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Generative Ai Meets Copyright

The article discusses the legal implications of generative AI systems, focusing on copyright issues related to their use of in-copyright works as training data. It highlights the importance of understanding the technology behind these systems and explores fair use defenses and technical strategies to mitigate copyright infringement risks. The collaboration between computer scientists and lawyers is emphasized as essential for navigating the evolving landscape of technology law and policy.

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4 views2 pages

Generative Ai Meets Copyright

The article discusses the legal implications of generative AI systems, focusing on copyright issues related to their use of in-copyright works as training data. It highlights the importance of understanding the technology behind these systems and explores fair use defenses and technical strategies to mitigate copyright infringement risks. The collaboration between computer scientists and lawyers is emphasized as essential for navigating the evolving landscape of technology law and policy.

Uploaded by

lavanya bhagra
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Intellectual Property

The Journal of Things We Like (Lots)


https://ip.jotwell.com

Generative AI Meets Copyright


Author : Pamela Samuelson

Date : July 11, 2023

Peter Henderson, Xuechen Li, Dan Jurafsky, Tatsunori Hashimoto, Mark A. Lemley & Percy Liang,
Foundation Models and Fair Use, available at SSRN (Mar. 27, 2023).

ChatGPT, Midjourney, and Copilot are among the numerous generative AI systems launched in the last
year or so. They have attracted a huge number of users as well as several lawsuits. Among the lawsuits’
claims are that the makers of these systems are direct and indirect infringers of copyright because of
their use of millions of in-copyright works as training data and because outputs of these generative AI
programs are infringing derivative works.

At the core of these AI systems are foundation models on which the authors focus in their fascinating
new article. They define this term as “large pre-trained machine learning models that are used as a
starting point for various computational tasks,” including generative AI systems that may produce text,
images, and/or software code in response to user prompts. The article identifies various actors who
contribute to elements of these AI systems, including data creators, data curators, model creators,
model deployers, and model users.

Those of us who are intent on understanding the legal implications of generative AI systems must, of
necessity, be prepared to learn about the technology underlying these systems. Fortunately, these six
Stanford researchers—some in computer science and some in law (our own redoubtable Mark Lemley
among them)—have provided an essential guide for intellectual property and technology law scholars to
the development and deployment of these systems. The article explores the extent to which developers
and deployers of generative AI systems may rely on fair use to justify their use of in-copyright works as
training data and how developers may limit their potential liability for infringements at the output stage.

For many copyright scholars, the article’s discussion of the fair use cases will be familiar, but the
application of these precedents in the context of generative AI will be particularly useful. Yes, of course,
the Authors Guild v. Google and iParadigms decisions suggest that computational uses of in-copyright
materials can be fair use, but other decisions such as Associated Press v. Meltwater and Fox v. TVEyes
suggest that much will depend on the particular uses that generative AI systems make of the in-
copyright materials.

Foundation Models is not an advocacy article asserting that all uses of in-copyright works (or at least all
that can be found on the open internet) as training data is fair use. Nor does the article argue that all
outputs should be non-infringing so long as the outputs are not verbatim copies of the contents of
specific training data. It offers a much more nuanced perspective about the challenges for system
developers in understanding how to model computationally the degree of “transformativeness” that
may be achieved by a second comer’s use of copyrighted works, as well as how to distinguish facts and
expressions within those works.

The most novel section of Foundation Models is its discussion of technical strategies that AI system
developers can employ to reduce the risk of copyright infringement when generative AI produces
outputs in response to user prompts. These include data and output filters to detect similarities between
the input data and outputs generated by the systems. Some technical mitigation strategies the authors

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Intellectual Property
The Journal of Things We Like (Lots)
https://ip.jotwell.com

describe must be done at the training data stage, while others, including data and output filters, can be
done at the deployment stage.

The article discusses the Field v. Google decision for its recognition that Field had not used the
“robots.txt” exclusion standard as a technique to stop Google from webcrawling his site. This
consideration weighed against Field’s copyright claim that the search engine infringed by copying his
content on that site. Foundation Models suggests that generative AI system developers and deployers
would be well-advised to adopt one or more technical mitigation strategies to bolster their fair use
claims.

While this article is well worth reading on the merits, it is also a noteworthy contribution to an emerging
literature in which computer scientists and lawyers collaborate to explore technology law and policy
issues. While not written in perhaps the most scintillating prose, this article is an outstanding example
of a successful collaboration to explore ways in which technologists and lawyers can work together to co-
evolve practical ways to achieve socially desirable outcomes.

Cite as: Pamela Samuelson, Generative AI Meets Copyright, JOTWELL (July 11, 2023) (reviewing Peter
Henderson, Xuechen Li, Dan Jurafsky, Tatsunori Hashimoto, Mark A. Lemley & Percy Liang, Foundation
Models and Fair Use, available at SSRN (Mar. 27, 2023)), https://ip.jotwell.com/generative-ai-meets-
copyright/.

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