> but in this case the works in question were released under a license that allowed free duplication and distribution so no harm was caused.
FSF licenses contain attribution and copyleft clauses. It's "do whatever you want with it provided that you X, Y and Z". Just taking the first part without the second part is a breach of the license.
It's like renting a car without paying and then claiming "well you said I can drive around with it for the rest of the day, so where is the harm?" while conveniently ignoring the payment clause.
You maybe confusing this with a "public domain" license.
If what you do with a copyrighted work is covered by fair use it doesn't matter what the license says - you can do it anyway. The GFDL imposes restrictions on distribution, not copying, so merely downloading a copy imposes no obligation on you and so isn't a copyright infringement either.
I used to be on the FSF board of directors. I have provided legal testimony regarding copyleft licenses. I am excruciatingly aware of the difference between a copyleft license and the public domain.
> I am excruciatingly aware of the difference between a copyleft license and the public domain.
Then why did you say "no harm was caused"? Clearly the harm of "using our copylefted work to create proprietary software" was caused. Do you just mean economic harm? If so, I think that's where the parent comments confusion originates.
> The GFDL imposes restrictions on distribution, not copying, so merely downloading a copy imposes no obligation on you and so isn't a copyright infringement either.
The restrictions fall not only on verbatim distribution, but derivative works too. I am not aware whether model outputs are settled to be or not to be (hehe) derivative works in a court of law, but that question is at the vey least very much valid.
> the district court ruled that using the books to train LLMs was fair use but left for trial the question of whether downloading them for this purpose was legal.
The pipeline is something like: download material -> store material -> train models on material -> store models trained on material -> serve output generated from models.
These questions focus on the inputs to the model training, the question I have raised focuses on the outputs of the model. If [certain] outputs are considered derivative works of input material, then we have a cascade of questions which parts of the pipeline are covered by the license requirements. Even if any of the upstream parts of this simplified pipeline are considered legal, it does not imply that that the rest of the pipeline is compliant.
Consider the net effect and the answer is clear. When these models are properly "trained", are people going to look for the book or a derivative of it, with proper attribution?
Or is the LLM going to regurgitate the same content with zero attribution, and shift all the traffic away from the original work?
When viewed in this frame, it is obvious that the work is derivative and then some.
That is your opinion, but the judge disagreed with you. The decision may have been overturned on appeal, but as it stands, in that courtroom, the training was fair use.
I can memorize a song and it will be fair use too, but it won't be anymore once I start performing it publicly. Training itself is quite obviously fair use, what matters is what happens next.
This is also, unfortunately, the only way this can be settled. Making LLM output legally a derivative work would murder the AI golden rush and nobody wants that
I'm also skeptical that it's impossible to get an LLM to reproduce some code verbatim. Google had that paper a while back about getting diffusion models to spit out images that were essentially raw training data, and I wouldn't be surprised if the same is possible for LLMs.
Stack Overflow has verbatim copied GPL code in some of its questions and answers. As presented by SO, that code is not under the GPL license (this also applies to other licenses - the BSD advertising clause and the original json will cause similar problems).
Arguably, the use of the code in the Stack Overflow question and answer is fair use.
The problem occurs not when someone reads the Q&A with the improperly licensed code but rather when they then copy that code verbatim into their own non GPL product and distribute that without adherence to the GPL.
It's the last step - some human distributing the improperly licensed software that is the violation of the GPL.
This same chain of what is allowed and what is not is equally applicable to LLMs. Providing examples from GPL licensed material to answer a question isn't a license violation. The human copying that code (from any source) and pasting it into their own software is a license violation.
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Some while back I had a discussion with a Swiss developer about the indefinite article used before "hobbit" in a text game. They used "an hobbit" and in the discussion of fixing it, I quoted the first line of The Hobbit. "In a hole in the ground there lived a hobbit." That cleared it up and my use of it in that (and this) discussion is fair use.
If someone listening to that conversation (or reading this one) thought that the bit that I quoted would be great on a T-shirt and them printed that up and distributed it - that would be a copyright violation.
The Ninth Circuit did, however, overturn the district court's decision that Google's thumbnail images were unauthorized and infringing copies of Perfect 10's original images. Google claimed that these images constituted fair use, and the circuit court agreed. This was because they were "highly transformative."
If I was to then take those thumbnails from a google image search and distribute that as an icon library, I would then be guilty of copyright infringement.
I believe that Stack Overflow, Google Images, and LLM models and their output constitutes an example of transformative fair use. What someone does with that output is where copyright infringement happens.
My claim isn't that AI vendors are blameless but rather that in the issue of copyright and license adherence it is the human in the process that is the one who has agency and needs to follow copyright (and for AI agents that were unleashed without oversight, it is the human that spun them up or unleashed them).
That's really interesting. I'm a lawyer, and I had always interpreted the license like a ToS between the developers. That (in my mind) meant that the license could impose arbitrary limitations above the default common law and statutory rules and that once you touched the code you were pregnant with those limitations, but this does make sense. TIL. So, thanks.
Does the reasoning in the cases where people to whom GPL software was distributed could sue the distributor for source code, rather than relying on the copyright holder suing for breach of copyright strengthen the argument that arbitrary limitations are enforceable?
Licenses != contracts, and well, the FSF's position has always been that the GPL isn't a contract, and contracts are what allow you to impose arbitrary limitations. Most EULAs are actually contracts.
Yes... a license can be granted via contract. I think the question here is whether posting a LICENSE.md file in a public github repo forms a contract (offer, acceptance, consideration) when a developer uses it. If so, I'm back to being unclear how "public domain" can really play a role. The developer is bound by the terms of that contract.
Unrelated question regarding this part, since you seem to be an expert on this:
> If what you do with a copyrighted work is covered by fair use it doesn't matter what the license says - you can do it anyway.
How is it that contracts can prohibit trial by jury but they can't ban prohibit fair use of copyrighted work? Is there a list of things a contract is and isn't allows to prohibit, and explanations/reasons for them?
The general answer is because there is a statute or court opinion that says so for one thing and a different one that says something else for the other thing.
It's also relevant that copyright (and fair use) is federal law, contracts are state law and federal law preempts state law.
It sounds that way a bit from the one sentence. But that’s not the case at all.
> 4. MODIFICATIONS
> You may copy and distribute a Modified Version of the Document under the conditions of sections 2 and 3 above, provided that you release
the Modified Version under precisely this License, with the Modified
Version filling the role of the Document, thus licensing distribution
and modification of the Modified Version to whoever possesses a copy
of it. In addition, you must do these things in the Modified Version:
Etc etc.
In short, it is a copyleft license. You must also license derivative works under this license.
Just fyi, the gnu fdl is (unsurprisingly) available for free online - so if you want to know what it says, you can read it!
And the judgement said that the training was fair use, but that the duplication might be an infringement. The GFDL doesn't restrict duplication, only distribution, so if training on GFDLed material is fair use and not the creation of a derivative work then there's no damage.
Right. I can publish the work in whole without asking permission. That’s unrestricted duplication.
However, as i read it, an LLM spitting out snippets from the text is not “duplicating” the work. That would fall under modifications. From the license:
> A "Modified Version" of the Document means any work containing the Document or a portion of it, either copied verbatim, or with modifications and/or translated into another language.
I read that pretty clearly as any work containing text from a gnu fdl document is a modification not a duplication.
1) Obtaining the copyrighted works used for training. Anthropic did this without asking for the copyright holders' permission, which would be a copyright violation for any work that isn't under a license that grants permission to duplicate. The GFDL does, so no issue here.
2) Training the model. The case held that this was fair use, so no issue here.
3) Whether the output is a derivative work. If so then you get to figure out how the GFDL applies to the output, but to the best of my knowledge the case didn't ask this question so we don't know.
For this to stand up in court you'd need to show that an LLM is distributing "a modified version of the document".
If I took a book and cut it up into individual words (or partial words even), and then used some of the words with words from every other book to write a new book, it'd be hard to argue that I'm really "distributing the first book", even if the subject of my book is the same as the first one.
This really just highlights how the law is a long way behind what's achievable with modern computing power.
You’re just describing transformative use. I’m not a lawyer, but an example from music - taking a single drum hit from a james brown song is apparently not transformative. Taking a vibe from another song is also maybe not transformative, e.g. robin thicke and pharrell’s “blurred lines” was found to legally take the “feel” from Marvin Gaye’s “Got to Give it Up”
Which is all to say that the law is actually really bad at determining what is right and wrong, and our moral compasses should not defer to the law. Unfortunately, moral compasses are often skewed by money - like how normal compassess are skewed by magnets
Presumably, a suitable prompt could get the LLM to produce whole sections of the book which would demonstrate that the LLM contains a modified version.
I am distrubting an svg file. It’s a program that, when run, produces an image of mickey mouse.
By your description of the law, this svg file is not infringing on disney’s copyright - since it’s a program that when run creates an infringing document (the rasterized pixels of mickey mouse) but it is not an infringing document itself.
I really don’t think my “i wrote a program in the svg language” defense would hold up in court. But i wonder how many levels of abstraction before it’s legal? Like if i write the mickey-mouse-generator in python does that make it legal? If it generates a variety of randomized images of mickey mouse, is that legal? If it uses statistical anaylsis of many drawings of mickey to generate an average mickey mouse, is that legal? Does it have to generate different characters if asked before it is legal? Can that be an if statement or does it have to use statistical calculations to decide what character i want?
The SVG file is a representation of mickey mouse thus possibly touches Disney copyright (depends on exactly what form of Mickey it represents, as I believe some went public domain equivalent recently). It's not capable of being something else without substantial rework. Therefore it is a derivative work.
Generally, to pass the test of not being a derivative work it would need to be generic enough that it creates non-copyrighted works as well, then the responsibility shifts over. Can the program exist without a given copyrighted work (not general idea, specific copyrighted works)? Then it's quite probably not derivative.
FSF licenses contain attribution and copyleft clauses. It's "do whatever you want with it provided that you X, Y and Z". Just taking the first part without the second part is a breach of the license.
It's like renting a car without paying and then claiming "well you said I can drive around with it for the rest of the day, so where is the harm?" while conveniently ignoring the payment clause.
You maybe confusing this with a "public domain" license.