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Cake day: June 1st, 2023

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  • In the movie industry, everyone usually signs a work for hire contract that specifies who will have the rights to the completed film.

    However, in a recent case the director (Alex Merkin) did not sign a contract and then tried to claim copyright afterwards. The court said that directors have no inherent copyright over film:

    We answer that question in the negative on the facts of the present case, finding that the Copyright Actʹs terms, structure, and history support the conclusion that Merkinʹs contributions to the film do not themselves constitute a ʺwork of authorshipʺ amenable to copyright protection. … As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. … But a directorʹs contribution to an integrated ʺwork of authorshipʺ such as a film is not itself a ʺwork of authorshipʺ subject to its own copyright protection.



  • Simple question:

    If you are college student, learning to write professionally, is it fair use to download copyrighted books from Z-Library in order to become a better writer? If you are a musician, is it fair use to download mp3s from The Pirate Bay in order to learn about musical styles? How about film students, can they torrent Disney movies as part of their education?

    I’m certain that every court in the US would rule that this is not fair use. It’s not fair use even if pirated content ultimately teaches a student how to create original, groundbreaking works of writing, music, and film.

    Simply being a student does not give someone free pass to pirate content. The same is true of training an AI, and there are already reports that pirated material is in the openAI training set.

    If openAI could claim fair use, then almost by definition The Pirate Bay could claim fair use too.


  • Again, it’s not a question of reproducing books in an LLM. The allegation is that the openAI developers downloaded books illegally to train their AI.

    You need to pay for your copy of a book. That’s true if you are a student teaching yourself to write, and it’s also true if you are an AI developer training an AI to write. In the latter case, you might also need to pay for a special license.

    Is it possible that the openAI developers can bring the receipts showing they paid for each and every book and/or license they needed to train their AI? Sure, it’s possible. If so, the lawyers who brought the suit would look pretty silly for not even bother to check.

    But openAI used a whole lot of books, which cost a whole lot of money. So I wouldn’t hold my breath.


  • 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.

    Yes, and I named three of those factors:

    the key questions are often whether the use of the work (a) is commercial, or (b) may substitute for the original work. Furthermore, the amount of the work copied is also considered.

    And while you don’t need to meet all the criteria, the odds are pretty long when you fail three of the four (commercial nature, copying complete work rather than a portion, and negative effect on the market for the original).

    Think of it this way: if it were legal to download books in order to train an AI, then it would also be legal to download books in order to train a human student. After all, why would a human have fewer rights than an AI?

    Do you really think courts are going to decide that it’s ok to download books from The Pirate Bay or Z-Library, provided they are being read by the next generation of writers?