Broadcom is so good at it, they wrecked VMware years before even completing the acquisition.

Right, but it’s not a pure list of facts. When you set it to paper, it’s unique, and you could argue it’s art. In fact, a quick Google search found one such example: https://www.saatchiart.com/art/Painting-Shopping-list-1/2146403/10186433/view

Granted, that one was presumably intended to be a work of art on creation and your weekly shopping list isn’t, but the intent during creation isn’t all that important for US copyright law. You create it, you get the rights.

I’m not aware of any federal case law on copyright and AI. Happy to read some if you have a suggestion.

copyright only protects them from people republishing their content

This is not correct. Copyright protects reproduction, derivation, distribution, performance, and display of a work.

People also ingest their content and can make derivative works without problem. OpenAI are just doing the same, but at a level of ability that could be disruptive to some companies.

Yes, you can legally make derivative works, but without license, it has to be fair use. In this case, where not only did they use one whole work in its entirety, they likely scraped thousands of whole NYT articles.

This isn’t even really very harmful to the NYT, since the historical material used doesn’t even conflict with their primary purpose of producing new news.

This isn’t necessarily correct either. I assume they sell access to their archives, for research or whatever. Being able to retrieve articles verbatim through chatgpt does harm their business.

That is not correct. Copyright subsists in all original works of authorship fixed in any tangible medium of expression. https://www.law.cornell.edu/uscode/text/17/102

Legally, when you write your shopping list, you instantly have the rights to that work, no publication or registration necessary. You can choose to publish it later, or not at all, but you still own the rights. Someone can’t break into your house, look at your unpublished works, copy them, and publish them like they’re their originals.

There are issues other than publishing, but that’s the biggest one. But they are not acting merely as a conduit for the work, they are ingesting it and deriving new work from it. The use of the copyrighted work is integral to their product, which makes it a big deal.

True. I fully expect that the court will rule against OpenAI here, because it very obviously does not meet any fair use exemption.

Generally you’re correct, but copyright law does concern itself with learning. Fair use exemptions require consideration of the purpose character of use, explicitly mentioning nonprofit educational purposes. It also mentions the effect on the potential market for the original work. (There are other factors required but they’re less relevant here.)

So yeah, tracing a comic book to learn drawing is totally fine, as long as that’s what you’re doing it for. Tracing a comic to reproduce and sell is totally not fine, and that’s basically what OpenAI is doing here: slurping up whole works to improve their saleable product, which can generate new works to compete with the originals.

17 USC § 106, exclusive rights in copyrighted works:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Clearly, this is capable of reproducing a work, and is derivative of the work. I would argue that it’s displayed publicly as well, if you can use it without an account.

You could argue fair use, but I doubt this use would meet any of the four test factors, let alone all of them.

The problem is not that it’s regurgitating. The problem is that it was trained on NYT articles and other data in violation of copyright law. Regurgitation is just evidence of that.