In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
Considering that OpenAI is making a commercial profit from developing its ML models, they seem to have missed #1 already. #3 also because the model usually ingests the entire work, not just part of it.
Actually, this makes me wonder if the design of OpenAI’s business structure is intended to try to abuse this:
The organization consists of the non-profit OpenAI, Inc. registered in Delaware and its for-profit subsidiary OpenAI Global, LLC.
So, the “non-profit” part of OpenAI collects the data for “research” purposes, but then the for-profit side sells the product.
All of them are considered in tandem, not individually.
Considering that OpenAI is making a commercial profit from developing its ML models
They are losing money during development (all those GPUs are not free and running them costs a lot of energy), they are making the money after it’s trained. Just factual inaccuracy.
And being used for commercial purpose is not automatic rejection. Take YouTube, where fair use comes up constantly. Almost all the cases are for commercial purpose, but most qualify under fair use.
#3 also because the model usually ingests the entire work, not just part of it.
While they are trained on full works, the used work in the result is different. Probably minimal considering the size of the models. The fact that some courts already ruled that “AI” works can’t be copyrighted gives weight to the argument that it’s a unique work.
It’s very hard to argue that “AI” generated is different from someone looking at the original and making a copy by hand. And since the latter is allowed, by the same token is the former.
That is super not how fair use works:
Considering that OpenAI is making a commercial profit from developing its ML models, they seem to have missed #1 already. #3 also because the model usually ingests the entire work, not just part of it.
Actually, this makes me wonder if the design of OpenAI’s business structure is intended to try to abuse this:
So, the “non-profit” part of OpenAI collects the data for “research” purposes, but then the for-profit side sells the product.
All of them are considered in tandem, not individually.
They are losing money during development (all those GPUs are not free and running them costs a lot of energy), they are making the money after it’s trained. Just factual inaccuracy.
And being used for commercial purpose is not automatic rejection. Take YouTube, where fair use comes up constantly. Almost all the cases are for commercial purpose, but most qualify under fair use.
While they are trained on full works, the used work in the result is different. Probably minimal considering the size of the models. The fact that some courts already ruled that “AI” works can’t be copyrighted gives weight to the argument that it’s a unique work.
It’s very hard to argue that “AI” generated is different from someone looking at the original and making a copy by hand. And since the latter is allowed, by the same token is the former.