The article also discusses the potential challenges that AI companies may face in proving fair use due to the "black box" problem, where the exact workings of AI systems are not fully understood. This could affect all four factors considered by courts in determining fair use, particularly the "amount and substantiality of the portion used". The article suggests that interested parties monitor the mentioned cases to understand how courts handle the fair use defense in the context of AI and whether the black box problem becomes a significant issue.
Key takeaways:
- Generative AI systems are facing intellectual property challenges in court, with copyright holders alleging that these systems infringe their copyrights both in the training process and in the creation of secondary works.
- Defendants are expected to argue that their activities are permissible under fair use, making these cases potentially precedent-setting in terms of fair use in the context of AI.
- The 'black box' problem, where AI companies do not know precisely how their systems make decisions, could present challenges in demonstrating fair use, particularly in terms of the 'amount and substantiality of the portion used' factor.
- Several cases are currently pending, including Tremblay v. OpenAI, Inc., Andersen v. Stability AI Ltd., Authors Guild v. OpenAI, Inc., Getty Images (US), Inc. v. Stability AI, Inc., and The New York Times Co. v. Microsoft Corp., which interested parties may wish to monitor for developments on this issue.