b
OK, intellectual property fans, here's a draft law review essay I wrote for you about AI and copyright, entitled "The art critics won't save you from the robots". It's really about a trend in copyright jurisprudence which is distorting the AI debate. You shift the trend, you fix the debate—and possibly a lot of what's wrong with copyright.
1/7
b
The simpler approach to AI, I propose, is to go back to the other thread: when you say you're going to mass-harvest the work of creators so that you can replace those creators at mass scale, that's dead center in the sphere of unfair business dealings. If you only pay creators with enough leverage and tell the others you're entitled to ignore stated conditions about a copyrighted work and take whatever you want, that's unfair dealing.
Isn't that easy? You don't need metaphysics.
5/7
b
When somebody tells you that a work is transformative and therefore fair use, they're equating comparative criticism with the whole of copyright law.
Fediverse, the thing I most want you to get out of this paper is that the ordinary property approach to copyright is why copyright is problematic. We don't have to go full libertarian here and declare that anybody can take anybody's work, but there's a vision of copyright without everybody on the defensive about when imitation is too much.
4/7
b
The ordinary property approach leads to a sort of analysis where judges try to isolate the spark of creativity in an earlier work and determine whether a later work used that spark, and if so, whether it added sufficiently novel changes to that spark. It's comparative art criticism, but by judges.
Brought to AI, it turns into downright metaphysics: is the spark of human creativity encoded in model parameters? And now everybody is confused.
3/7
b
There are two threads of copyright law:
∙ As protection of unique artistic expressions. There is a "spark of creativity" which is like any ordinary property.
∙ Unauthorized copying as bad faith business dealings. Creators can't create knowing that anyone can copy their work for free.
Both are part of the judicial understanding of copyright law, but at different times in history, one has been more prevalent than the other. Right now, the first is very ascendant.
2/7
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