Comment by skissane
1 day ago
IANAL either but the answer likely depends on the jurisdiction
US standards for copyrightability require human creativity and model weights likely don’t have the right kind of human creativity in them to be copyrightable in the US. No court to my knowledge has ruled on the question as yet, but that’s the US Copyright Office’s official stance.
By contrast, standards for copyrightability in the UK are a lot weaker than-and so no court has ruled on the issue in the UK yet either, it seems likely a UK court would hold model weights to be copyrightable
So from Google/Meta/etc’s viewpoint, asserting copyright makes sense, since even if the assertion isn’t legally valid in the US, it likely is in the UK - and not just the UK, many other major economies too. Australia, Canada, Ireland, New Zealand tend to follow UK courts on copyright law not US courts. And many EU countries are closer to the UK than the US on this as well, not necessarily because they follow the UK, often because they’ve reached a similar position based on their own legal traditions
Finally: don’t be surprised if Congress steps in and tries to legislate model weights as copyrightable in the US too, or grants them some sui generis form of legal protection which is legally distinct from copyright but similar to it-I can already hear the lobbyist argument, “US AI industry risks falling behind Europe because copyrightability of AI models in the US is legally uncertain and that legal uncertainty is discouraging investment”-I’m sceptical that is actually true, but something doesn’t have to be true for lobbyists to convince Congress that it is
>don’t be surprised if Congress steps in and tries to legislate model weights as copyrightable in the US too
"Your Honor i didn't copy their weights, i used them to train my models weights"
> US standards for copyrightability require human creativity and model weights likely don’t have the right kind of human creativity in them to be copyrightable in the US. No court to my knowledge has ruled on the question as yet, but that’s the US Copyright Office’s official stance.
Has the US copyright office said that about model weights? I've only heard them saying that about images produced entirely from a prompt to a model.
I thought I read something by them explicitly addressing the question but I can’t find it now.
However, read page 22 of https://www.copyright.gov/comp3/chap300/ch300-copyrightable-... - it is their settled position that the output of a mechanical process cannot be copyrightable unless there was substantial human creative input into it - and it is pretty clear that AI training doesn’t involve human creative input in the relevant sense. Now, no doubt there is lots of human skill and art in picking the best hyperparameters, etc - but that’s not input of the right kind. An analogy - a photocopier does not create a new copyright in the copy, even though there is skill and art in picking the right settings on the machine to produce the most faithful copy. The human creativity in choosing hyperparameters isn’t relevant to copyrightability because it isn’t directly reflected in the creative elements of the model itself
A model with RLHF fine-tuning could be a different story - e.g. Anthropic went to a lot of effort to make Claude speak with a distinctive “voice”, and some of that involved carefully crafting data to use for fine-tuning, and the model may contain some of the copyright of that training data.
But, even if that argument also applies to Gemma or Llama - if someone intentionally further fine-tunes the model in order to remove that distinctive “voice”, then you’ve removed the copyrightable element from the model and what is left isn’t copyrightable. Because the really expensive part of building a model is building the foundation model, and that’s the part least likely to be copyrightable; whereas, fine-tuning to speak with a distinctive voice is more likely to be copyrightable, but that’s the easy part, and easy to rip out (and people have motivation to do so because a lot of people desire a model which speaks with a different voice instead)
A very good lawyer could argue that creating the data sets for training, doing the evals, and RLHF, constitutes -human creativity- and not a mechanical endeavor.
but who knows judges can be weird about tech
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In that line of reasoning, does it really matter how “close“ jurisdictions are to each other — also considering how what courts rule doesn’t matter as much in countries governed by civil law - but merely the enforcement of the Berne convention? As in, if something is considered to be under copyright in any one of all the signatory countries of it, the others have to respect that?
No, the Berne convention doesn’t work that way. It requires you to extend copyright protection to the works of the nationals of the other parties on the same terms as you offer it to the works of your own nationals; but if a certain category of works are excluded from copyright for your own nationals, it doesn’t require you to recognise copyright in those works when authored by foreign nationals, even if their own country’s laws do
Real example: UK law says telephone directories are eligible for copyright, US law says they aren’t. The US is not violating the Berne convention by refusing to recognise copyright in UK phone directories, because the US doesn’t recognise copyright in US phone directories either. A violation would be if the US refused to recognise copyright in UK phone directories but was willing to recognise it in US ones
Makes sense. Thanks!