but would they have liability if they submitted their "output" to a senior artist, who immediately shot it down as obviously infringing? Surely not. It's not illegal to draw Mario - just illegal to make money off your drawing.
I think the real question is whether OpenAI should be allowed to charge for generating infringing content. Even though the unit cost of the Mario drawing is negligible, the sum total of their infringing outputs may be making them a lot of money.
>I think the real question is whether OpenAI should be allowed to charge for generating infringing content.
Well, are they really doing that?
If I rent a server to host a minecraft instance, is the company "charging for a minecraft server"? It is not clear to me that by charging users for AI usage they are complicit for whatever is generated. We don't require Adobe to prevent people from drawing Mickey either.
there are a lot of interesting legal questions here, but surely in the Adobe/Mickey case, it's the user's input that's infringing. In the examples provided here, the user's input is obviously not infringing, so that leaves... the model's output?
you don't have to make money off it, you just can't publish it, except as a parody or commentary or possibly a tutorial on how to draw mario if the judge is having a good day
but "making money = infringement" is folk wisdom. you could certainly say making money attracts attention and increases likelihood of legal action
Making money off it doesn't just draw more attention, it also makes a fair use defense harder. Non-commercial use isn't necessary or sufficent for fair use, but it does help.
yeah, I appreciate this clarification. "publishing" seems like a nebulous concept to me and the general act of publishing something rarely seems to be what draws the attention of the lawyers (whereas making money seems clearer-cut).
So I suppose the question will hang on whether OpenAI is "publishing" if it returns similarly infringing results for the same prompts, even though those results are individually generated for a given user query.
I’m no lawyer but I don’t think an employee has much legal responsibility. At worst, they can get fired if they keep producing work that infringes on someone’s copyright.
Going with this line of reasoning, if a company uses ChatGPT to generate work, and it produces copyrighted work, the company can stop using ChatGPT.
I think the real question is whether OpenAI should be allowed to charge for generating infringing content. Even though the unit cost of the Mario drawing is negligible, the sum total of their infringing outputs may be making them a lot of money.