But the crime in the human instance is the reproduction, not the storage. So the crime in the AI circumstance would not be in the training, but in prompting the output.
And of course AIs are excellent at taking direction, so:
If I prompt it with "Harry Potter, but Voldemort wins: dark, and Hermione is a sex slave to Draco Malfoy" and get "Manacled," that's copyright infringement, and on me, not on the LLM/training.
If I prompt it with "Harry Potter, but Voldemort wins: dark, and Hermione is a sex slave to Draco Malfoy, and change enough to avoid infringing copyright," and get "Alchemised," then that should be fine. I doubt the legal world agrees with me though.
> But the crime in the human instance is the reproduction, not the storage. So the crime in the AI circumstance would not be in the training, but in prompting the output.
I wouldn't be so sure, at least under US law. 17 USC 101 defines a "copy" as:
[...] material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
If I memorize a work what ends up in my brain is not a copy according to that definition because with current technology there is no machine or device which can be used to perceive, reproduce, or otherwise communicate it. The work can only be perceived, reproduced, or otherwise communicated by using my brain which is not a machine or device.
No copy in my brain means that memorizing the work cannot infringe the copyright owner's exclusive right to reproduce the work in copies.
An LLM, unlike my brain, is a machine or device which can be used to perceive, reproduce, or otherwise communicate the work and so the work stored in the LLM is a copy.
Training an LLM then, unlike a brain memorizing a work, makes a copy and so would be covered by the copyright owner's exclusive right to make copies.
That's going to need to be justified, probably by arguing fair use.
I'd argue your brain is that "machine or device" -- the fact that the storage and the playback mechanism are one and the same is irrelevant. The fact that you have to be willing/induced to replay the content back just makes you a worse machine :-)
Interesting argument but not likely to go far. As far as I can tell US copyright law has never been taken to include brains as machines or devices.
This is actually relevant in some real cases, namely improvised works. Attempts to claim copyright on improvised works that were not recorded have generally failed. If brains counted as machines or devices than the work inside the performer's head would be a recording and the work would have copyright.
That is one of the reasons it is usually recommended that musicians should record their live performances. That gets them copyright on anything they improvise during the show. Also it gets them copyright on that particular performance of their music, which helps them go after anyone who makes an unauthorized recording of the show. (Copyright is only automatic upon recording when the recording is by or under the authority of the creator).
