It’s Wednesday. I don’t know what’s happening with the NYC mayor election, and honestly I don’t want to, so let’s talk about different things. For today’s header, we’re going to dive into the exciting world of copyright law!

In what will certainly not be the last word on the matter, Anthropic recently won a court case alleging copyright violation in its use of copyrighted materials to train AI. The decision hinged upon an important piece of copyright law, the fair use doctrine. 

Fair use is the aspect of copyright law that allows for certain uses of copyright works to be permitted. As written in the Copyright Act of 1976, fair use is judged by considering four factors: 

1. the purpose and character of the use (are you profiting? Using it for an educational purpose?)
2. the nature of the copyrighted work (is the work you’re borrowing from fiction? Non-fiction?)
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole (how much of a work are you using? Is it a central part of the work?)
4. the effect of the use upon the potential market for or value of the copyrighted work (does it impact potential sales of an item)

Beyond these four factors, however, in the past decade or two, courts have taken another approach. Now, judges often ask “Is it a transformative use of a copyrighted work?” That is to say, does the new work create something new rather than merely reproduce a work. And that is a difficult question to tackle, legally.

It’s often said that AI doesn’t produce anything new, but I don’t think that’s particularly true – at least not any more than the work of most creators. Generative AI can take different elements from its corpus and combine and remix them. I don’t necessarily think that’s all that different from a creator weaving together multiple influences to produce a distinct work. And in this particular case, a judge seemed to agree with that, though there will be appeals and more lawsuits against Anthropic and other AI companies before a more universal verdict is delivered (I expect it will ultimately be a case for the Supreme Court to decide).

You may disagree on whether or not AI is “transformative” in its use of copyrighted works. It’s probably not the example I’d point to as the best of what fair use offers. Nevertheless, fair use is an important right to defend. The same principle that allowed Anthropic to do this is ultimately the same legal principle that lets you post your favorite Simpsons gif without Disney suing you. It’s a recognition that, even as copyright is a necessity “to promote the Progress of Science and useful Arts” (so much so that it made it into our Constitution! The Founders thought to add this before free speech!), there need to be avenues to allow others to use that copyrighted work for fair purposes without needing the explicit permission of the copyright holder. It’s also on the check on the power of copyright holders, who cannot completely restrict how their material is used for the incredibly long duration that they have it.

Of course, fair use is only one legal wrinkle with AI. And Anthropic didn’t skate completely: The judge ruled that they can still be sued over pirating the works it used to train its AI (7 million books!). So while the use of copyrighted material was determined to be fair, the way they obtained that material is still a violation of the law. 

Thanks for coming to Cordy’s Copyright Corner. Share all sorts of fairly used media as you discuss the politics of the day. And, as always, be kind and thoughtful. Cheers.