Possible ruh-roh for AI companies? In a hearing last Friday on a case involving Meta AI, a judge was skeptical that AI training can be considered fair use.
As reported in Ars Technica (Judge on Meta’s AI training: “I just don’t understand how that can be fair use”, written by Ashley Belanger and available here), Judge Vince Chhabria, a judge who may be the first to rule on whether AI training data is fair use, appeared skeptical Thursday at a hearing where Meta faced off with book authors over the social media company’s alleged copyright infringement.
Meta, like most AI companies, holds that training must be deemed fair use, or else the entire AI industry could face immense setbacks, wasting precious time negotiating data contracts while falling behind global rivals. Meta urged the court to rule that AI training is a transformative use that only references books to create an entirely new work that doesn’t replicate authors’ ideas or replace books in their markets.
“You have companies using copyright-protected material to create a product that is capable of producing an infinite number of competing products,” Chhabria said. “You are dramatically changing, you might even say obliterating, the market for that person’s work, and you’re saying that you don’t even have to pay a license to that person.”
Declaring, “I just don’t understand how that can be fair use,” the judge apparently stoked little response from Meta’s attorney, Kannon Shanmugam, apart from a suggestion that any alleged threat to authors’ livelihoods was “just speculation,” Wired reported.
Authors may need to sharpen their case, which Chhabria warned could be “taken away by fair use” if none of the authors suing, including Sarah Silverman, Ta-Nehisi Coates, and Richard Kadrey, can show “that the market for their actual copyrighted work is going to be dramatically affected.”
Determined to probe this key question, Chhabria pushed authors’ attorney, David Boies, to point to specific evidence of market harms that seemed noticeably missing from the record.
“It seems like you’re asking me to speculate that the market for Sarah Silverman’s memoir will be affected by the billions of things that Llama will ultimately be capable of producing,” Chhabria said. “And it’s just not obvious to me that that’s the case.”
But if authors can prove fears of market harms are real, Meta might struggle to win over Chhabria, and that could set a precedent impacting copyright cases challenging AI training on other kinds of content.
When Shanmugam argued that copyright law doesn’t shield authors from “protection from competition in the marketplace of ideas,” Chhabria resisted the framing that authors weren’t potentially being robbed, Reuters reported.
“But if I’m going to steal things from the marketplace of ideas in order to develop my own ideas, that’s copyright infringement, right?” Chhabria responded.
Wired noted that he asked Meta’s lawyers, “What about the next Taylor Swift?” If AI made it easy to knock off a young singer’s sound, how could she ever compete if AI produced “a billion pop songs” in her style?
Some have pondered why Chhabria appeared so focused on market harms instead of hammering Meta for admittedly illegally pirating books that it used for its AI training, which seems to be obvious copyright infringement. According to Wired, “Chhabria spoke emphatically about his belief that the big question is whether Meta’s AI tools will hurt book sales and otherwise cause the authors to lose money,” not whether Meta’s torrenting of books was illegal.
The torrenting “seems kind of messed up,” Chhabria said, but “the question, as the courts tell us over and over again, is not whether something is messed up but whether it’s copyright infringement.”
Chhabria will not be making a snap decision in the case, planning to take his time and likely stressing not just Meta, but every AI company defending training as fair use the longer he delays. Understanding that the entire AI industry potentially has a stake in the ruling, Chhabria apparently sought to relieve some tension at the end of the hearing with a joke, Wired reported.
“I will issue a ruling later today,” Chhabria said. “Just kidding! I will take a lot longer to think about it.”
Will Judge Chhabria (or some other judge) decide that AI training is fair use or will authors and publishers lose if they struggle to demonstrate the negative impact of AI models training on their copyrighted works. The eventual decision has huge ramifications either way.
So, what do you think? Do you think AI training is fair use of copyrighted works? Please share any comments you might have or if you’d like to know more about a particular topic.
Image created using Microsoft Designer, using the term “robot lawyer and human lawyer arguing in front of a judge in court”.
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