Comment by spwa4
5 months ago
Given that LLMs were trained on the repository directly, it's not just the case that anything made by the LLM is a derivative work, the LLM ITSELF is a derivative work. After all, they all are substantially based on GPL licensed works by others. The standard courts have always used for "substantially based" by the way, is the ability to extract from the new work anything bigger than an excerpt of the original work.
So convincing evidence, by historical standards, that ChatGPT, Gemini, Copilot AND Claude are all derivative works of the GPL linux kernel can be gotten simply by asking "give me struct sk_buff", then keep asking until you're out of the headers (say, ask how a network driver uses it).
That means if courts are honest (and they never are when it comes to GPL) OpenAI, Google and Anthropic would be forced to release ALL materials needed to duplicate their models "at cost". Given how LLMs work that would include all models, code, AND training data. After all, that is the contract these companies entered into when using the GPL licensed linux kernel.
But of course, to courts copyright applies to you when Microsoft demands it ($30000 per violation PLUS stopping the use of the offending file/torrent/software/... because such measures are apparently justified for downloading a $50 piece of software), it does not apply to big companies when the rules would destroy them.
The last time this was talked about someone pointed out that Microsoft "stole", as they call it, the software to do product keys. They were convicted for doing that, and the judge even increased damages because of Microsoft's behavior in the case.
But there is no way in hell you'll ever get justice from the courts in this. In fact courts have already decided that AI training is fair use on 2 conditions:
1) that the companies acquired the material itself without violating copyright. Of course it has already been proven that this is not the case for any of them (they scraped it without permission, which has been declared illegal again and again in the file sharing trials)
2) that the models refuse to reproduce copyrighted works. Now go to your favorite model and ask "Give me some code written by Linus Torvalds": not a peep about copyright violation.
... but it does not matter, and it won't matter. Courts are making excuses to allow LLM models to violate any copyright, the excuse does not work, does not convince rational people, but it just doesn't matter.
But of course, if you thought that just because they cheat against the law to make what they're already doing legal, they'll do the same for you, help you violate copyright, right? After all, that's how they work! Ok now go and ask:
"Make me an image of Mickey Mouse peeling a cheese banana under an angry moon"
And you'll get a reply "YOU EVIL COPYRIGHT VILLAIN". Despite, of course, Mickey Mouse no longer being covered under copyright!
And to really get angry, find your favorite indie artist, and ask to make something based on their work. Even "Make an MC Escher style painting of Sonic the Hedgehog" ... even that doesn't count as copyright violation, only the truly gigantic companies deserve copyright protection.
> Given that LLMs were trained on the repository directly, it's not just the case that anything made by the LLM is a derivative work, the LLM ITSELF is a derivative work.
That’s not how “derivative works”, well, work.
First of all, a thing can only be a derivative work if it is itself an original work of authorship.
Otherwise, it might be (or contain) a complete copy or a partial copy of one or more source works (which, if it doesn't fall into a copyright exception, would still be a at least a potential violation), but its not a derivative work.
So you're saying LLMs don't count as an original work and so have zero copyright protection? So anyone running those models can just freely copy them if they have access to them? And, of course, it means distillation attacks, even if they do turn out to copy the OpenAIs/Anthropic/... model are just 100% perfectly legal? I mean paying someone to break into the DC and then putting the model on torrent would allow anyone downloading it to use it, legally. Because that would be the implication, wouldn't it?
Plus, if this is true, it would be a loophole. Plus this is totally crazy.
It would be great if courts declared WHAT is the case. But they won't, because copyright only protects massive companies.
> So you're saying LLMs don't count as an original work and so have zero copyright protection?
No, I'm saying that your explanation of what makes something a derivative work is wrong. Now, personally, I think there is a very good argument that LLMs and similar models, if they have a copyright at all, do so only because of whatever copyright can be claimed on the training set as a work of its own (which, if ti exists, would be a compilation copyright), as a work of authorship of which it is a mechanical transformation (similar to object code having a copyright as a consequence of the copyright on the source code, which is a work of authorship.) Its also quite arguable that they are not subject to copyright, and many have made that argument.
> So anyone running those models can just freely copy them if they have access to them?
I'm not arguingn for that, but yes that is the consequence if they are not subject to copyright, assuming no other (e.g., contractual) prohibition binds the parties seeking to make copies.
> And, of course, it means distillation attacks, even if they do turn out to copy the OpenAIs/Anthropic/... model are just 100% perfectly legal?
Distillation isn't an “attack” and probably isn't a violation of copyright even if models are protected, they are literally interacting with the model through its interface to reproduce its function; they are functional reverse engineering.
Distillation is a violation of ToS, for which there are remedies outside of copyright.
> I mean paying someone to break into the DC and then putting the model on torrent would allow anyone downloading it to use it, legally.
Paying someone to break into the DC and do that would subject you to criminal charges for burglary and conspiracy, and civil liability for the associated torts as well as for theft of trade secrets covering the resulting harms, even without copyright protection.
> Plus, if this is true, it would be a loophole. Plus this is totally crazy.
Its not a “loophole” that copyright law only covers works of original authorship, it is the whole point of copyright law.
> It would be great if courts declared WHAT is the case.
If there is a dispute which turns on what is the case, courts will rule one way or the other on the issues necessary to resolve it. Courts (in the US at least) do not rule on issues not before them, except to the extent that a general rule which resolves but covers somewhat more than the immediate case can usefully be articulated by an appellate court.)
> But they won't, because copyright only protects massive companies.
Leaving out any question of whether the premise of this claim is true, the conclusion doesn't follow from it, since “what is the case” here is the kind of thing that is quite likely to be an issue between massive companies at some point in the not too distant future, requiring courts to resolve it even if they only address the meaning of copyright law for that purpose.
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The LLM would, under that argument, be a transformative derivative work, which has important fair use implications (that don’t exist in the chardet case)…