The American Matthew Butterick has started a legal crusade against generative artificial intelligence (AI). In 2022, he filed the first lawsuit in the history of this field against Microsoft, one of the companies that develop these types of tools (GitHub Copilot). Today, heâs coordinating four class action lawsuits that bring together complaints filed by programmers, artists and writers.
If successful, he could force the companies responsible for applications such as ChatGPT or Midjourney to compensate thousands of creators. They may even have to retire their algorithms and retrain them with databases that donât infringe on intellectual property rights.
Iâm actually fine with generative AI that uses only public domain and creative commons content. Iâm not threatened by AI as a creative, because AI can only iterate on its own training data. Only humans can create something genuinely new and original. My objection is solely on the basis of theft. If we agree that everybody has the basic right to control their own data and content, than that logically has to extend to artists: they must have the right to control their own work, and consenting to humans viewing it isnât the same as consenting to having it fed into an AI.
I suspect there would be a lot more artists open to considering the benefits of a generative AI using only public domain and creative commons works if they werenât justifiably aggrieved at having their lifeâs work strip-mined. Expecting the victims of exploitation to be 100% rational about their exploiter (or other adjacent parties trying to argue why itâs fine when they do it) isnât reasonable. At this point, artists simply donât trust the generative AI industry, and there needs to be a significant and concerted effort to rectify existing wrongs to repair that trust. One organisation offering a model based on creative commons artworks, when the rest of the generative AI industry is still stealing everything thatâs not nailed down, does not promote trust. Regulate, compensate, mend some fences, and build trust. Then go and talk to artists, and have the conversations that should have been had before the first AI models were built. The AI industry needs to prove it can be trusted, and then learn to ask for permission. Then, maybe, it can ask for forgiveness.
Iâm actually fine with generative AI that uses only public domain and creative commons content. Iâm not threatened by AI as a creative, because AI can only iterate on its own training data. Only humans can create something genuinely new and original.
I donât like this kind of thought because it tries to minimize the role of the person at the controls. There is no reason why a person using a model trained on 1400s art, African art, anime, photography, cubism, sculpture, cullinary art, impressionism, nature, and ancient Greco-Roman etc. wouldnât be able to come up with novel concepts, executions, and styles, since itâs very much a combination of styles that gives rise to new types of art in all other mediums. And thatâs before you even start fine-tuning on your own stuff.
My objection is solely on the basis of theft. If we agree that everybody has the basic right to control their own data and content, than that logically has to extend to artists: they must have the right to control their own work, and consenting to humans viewing it isnât the same as consenting to having it fed into an AI.
It isnât like a human viewing it, but it is very like other protected uses of data. To quote the article:
Fair use protects reverse engineering, indexing for search engines, and other forms of analysis that create new knowledge about works or bodies of works. Here, the fact that the model is used to create new works weighs in favor of fair use as does the fact that the model consists of original analysis of the training images in comparison with one another.
This is just a way to analyze and reverse engineer concepts in images so you can make your own original works. Reverse engineering has been fair use since Sega Enterprises Ltd. v. Accolade, Inc in 1992, and then affirmed in Sony Computer Entertainment, Inc. v. Connectix Corporation.
In the US, fair use balances the interests of copyright holders with the publicâs right to access and use information. There are rights people can maintain over their work, and the rights they do not maintain have always been to the benefit of self-expression and discussion. There are just some things you canât stop people from doing with things youâve shared with them, and we shouldnât be trying to change that.
Calling this stealing is self-serving, manipulative rhetoric that unjustly vilifies people and misrepresents the reality of how these models work and how creative the people who use them can be.
If the models were purely being used for research, I might buy the argument that fair use applies. But the fair use balancing act also incorporates an element of whether the usage is commercial in nature and is intended to compete with the rights holder in a way that affects their livelihood. Taking an artistâs work in order to mass produce pieces that replicates their style, in such a way that it prevents the artist from earning a living, definitely affects their livelihood, so there is a very solid argument that fair use ceased to apply when the generative AI entered commercial use. The people that made the AI models arenât engaging in self-expression at this point. The users of the AI models may be, but theyâre not the ones that used all the art without consent or compensation. The companies running the AI models are engaged purely in profit-seeking, making money from other peopleâs work. Thatâs not self-expression and itâs not discussion. Itâs greed.
Although the courts ruled that reverse engineering software to make an emulator was fair use, itâs worth bearing in mind that the emulator is intended to allow people to continue using software they have purchased after the lifespan of the console has elapsed - so the existence of an emulator is preserving consumersâ rights to use the games they legally own. Taking artistsâ work to create an AI so you no longer need the artist has more in common with pirating the games rather than creating an emulator. Youâre not trying to preserve access to something you already have a licence to use. An AI isnât replacing artwork that you have the right to use but that you can no longer access because of changing hardware. AI is allowing you to use an artistâs work in order to cut them out of the equation without you ever paying them for the work you have benefitted from.
The AI models can combine concepts in new ways, but it still canât create anything truly new. An AI could never have given us something like Cubism, for example, because visually nothing like it had ever existed before, so there would have been nothing in its training data that could have made anything like it. What a human brings to the process is life experience and an emotional component that an AI lacks. All an AI can do is combine existing concepts into new combinations (like combining fried eggs and flowers - both of those objects are existing concepts). It canât create entirely new things that arenât represented somewhere in its training data. If it didnât know what fried eggs and flowers were, it would be unable to create them.
If the models were purely being used for research, I might buy the argument that fair use applies. But the fair use balancing act also incorporates an element of whether the usage is commercial in nature and is intended to compete with the rights holder in a way that affects their livelihood. Taking an artistâs work in order to mass produce pieces that replicates their style, in such a way that it prevents the artist from earning a living, definitely affects their livelihood, so there is a very solid argument that fair use ceased to apply when the generative AI entered commercial use.
Fair Use also protects commercial endeavors. Fair use is a flexible and context-dependent doctrine based on careful analysis of four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market. No one factor is more important than the others, and it is possible to have a fair use defense even if you do not meet all the criteria of fair use.
More importantly, I donât think more works in a style would prevent an artist from making a living. IMO, it could serve as an ad to point people where to get âthe genuine articleâ.
The people that made the AI models arenât engaging in self-expression at this point. The users of the AI models may be, but theyâre not the ones that used all the art without consent or compensation. The companies running the AI models are engaged purely in profit-seeking, making money from other peopleâs work. Thatâs not self-expression and itâs not discussion. Itâs greed.
Agreed, but donât forget that there are plenty of regular people training their own models and offering them to everyone for free who donât have a company apparatus to defend them, and they are targeted and not spared this ire.
Although the courts ruled that reverse engineering software to make an emulator was fair use, itâs worth bearing in mind that the emulator is intended to allow people to continue using software they have purchased after the lifespan of the console has elapsed - so the existence of an emulator is preserving consumersâ rights to use the games they legally own. Taking artistsâ work to create an AI so you no longer need the artist has more in common with pirating the games rather than creating an emulator. Youâre not trying to preserve access to something you already have a licence to use. An AI isnât replacing artwork that you have the right to use but that you can no longer access because of changing hardware. AI is allowing you to use an artistâs work in order to cut them out of the equation without you ever paying them for the work you have benefitted from.
Making novel works has nothing in common with reproducing and distributed someone elseâs creation. It is preserving the publicâs rights to self-expression, no matter the medium. No artist can insert themselves in the conversation over a style to try to collect payment. Imagine if every one of their inspirations did the same to them?
The AI models can combine concepts in new ways, but it still canât create anything truly new. An AI could never have given us something like Cubism, for example, because visually nothing like it had ever existed before, so there would have been nothing in its training data that could have made anything like it.
Cubism is, in part, a combination of the simplified and angular forms of ancient Iberian sculptures, the stylized and abstract features of African tribal masks, and the flat and decorative compositions of Japanese prints. Nothing like it existed before because no one had combined those specific concepts quite yet.
What a human brings to the process is life experience and an emotional component that an AI lacks.
It is still a human making generative art, and they can use their emotions and learned experiences to guide the creation of works. The model is just a tool to be harnessed by people.
All an AI can do is combine existing concepts into new combinations (like combining fried eggs and flowers - both of those objects are existing concepts). It canât create entirely new things that arenât represented somewhere in its training data. If it didnât know what fried eggs and flowers were, it would be unable to create them.
New tools have already made what youâre talking about possible, and they will continue to improve.
