Why the New York Times Might Win its Copyright Lawsuit Against OpenAI
Freeman writes:
The day after The New York Times sued OpenAI for copyright infringement, the author and systems architect Daniel Jeffries wrote an essay-length tweet arguing that the Times "has a near zero probability of winning" its lawsuit. As we write this, it has been retweeted 288 times and received 885,000 views.
"Trying to get everyone to license training data is not going to work because that's not what copyright is about," Jeffries wrote. "Copyright law is about preventing people from producing exact copies or near exact copies of content and posting it for commercial gain. Period. Anyone who tells you otherwise is lying or simply does not understand how copyright works."
[...] Courts are supposed to consider four factors in fair use cases, but two of these factors tend to be the most important. One is the nature of the use. A use is more likely to be fair if it is "transformative"-that is, if the new use has a dramatically different purpose and character from the original. Judge Rakoff dinged MP3.com as non-transformative because songs were merely "being retransmitted in another medium."
In contrast, Google argued that a book search engine is highly transformative because it serves a very different function than an individual book. People read books to enjoy and learn from them. But a search engine is more like a card catalog; it helps people find books.
The other key factor is how a use impacts the market for the original work. Here, too, Google had a strong argument since a book search engine helps people find new books to buy.
[...] In 2015, the Second Circuit ruled for Google. An important theme of the court's opinion is that Google's search engine was giving users factual, uncopyrightable information rather than reproducing much creative expression from the books themselves.
[...] Recently, we visited Stability AI's website and requested an image of a "video game Italian plumber" from its image model Stable Diffusion.
[...] Clearly, these models did not just learn abstract facts about plumbers-for example, that they wear overalls and carry wrenches. They learned facts about a specific fictional Italian plumber who wears white gloves, blue overalls with yellow buttons, and a red hat with an "M" on the front.
These are not facts about the world that lie beyond the reach of copyright. Rather, the creative choices that define Mario are likely covered by copyrights held by Nintendo.
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