply to AI training data so you could sell that new code your AI just created.
It doesn’t even have to be 100% identical to Windows source code. What if it’s just 80%? 50%? 20%? 5%? Where is the bar where the author can claim “that’s my code!”?
Just to compare, the guys who set out to reimplement Win32 APIs for use in Linux (the thing that made it into MacOS as well now) deliberately would not accept help from anyone who ever saw any Microsoft source code for fear of being sued. The bar was that high when it was a small FOSS organization doing it. It was 0%, proven beyond a doubt.
Now that Microsoft is the author, it’s not a problem when Github Copilot spits out GPL code word for word, ironically together with its license.
The reverse, actually. Artificial intelligence is a field of research that includes things like machine learning, as well as lots of even more mundane applications. It’s pop culture that has hijacked it to mean “a thing exactly as capable as a human brain, but in computer form.”
Once again, it doesn’t matter what you “feed code through.” Copyright applies to the tangible result. If the output from the AI matches closely to something that’s already copyrighted then that copyright applies to it. If it doesn’t match closely then that copyright doesn’t apply to it. The actual process by which the code was produced doesn’t matter one whit. If I took a Harry Potter book, put its pages through a shredder, randomly glued the particles of paper back together and it just so happened to closely replicate Lord of the Rings then the Tolkien estate has a case against me but the Rowling estate does not.
^^ Very much this.
Loads of people are treating the process of AI creating works as either violating copyright or not. But that is not how copyright works. It applies to the output of a process not the process itself. If someone ends up writing something that happens to be a copy of something they read before - that is a violation of copy write laws. If someone uses various works and creates something new and unique then that is not a violation. It does not - at this point in time at least - matter if that someone is a real person or an AI.
AI can both violate copy write on one work and not on another. Each case is independent and would need to be legislated differently. But AI can produce so much content so quickly that it creates a real problem for a case by case analysis of copy write infringement. So it is quite likely the laws will need to change to account for this and will likely need to treat AI works differently from human created works. Which is a very hard thing to actually deal with.
Now, one could also argue the model itself is a violation of copyright. But that IMO is a stretch - a model is nothing like the original work and the copyright law also does not cover this case. It would need to be taken to court to really decide on if this is allowed or not.
Personally I don’t think the conversation should be on what the laws currently allow - they were not designed for this. But instead what the laws should allow. So we can steer the conversation towards a better future. Lots of artists are expressing their distaste for AI models to be trained on their works - if enough people do this laws can be crafted to backup this view.
I think this already happen. A very practical example, windows GUI has been copied by many Linus distros. And with windows 11 there’s clearly a reference to Apple MacOS GUI with a sparkling of Google material design.
Should apple and Google be able to sue Microsoft because it “copied” their work? Should Google be able to sue apple because they “copied” the notification drop-down in iOS?
As you say it’s really a grey area because the only reason we consider AI code to be “regurgitated” while human code to be “inspired” is only because we give humans more recognition of their intellectual abilities.
Except that programmers get sued for taking their expertise to competitors and musical artists get sued for using similar melodies. Give everyone the freedom you want to give AI or don’t give it to anyone, but carving out an exception for AI is just plainly wrong.
Exactly this right here.
Someone getting sued does not mean they are wrong or that they lost the case. Each case needs to look at the works in question and decide if that perceptual case violates copy write. Lots of things are taken into account here, and even is small elements might have been used or be similar does not automatically win the case.
There is also a difference between some implementation and the overall feature in question. For instance, APIs are not copy writeable, nor are cords in music, nor what something does overall. Only specific implementations are copy writeable.
The same can apply to AI - if it generates a work that if a human did it it would violate copy write then it does - if not then it does not. But AI shows a different problem. That of scale. There is only a limited amount of work that a human can do. But an AI can produce vastly more content - enough that a case by case evaluation of infringement might not be viable. And if that becomes the case then AI works might need to be treated differently from human created works - or maybe how the models are created and how they can use copy writed works. The current laws were never designed with the speed at which AI can work in mind.
If an AI has been trained on copyrighted material and can be shown to be capable of reproducing something close enough to said material, would that be infringement already or not? If you use a paid service like Midjourney to generate copyrighted content, the company is essentially selling you access to copyrighted content they lack the rights to.
What do you mean by infringement already? So you mean it automatically infringes copyright for all its output just because it might create something similar to a copyrighted work? Or do you mean that if it does create a copyrighted work that work in infringing on a copyright? Your wording is vague here.
I don’t think it is a good benchmark for forbidding AI generation of content. If you create a random image generate that has no inputs and is truly random then it is capable of generating something similar to copyrighted work - by pure chance. Even if that chance is very low you could generate enough images and show it can create something similar to copyrighted works.
What happens if you create one that is trained only on public domain images or works properly licensed? Its output is still partially random and could still generate an image similar to some other copyrighted work outside of its training set by pure chance.
I would argue that both of these should be allowed. They are not doing anything obviously wrong even if they could be used to generate copyrighted works. Just like you could use photoshop - or a paint brush to create copyrighted work.
But then, what if you take some other AI that is trained on all sorts of data, copyrighted or not. But then the output of that is fed through a checker that compares it to the training set (and maybe more copyrighted content) and rejects/regenerates work until it is known to not infringe on copyrighted work. Making the chances of it ever producing a copyrighted work far less then the above programs? Should that be allowed? It is using copyrighted work much like an artist would and you could argue that any copyrighted work it does produce was by pure accident as there are intentional steps to mitigate that.
As far as I understand the laws involved, yeah I would expect that to infringe on some copyright holders work and midjourney would likely be coppable for damages. Just like hiring a artist to create some work and they decide to copy some copyrighted work would also make that artist coppable for damages.
And you also have to consider another side of things - if you can effectively stop AI from training on most works you will effectively stunt its usefulness. Which could lead all efforts in regulated nations to become useless which can result in it just moving to places that are much more open with the technology and where authors of the copyrighted work will have far less control over things. IMO AI generated content is out of the bag now and we will not get it back in. So the best we can do is ensure the right people get compensated for their works. Push to hard in the wrong direction (either way) and there is a real chance they never will.
I don’t really have the solutions to many of these problems - but I do think it is worth talking about and don’t think that outright bans (or actions leading to an effective ban) on this tech is the correct way to go.
To be clear, my position is that copyright law should be loosened, not tightened. I know that it’s unreasonable and infeasible to limit AI like that, both for practical and competitive reasons.
When I said that it could be shown to generate copyrighted content, I didn’t mean it had a chance, I meant showing actual examples of it doing so. I also think that it should be allowed to do that, but so should everyone else. In my opinion, derivative works should almost always be allowed unless they can be proven to cause significant harm to the original creator.
You should read this.