We’ve discussed the pre-published release of the United States Copyright Office’s Part III report on AI and copyright in terms of the Trump administration’s firing of a top employ before its release and another immediately after (cough cough, trying to manipulate results you do not like), but we haven’t discussed the implication of the report. Mayer Brown published a great quick read analyzing the USCO report and how it might guide the courts. The TL;DR version is it appears to lean towards protecting copyright holders (thankfully, and maybe why Trump [AKA Elon’s lap dog] went on an illegal firing spree). The report discusses 3 main factors: the transformative nature of the end result, how the copyrighted materials were obtained, and how it might directly compete/damage the value of the original material.
So let’s dive into it quickly — Transformative. Does Gen AI, which is really pieces of works put together, actually do much transformation? That is a point to discuss. If it just summarizes a story, is that transformative? Does a collage create a transformative work? One area that will likely have much debate. AI advocates say Gen AI is hugely transformative, while opponents would argue it is a collage at its best.
How the material was obtained (and this comes up in the lawsuit against Meta where Meta has admitted to using torrents and illegal piracy sites to obtain copyrighted works): If the copyrighted works are obtained in sketchy ways, that should inform on the intent for Fair Use or not. If you use piracy sites to get something, you know what you are doing is wrong.
And finally, “the effect on the potential market for or value of the copyrighted work”: And this is where is gets interesting. The USCO brings up the effects of “market dilution”, ie. if AI generated romance novels flood the market, the original human-written novels that were used in the training will see fewer sales and lose out on potential profits. Now this is a huge statement. Most AI company lawyers have been arguing that one single romance novel generated by AI would not necessarily compete and devalue one other human-written AI work. But that is just one way of framing it, that makes them look good. With the idea of market dilution it is pretty clear that the Gen AI flooding of the market would clearly damage the original content sales and value, thus not qualifying for Fair Use of the original copyrighted material.
We shall see how this changes things or if Trump (AKA Elon) will try to force a different, butchered report to be in the final release that favors screwing over creators in favor of big tech stealing their works.
PS Gen AI “an image of Elon Musk and his lap dog that has a face that strongly resembles Donald Trump” brought to you by I don’t want to say this is the greatest AI image created, but it is pretty great.
