“Uncovering the Secret: Are Your Beloved Books Fueling the Next Generation of AI?”
Fair use is determined on a case-by-case basis. Factors considered in determining whether something constitutes fair use include:
- The purpose and character of the use, including whether such use is of a commercial nature, or is for non-profit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
The biggest hurdle for Microsoft, Open AI, and Meta Platforms, Inc. will be the fact that the development of generative AI is a concerted, commercial, for-profit undertaking, and not designed for non-profit educational purposes. Microsoft has invested 13 Billion into Open AI and is alleged to own a 49% stake in the tech behemoth. Internal communications obtained in discovery clearly indicated that Meta employees were acutely aware that harvesting data from LibGen to “educate”’ its generative AI software posed substantial legal risks. Meta intentionally removed Copyright Management Information (CMI) from harvested works in the California litigation.
