| Maybe, but... "Fair use" is pretty much entirely a US concept, and similar concepts in other countries aren't isomorphic to it. The model does have a radically different form from its inputs. So you could easily imagine that being "transformative enough" for US fair use. A lot of the other fair use elements look pretty easy to apply, too. Although there's still the question of whether all the intermediate copies you made to create the model were fair use... In fact, I'll even concede that a court could find that a model wasn't a derivative work of its inputs to begin with, and not even have to get to the fair use question. The argument would be that the model doesn't actually reproduce any of the creative elements of any particular training input. I do think a finding like that would be a much bigger stretch than a finding that the model was copyrightable. I could easily see a world where the model was found derivative but was not found copyrightable. And it's actually not clear to me at all that the model has to be copyrightable to infringe the copyright in something else, so that's another mess. Somewhat related, even if the model itself isn't infringing, it's definitely possible to have most models create outputs that are very similar to (some specific examples in) their training data... in ways that obviously aren't transformative. Outputs that might compete with the original training data and otherwise fail to be fair use. So even if the model is in the clear, users might still have to watch out. |