Copyright Lawsuit against OpenAI: Can Technology Step In Where the Law Does Not?

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Authors Mona Awad and Paul Tremblay have filed a copyright lawsuit against OpenAI, alleging that their novels were used to train ChatGPT without their consent. The lawsuit faces many challenges, and does not have much legal precedent when viewed in the context of Australian law. OpenAI is the first case of its kind, and may set a new trend for copyright laws and digital technologies in the future.

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Imagine you read a book. You commit details of the book to memory and ruminate on the ideas contained in it. Somebody then asks you a question about the book. You provide them with a written response. Would you be surprised if the author of the book tried to sue you for copyright infringement? OpenAI is facing exactly this situation. Authors Mona Awad (Bunny, 13 Ways of Looking at a Fat Girl) and Paul Tremblay (The Cabin at the End of the World), filed a lawsuit against OpenAI last week, claiming the books were used to train ChatGPT, its artificial intelligence software, without their consent. It is the first lawsuit against ChatGPT that concerns copyright, The Guardian reported. The only difference from the scenario I've outlined is that instead of a human reading a book, OpenAI is accused of allowing its AI program to copy a book to its internal database and train on it.

OpenAI trained on novels and produced summaries when prompted

What's the lawsuit's chance of success? OpenAI is a large language model (LLM). These LLMs train on data in the form of written works in order to provide natural language responses to prompts. The basis of the lawsuit is that OpenAI trained itself on their novels and produced accurate summaries of their works when prompted. Notably, the lawsuit does not specify which specific parts of Awad and Tremblay's novels have been unlawfully copied and reproduced in the summaries. The lawsuit alleges OpenAI uses "shadow libraries" that illegally publish thousands of copyrighted works (using torrent systems). Their claim is based on a 2020 paper by OpenAI that reveals 15% of their training dataset comes from "two internet-based books corpora." .

Moore's Law suggests rate of development of OpenAI technology might be exponential

But the lawsuit faces some immediate hurdles. The litigants will need to prove that OpenAI most likely copied their works. They will also need to demonstrate the likelihood of some economic loss. Crucially, copyright protection does not extend to ideas. Copyright protection is limited to written expression. And though copying something to a database might be an act of infringement, that act alone is unlikely to cause significant harm to the economic interests of the authors. The real danger is that OpenAI can do some of the things human authors can do.

Under Australian Copyright Law, fair dealing exists but for more limited purposes

How does Australian law apply? OpenAI is just the first generation of what this technology looks like. No doubt, many authors (and other creative producers) are starting to wonder what will happen when OpenAI and similar technologies evolve. Moore's Law, a calculation that estimates the capacity of digital technology doubles roughly every two years, suggests the rate of this development might be exponential. What would happen if a similar claim was raised in Australia? Would our fair dealing laws step in and protect the development of technology—or would our law side with the authors? .

Incidental or technical copying applies only in narrow circumstances

The United States has the doctrine of fair use in its copyright laws. In the past, fair use has been used to draw a balance between new technologies and established copyright interests. The Sony video cassette recorder case is a famous example. In the Sony case, a majority of the US Supreme Court permitted homeowners to record their favorite television shows and watch them later.

On the other hand, Australia does not have a fair use doctrine. Under the Australian Copyright Act, fair dealing exists but for more limited purposes, such as for legal advice, research and study. There is also the concept of incidental or technical copying, which applies only in narrow circumstances.

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