> That, plus the fact that Ross was a directly competing product, is what I see as really driving this decision.
The "competing product" thing is probably the most extreme part of this opinion.
The most important fair use factor is if the use competes with the original work, but this is generally implied to be directly competes, i.e. if you translate someone else's book from English to French and want to sell the translation, the translation is going to be in direct competition for sales to people who speak both English and French. The customer is going to use the copy claiming fair use as a direct substitute for the original work, instead of buying it.
This court is trying to extend that to anything downstream from it, which seems crazy. For example, "multiple copies for classroom use" is one of the explicit examples of fair use from the copyright statute, but schools are obviously teaching people intending to go into competition with the original author, and in general the idea that you can't read something if you ever intend to write something to sell in competition with it seems absurd and in contradiction to the common practices in reverse engineering.
But this is also a district court opinion that isn't even binding on other courts, so we'll see what happens if it gets appealed.
No that is not an extreme interpretation of the fair use factors. This is a routinely emphasized factor in fair use analyses for both copyright and trademark. School fair use is different because that defense is written into the statute directly in 17 U.S.C. § 107. Also, § 108 provides extensive protections for libraries and archives that go beyond fair use doctrines.
The idea that the schools are encouraging the students to compete with the original authors of works taught in the classroom is fanciful by the meaning that courts usually apply to competition. Your example is different from this case in which Ross wanted to compete in the same market against West offering a similar service at a lower price. Another reason that the schools get a carveout is because it would make most education impractical without each school obtaining special licenses for public performance for every work referenced in the classroom.
But maybe that also provokes the question as to if schools really deserve that kind of sweetheart treatment (a massive indirect subsidy), or does it over-privileges formal schools relative to the commons at large?
> School fair use is different because that defense is written into the statute directly
It's written into the statute as an example of something that would be fair use.
> The idea that the schools are encouraging the students to compete with the original authors of works taught in the classroom is fanciful by the meaning that courts usually apply to competition.
People go to art school primarily because they want to create art. People study computer science primarily because they want to write code. It's their direct intention and purpose to compete with existing works.
> Your example is different from this case in which Ross wanted to compete in the same market against West offering a similar service at a lower price.
So if you use Windows and then want to create Linux...
> Another reason that the schools get a carveout is because it would make most education impractical without each school obtaining special licenses for public performance for every work referenced in the classroom.
How is that logic any different than for AI training?
> But maybe that also provokes the question as to if schools really deserve that kind of sweetheart treatment (a massive indirect subsidy), or does it over-privileges formal schools relative to the commons at large?
It not only doesn't have any explicit requirement for a formal school (it just says "teaching"), it also isn't limited to teaching, teaching is just one of the things specified in the statute as being the kind of thing Congress intended fair use to include.
>It's written into the statute as an example of something that would be fair use.
Statutory text controls what the courts can do, even and perhaps especially when it includes an example.
>People go to art school primarily because they want to create art. People study computer science primarily because they want to write code. It's their direct intention and purpose to compete with existing works.
Interesting perspective.
>So if you use Windows and then want to create Linux...
I don't understand your meaning.
>How is that logic any different than for AI training?
That is what Mark Lemley, law professor at Stanford, has argued in his many law review articles and amicus briefs: he believes that training is analogous to learning. The court here didn't agree with the Lemley view.
>It not only doesn't have any explicit requirement for a formal school (it just says "teaching"), it also isn't limited to teaching, teaching is just one of the things specified in the statute as being the kind of thing Congress intended fair use to include.
In practice courts tend to limit these exceptions to formal teaching arrangements.
Copyright covers expression, not ideas. The underlying problem here is that Ross Intelligence never went to the trouble of distilling the purely idea-based and factual element from their original sources; even their finalized search system still had a pervasive reliance on Westlaw's original and creative expression as embedded in their headnotes. Using Windows and then creating Linux is something entirely different because Linux goes to great effort in order not to use anything that's specific to Windows. Large-scale language models are probably somewhere in the middle, because their unique reliance on an incredibly wide variety of published texts makes it very unlikely that they'll ever preserve anything of substance about the expression in any single text.
What a world we’re in where a school using text to teach children, who will remember it, talk about it with others, likely buy it for their own children… can be framed as a “massive indirect subsidy” rather than “free advertising”.
This reflects on the individuals choosing to create and proliferate such misleading or hyperbolic framing more than it does on the world that we all live in. In meatspace we usually reject these ideas and ignore the people pushing them.
The case looks pretty straightforward to me - they copied the notes ( human or machine doesn't really matter ) to directly compete with the author of the notes.
If you wrote a program that automatically rephrased an original text - something like the Encyclopaedia Britannica - to preserve the meaning but not have identical phrasing - and then sold access to that information on in a way that undercut the original - then in my view that's clearly ripping off the original creators of the Encyclopedia and would likely stop people writing new versions of the encyclopedia in the future if such activity was allowed.
These laws are there to make sure that valuable activities continue to happen and are not stopped because of theft. We need textbooks, we need journalistic articles - to get these requires people to be paid to work on them.
I think it's entirely reasonable to say that an LLM is such a program - and if used on sources which are sustained by having paid people work on them, and then the reformatted content is sold on in a way to under cut the original activity then that's a theft that's clearly damaging society.
I see LLM's as simply a different way to access the underlying content - the rules of the underlying content should still apply - ChatGPTs revenues are predicted to be in the billions this year - sending some of that to content creators, so that content continues to be produced, is not just right - it's in their interest.
> automatically rephrased an original text - something like the Encyclopaedia Britannica - to preserve the meaning but not have identical phrasing
Note that it's very hard to do this starting from a single source, because in order to be safe from any copyright concern you'd have to only preserve the bare "idea" and everything else in your text must be independent. But LLM's seem to be able to get around this by looking at many sources that are all talking about the same facts and ideas in very different ways, and then successfully generalizing "out of sample" to a different expression of the same ideas.
The concept clustering across multiple sources allows you to rephrase more accurately while retaining meaning - however the point I'm making is if you then point that program at Encyclopaedia Britannica and simply rephrase it then charge for access to the rephrased version - should you be allowed to do that?
The underlying problem is that "meaning" in the ordinary sense still includes plenty of copyrightable elements. If you point a typical LLM program at some arbitrary text and tell it to "rephrase" that, you'll generally end up with a very close paraphrase that still leaves intact to a huge extent the "structure, sequence and organization" (in a loose sense) of the original. So it turns out that you're still in breach of copyright. All you're allowed to use when starting from a single copywritten text is the ideas and facts in their very barest sense.
So if I made a pop song with was entirely copied from existing songs - but ensured that each fragment was relatively short ( but long enough to be recognisable ), then I'd be ok?
ie the way to avoid copyright is to double down on the copying?
I can see how, for a human, you could argue that there is creativity in splicing those bits together into a good whole - however if that process is automated - is it still creative - or just automated theft?
I think that someone taking Biology 101 and ending up writing textbooks, as opposed to all the other people who just forgot what they learned once the elective was over or ended up working biologists with labs or teachers of biology and so forth, is quite different than someone saying hey I want to make a competing product to this successful company, let's take their content, re-write and use AI to make a competitor, and then actually going into direct competition with that company a couple years later
The "competing product" thing is probably the most extreme part of this opinion.
The most important fair use factor is if the use competes with the original work, but this is generally implied to be directly competes, i.e. if you translate someone else's book from English to French and want to sell the translation, the translation is going to be in direct competition for sales to people who speak both English and French. The customer is going to use the copy claiming fair use as a direct substitute for the original work, instead of buying it.
This court is trying to extend that to anything downstream from it, which seems crazy. For example, "multiple copies for classroom use" is one of the explicit examples of fair use from the copyright statute, but schools are obviously teaching people intending to go into competition with the original author, and in general the idea that you can't read something if you ever intend to write something to sell in competition with it seems absurd and in contradiction to the common practices in reverse engineering.
But this is also a district court opinion that isn't even binding on other courts, so we'll see what happens if it gets appealed.