AI and Copyright: Expanding Copyright Hurts Everyone

* The use is commercial (a number of emulators are paid access, and the emulator case that carved out the biggest fair use space for them was Connectix Virtual Game Station a very explicitly commercial product)

* The nature of the work is imaginative and creative. No one can argue games and game consoles aren't imaginative and creative works.

* Quantity of use. A perfect emulator must replicate 100% of the functionality of the system being emulated, often times including bios functionality.

* Impact on market. Emulators are very clearly in direct competition with the products they emulate. This was one of Sony's big arguments against VGS. But also just look around at the officially licensed mini-retro consoles like the ones put out by Nintento, Sony and Atari. Those retro consoles are very clearly competing with emulators in the retro space and their sales were unquestionably affected by the existence of those emulators. Royalty avoidance is also in play here since no emulator that I know of pays licensing fees to Nintendo or Sony.

So are emulators a violation of copyright? If not, what is the substantial difference here? An emulator can duplicate a copyrighted work exactly, and in fact is explicitly intended to do so (yes, you can claim its about the homebrew scene, and you can look at any tutorial on setting up these systems on youtube to see that's clearly not what people want to do with them). Most of the AI systems are specifically programmed to not output copyrighted works exactly. Imagine a world where emulators had hash codes for all the known retail roms and refused to play them. That's what AI systems try to do.

Just because you have enumerated the 4 points and given 1 word pithy arguments for something illegal happening does not mean that it is. Judge Alsup laid out a pretty clear line of reasoning for why he reached the decision he did, with a number of supporting examples [1]. It's only 32 pages, and a relatively easy read. He's also the same judge that presided over the Oracle v. Google cases that found Google's use of the java APIs to be fair use despite that also meeting all 4 of your descriptions. Given that, you'll forgive me if I find his reasoning a bit more persuasive than your 52 word assertion that something illegal is happening.

[1]: https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwbgqlzpw/...

Surely making copyright even stronger (and even expanding it to cover style as some have argued in response to the Ghibli style stuff) will have no unintended consequences going forward into a future where more and more technology is locked down by major manufacturers with a strong incentive to use and abuse IP law to prevent competition and open alternatives... right?

But that's the issue, isn't it? Someone has bought a legitimate copy and put it on Napster with the intention of providing copies to people when it's fair use.

If people then download it for non-fair use purposes while they all wink at each other, it doesn't become fair use just because you said it was.

But if the person(s) downloading it actually do make fair use of it, isn't that different? How is it unlike borrowing a book from the library and quoting an excerpt from it in your criticism?

> Can you and your buddies do this without forming a legal corporation or partnership?

Partnerships aren't corporations and are generally what gets formed by default if nobody files any paperwork. There are often reasons that's not what you want, but that's not the point here.

It's also sort of like, so if you filed official paperwork for a limited-liability partnership that lets anyone in then you could do it? If that was actually the thing that matters then they would just do that, right? Which also implies that it shouldn't be, because vacuous requirements are unproductive.

> "stealing the work of every single artist, living and dead, for the sole purpose of making a profit"

is begging the question. The phrase "stealing" inherently presumes a crime has been committed when that is the very thing up for debate. The note that this is "for the sole purpose of making a profit" asks the reader to infer that one can not make a profit and also engage in fair use, and yet that is clearly not true. And that puts aside entirely that you're not referencing a "specific case" here, but generalizing to all forms of AI training.

We can start by examining the "stealing" phrasing, noting that up until fairly recently it was an axiom in a lot of "hacker" places that "copying is not theft". It feels somewhat contradictory to me to find that now that it's our work that's being copied, suddenly a lot of hackers are very keen on calling it theft.

We can note that a lot of our careers rest on the idea that copying is not prima facie a crime or theft. Certainly IBM wanted it to be so, and yet their BIOS was cloned and many of our careers were kickstarted (or at least kicked into high gear) by the consequences of that. Or how about the fact that despite what Apple would really like to be true, you can't stop people from copying your really cool idea from looking at it and making something similar. They couldn't win that battle against Microsoft, and they couldn't win it against Google or Samsung either.

We can talk about the fact that there is a lot of disagreement that the dead should have any IP rights at all. Notably again many "hacker" spaces were quite vocal about how the various "lifetime+" IP laws were actually detrimental to creativity and society. Until recently it was the Walt Disney corporation in their pursuit of making a profit that was one of the largest advocates for copyrights to be extended long after the creator was dead and gone.

We could also talk (again) about how many forms of fair use are pursued for "the sole purpose of making a profit". See the previous references to the IBM BIOS and the copying of Apple's GUIs. But there is also parody music like Weird Al, or Campbell v. Acuff-Rose Music. We can look also to the previously mentioned Connectix Virtual Game Station and other emulators or to the Oracle V. Google lawsuits. We can look at how TiVo's entire business model was to enable millions of people to create copies of copyrighted material every day, automatically. Or Kelly v. Arriba Soft (which is basically why you can do an image search today) and Suntrust Bank v. Houghton Mifflin (also relevant for the discussion re "the dead").

And again, most related to AI would be Authors Guild v. Google for the ingestion of thousands of copyrighted materials to in the pursuit of profit and creating the Google Scholar application. And application which I again note produces partial, but 100% faithful copies of that original work for the user and does so intentionally, something AI system actively try to avoid.

Which is why I started by asking you to walk the tech stack. If you think the law needs to be updated or you disagree with the current rulings on this matter, I can certainly understand that. So where do you propose drawing the line? What are the specific items that you feel distinguish training an AI from the various other fair use cases that have come before. Why is Google Scholar scanning in thousands of copyrighted materials with the express purpose of both making those materials searchable and displaying copies of that material ok, but an AI scanning in books with the express purpose of creating new material not ok? Why is Android, Windows, Gnome, KDE and other GUIs so very clearly copying the style (if not the works) of Apple ok, but Stable Diffusion producing new art works copying styles not?