[ghaff]

The IP lawyers I've talked to about this at length—and who don't have a particular axe to grind—are pretty skeptical in general outside of a specific output being a derivative work of a specific copyrighted work. The argument against generative AI seems (IANAL) to rest on there being some sort of collective copyright (across many different creators and even including works that are not actually copyrighted at all) which somehow carries over to an output that, had a human created it would probably be seen as an original work.

I get the emotional appeal to companies are using my stuff without paying me or even crediting me. But, as I understand it, works are normally considered derivative of specific works—not some large corpus.

[belorn]

Collective copyright-like arguments do look strange but they were the core argument in the pirate bay trial. The founders were found guilty of assisting in infringement of copyright where the specific case of infringement and the specific copyrighted work is both unknown and deemed unnecessary to define.

The argument as it went went like this. Is the theory that no infringement has occurred believable, or can it be said as a forgone conclusion that over the course of the operation that some specific copyrighted work has been infringed on at some point in time and that the operator knowingly were aware that such cases was likely to have happened.

It is true that many lawyers and legal experts thought that the pirate founders were immune to such claims since usually one need to produce specific cases of specific copyrighted works in order to find someone guilty of assisting. The case however illustrated that such requirements are not always needed, and the Swedish supreme court did not feel it necessary to analyze it further.

[ghaff]

>The argument as it went went like this. Is the theory that no infringement has occurred believable, or can it be said as a forgone conclusion that over the course of the operation that some specific copyrighted work has been infringed on at some point in time and that the operator knowingly were aware that such cases was likely to have happened.

Though in this case, I assume that a great many lawyers would argue that it's hardly a foregone conclusion in this case.

[belorn]

The likelihood that no output has ever infringed any copyright will be an interesting argument. People are constantly testing and prompting different AI's to see if they can get them to reproduce known content, and there are a few known examples from copilot where such test has shown large amount of reproduced exact copies of comments and other identifiable segments. Similar things has been done with images, like the getty watermark.

AI developers has also started to add filters and other techniques to remove outputs that are too similar to existing works, which is both a good thing and a bad thing. It shows that the tools do output such works (as otherwise they wouldn't need to filter it out), but also show that they are working to minimize it. Courts would have to look at it and decide if such efforts are an admittance of the issue or if the mitigations are enough.

In this specific case, I doubt such discussion will occur at this point since the main point that the judge brought up is that the copyrighted works need to be registered first at the copyright office before it can go any further (except for 12 works which already are registered).