Katherine Forrest Discusses Questions of Copyright in Generative AI With The Markup

Litigation partner Katherine Forrest spoke with The Markup about appropriate legal frameworks for determining copyright infringement in the context of generative AI tools such as ChatGPT. In “Copyright Showdown: AI’s Next Frontier,” published on April 22, Katherine discusses unsettled questions of infringement, fair use, authorship and ownership, which will be debated in the courts.

“With the current environment with generative AI, there’s a new and different question about copyrighted works,” Katherine notes, “which is ... does making a copy of the copyrighted work infringe on the author’s copyright?” She adds that the training of AI models requires copying the entirety of an existing work “in order to determine the probabilistic relationship of one part of the work to the other. In other words, if you chopped it up so all you had were a few words here and a few words there, it wouldn’t give you the information that you need, which is, how is this constructed. So we know 100 percent is copied.”

Katherine also discusses the question of fair use with respect to the use of copyrighted works to train AI, noting that one of the four factors for determining fair use is whether the use of a copyrighted work will impinge on that work’s commercial opportunity. “For generative AI, the value is not necessarily the discovery of the underlying creative work but rather a replacement of the work with something else,” Katherine observes. “It is 100 percent copy leading to 100 percent replacement. And it’s absolutely commercial.”

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