The final step in training a model is publishing the conclusions of the quantitative analysis of the temporarily copied documents as software code. Code itself is a form of expressive speech - and that expressivity is key to the fight for privacy, because the fact that code is speech limits how governments can censor software:

https://www.eff.org/deeplinks/2015/04/remembering-case-established-code-speech/

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Are models infringing? Well, they certainly *can* be. In some cases, it's clear that models "memorized" some of the data in their training set, making the fair use, transient copy into an infringing, permanent one. That's generally considered to be the result of a programming error, and it could certainly be prevented (say, by comparing the model to the training data and removing any memorizations that appear).

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Not every seeming act of memorization *is* a memorization, though. While specific models vary widely, the amount of data from each training item retained by the model is *very* small. For example, Midjourney retains about one byte of information from each image in its training data. If we're talking about a typical low-resolution web image of say, 300kb, that would be one three-hundred-thousandth (0.0000033%) of the original image.

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Typically in copyright when one work contains 0.0000033% of another work, we don't even raise fair use. Rather, we dismiss the use as *de minimis* (short for *de minimis non curat lex* or "The law does not concern itself with trifles"):

https://en.wikipedia.org/wiki/De_minimis

Busting someone who takes 0.0000033% of your work for copyright infringement is like swearing out a trespassing complaint against someone because the edge of their shoe touched one blade of grass on your lawn.

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But some works or elements of work appear *many* times online. For example, the Getty Images watermark appears on millions of similar images of people standing on red carpets and runways, so a model that takes even in infinitesimal sample of each one of those works might still end up being able to produce a whole, recognizable Getty Images watermark.

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The same is true for wire-service copy or widely syndicated texts: there might be dozens or even hundreds of copies of these works in training data, resulting in the memorization of long passages from them.

This *might* be infringing (we're getting into some gnarly, unprecedented territory here), but again, even if it is, it wouldn't be a big hardship for model makers to post-process their models by comparing them to the training set, deleting any inadvertent memorizations.

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Even if the resulting model had *zero* memorizations, this would do nothing to alleviate the (legitimate) concerns of creative workers about the creation and use of these models.

So here's the first nuance in the AI art debate: as a *technical* matter, training a model isn't a copyright infringement. Creative workers who hope that they can use copyright to prevent AI from changing the creative labor market are likely to be very disappointed in court:

https://www.hollywoodreporter.com/business/business-news/sarah-silverman-lawsuit-ai-meta-1235669403/

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But copyright law isn't a fixed, eternal entity. We write new copyright laws all the time. If *current* copyright law doesn't prevent the creation of models, what about a *future* copyright law?

Well, sure, that's a possibility. The first thing to consider is the possible collateral damage of such a law. The legal space for scraping enables a wide range of scholarly, archival, organizational and critical purposes.

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We'd have to be *very* careful not to inadvertently ban, say, the scraping of a politician's campaign website, lest we enable liars to run for office and renege on their promises, while they insist that they never made those promises in the first place. We wouldn't want to abolish search engines, or stop creators from scraping their own work off sites that are going away or changing their terms of service.

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Now, onto quantitative analysis: counting words and measuring pixels are *not* activities that you should need permission to perform, with or without a computer, even if the person whose words or pixels you're counting doesn't want you to. You should be able to look as hard as you want at the pixels in Kate Middleton's family photos, or track the rise and fall of the Oxford comma, and you shouldn't need anyone's permission to do so.

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Finally, there's publishing the model. There are plenty of published mathematical analyses of large corpuses that are useful and unobjectionable. I love me a good Google n-gram:

https://books.google.com/ngrams/graph?content=fantods%2C+heebie-jeebies&year_start=1800&year_end=2019&corpus=en-2019&smoothing=3

And large language models fill all kinds of important niches, like the Human Rights Data Analysis Group's LLM-based work helping the Innocence Project New Orleans' extract data from wrongful conviction case files:

https://hrdag.org/tech-notes/large-language-models-IPNO.html

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So that's nuance number two: if we decide to make a new copyright law, we'll need to be *very* sure that we don't accidentally crush these beneficial activities that don't undermine artistic labor markets.

This brings me to the most important point: *passing a new copyright law that requires permission to train an AI won't help creative workers get paid or protect our jobs*.

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Getty Images pays photographers the *least* it can get away with. Publishers contracts have transformed by inches into miles-long, ghastly rights grabs that take *everything* from writers, but *still* shifts legal risks onto them:

https://pluralistic.net/2022/06/19/reasonable-agreement/

Publishers like the *New York Times* bitterly oppose their writers' unions:

https://actionnetwork.org/letters/new-york-times-stop-union-busting

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These large corporations already control the copyrights to *gigantic* amounts of training data, and they have means, motive and opportunity to license these works for training a model in order to pay us less, and they are engaged in this activity *right now*:

https://www.nytimes.com/2023/12/22/technology/apple-ai-news-publishers.html

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Big games studios are *already* acting as though there was a copyright in training data, and requiring their voice actors to begin every recording session with words to the effect of, "I hereby grant permission to train an AI with my voice" and if you don't like it, you can hit the bricks:

https://www.vice.com/en/article/5d37za/voice-actors-sign-away-rights-to-artificial-intelligence

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If you're a creative worker hoping to pay your bills, it doesn't matter whether your wages are eroded by a model produced without paying your employer for the right to do so, or whether your employer got to double dip by selling your work to an AI company to train a model, and then used that model to fire you or erode your wages:

https://pluralistic.net/2023/02/09/ai-monkeys-paw/#bullied-schoolkids

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Individual creative workers rarely have any bargaining leverage over the corporations that license our copyrights. That's why copyright's 40-year expansion (in duration, scope, statutory damages) has resulted in larger, more profitable entertainment companies, and lower payments - in real terms and as a share of the income generated by their work - for creative workers.

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As Rebecca Giblin and I write in our book *Chokepoint Capitalism*, giving creative workers more rights to bargain with against giant corporations that control access to our audiences is like giving your bullied schoolkid extra lunch money - it's just a roundabout way of transferring that money to the bullies:

https://pluralistic.net/2022/08/21/what-is-chokepoint-capitalism/

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There's an historical precedent for this struggle - the fight over music sampling. 40 years ago, it wasn't clear whether sampling required a copyright license, and early hip-hop artists took samples without permission, the way a horn player might drop a couple bars of a well-known song into a solo.

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Many artists were rightfully furious over this. The "heritage acts" (the music industry's euphemism for "Black people") who were most sampled had been given *very* bad deals and had seen very little of the fortunes generated by their creative labor. Many of them were desperately poor, despite having made millions for their labels. When other musicians started making money off that work, they got mad.

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In the decades that followed, the system for sampling changed, partly through court cases and partly through the commercial terms set by the Big Three labels: Sony, Warner and Universal, who control 70% of all music recordings. Today, you generally can't sample without signing up to one of the Big Three (they are reluctant to deal with indies), and that means taking their standard deal, which is *very* bad, and also signs away your right to control your samples.

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So a musician who wants to sample has to sign the bad terms offered by a Big Three label, and then hand $500 out of their advance to one of those Big Three labels for the sample license. That $500 typically doesn't go to another artist - it goes to the label, who share it around their executives and investors. This is a system that makes every artist poorer.

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But it gets worse. Putting a price on samples changes the kind of music that can be economically viable. If you wanted to clear all the samples on an album like Public Enemy's "It Takes a Nation of Millions To Hold Us Back," or the Beastie Boys' "Paul's Boutique," you'd have to sell every CD for $150, just to break even:

https://memex.craphound.com/2011/07/08/creative-license-how-the-hell-did-sampling-get-so-screwed-up-and-what-the-hell-do-we-do-about-it/

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Sampling licenses don't just make every artist financially worse off, they also prevent the creation of music of the sort that millions of people enjoy. But it gets even *worse*. Some older, sample-heavy music *can't* be cleared. Most of De La Soul's catalog wasn't available for *15 years*, and even though some of their seminal music came back in March 2022, the band's frontman Trugoy the Dove didn't live to see it - he died in February 2022:

https://www.vulture.com/2023/02/de-la-soul-trugoy-the-dove-dead-at-54.html

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This is the third nuance: even if we can craft a model-banning copyright system that doesn't catch a lot of dolphins in its tuna net, it could *still* make artists poorer off.

Back when sampling started, it wasn't clear whether it would ever be considered artistically important. Early sampling was crude and experimental.

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Musicians who trained for years to master an instrument were dismissive of the idea that clicking a mouse was "making music." Today, most of us don't question the idea that sampling can produce meaningful art - even musicians who believe in licensing samples.

Having lived through that era, I'm prepared to believe that maybe I'll look back on AI "art" and say, "damn, I can't believe I never thought that could be real art."

But I wouldn't give odds on it.

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I don't like AI art. I find it anodyne, boring. As @henryfarrell writes, it's *uncanny*, and not in a good way:

https://www.programmablemutter.com/p/large-language-models-are-uncanny

Farrell likens the work produced by AIs to the movement of a Ouija board's planchette, something that "seems to have a life of its own, even though its motion is a collective side-effect of the motions of the people whose fingers lightly rest on top of it."

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This is "spooky-action-at-a-close-up," transforming "collective inputs ... into apparently quite specific outputs that are not the intended creation of any conscious mind."

Look, art is irrational in the sense that it speaks to us at some non-rational, or sub-rational level. Caring about the tribulations of imaginary people or being fascinated by pictures of things that don't exist (or that aren't even recognizable) doesn't make any *sense*.

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There's a way in which all art is like an optical illusion for our cognition, an imaginary thing that captures us the way a real thing might.

But art is *amazing*. Making art and experiencing art makes us feel big, numinous, irreducible emotions. Making art keeps me sane. Experiencing art is a precondition for all the joy in my life.

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Having spent most of my life as a working artist, I've come to the conclusion that the reason for this is that art transmits an approximation of some big, numinous irreducible emotion from an artist's mind to our own. That's it: that's why art is amazing.

AI doesn't have a mind. It doesn't have an intention. The aesthetic choices made by AI aren't choices, they're averages.

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As Farrell writes, "LLM art sometimes seems to communicate a message, as art does, but it is unclear where that message comes from, or what it means. *If it has any meaning at all, it is a meaning that does not stem from organizing intention*" (emphasis mine).

Farrell cites Mark Fisher's *The Weird and the Eerie*, which defines "weird" in easy to understand terms ("that which does not belong") but really grapples with "eerie."

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For Fisher, eeriness is "when there is something present where there should be nothing, or is there is nothing present when there should be something." AI art produces the seeming of intention without intending anything. It appears to be an agent, but it has no agency. It's *eerie*.

Fisher talks about *capitalism* as eerie. Capital is "conjured out of nothing" but "exerts more influence than any allegedly substantial entity."

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The "invisible hand" shapes our lives more than any person. The invisible hand is *fucking eerie*. Capitalism is a system in which insubstantial non-things - corporations - appear to act with intention, often at odds with the intentions of the human beings carrying out those actions.

So will AI art ever be art? I don't know. There's a long tradition of using random or irrational or impersonal inputs as the starting point for human acts of artistic creativity.

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Think of divination:

https://pluralistic.net/2022/07/31/divination/

Or Brian Eno's Oblique Strategies:

http://stoney.sb.org/eno/oblique.html

I love making my little collages for this blog, though I wouldn't call them important art. Nevertheless, piecing together bits of other peoples' work can make fantastic, important work of historical note:

https://www.johnheartfield.com/John-Heartfield-Exhibition/john-heartfield-art/famous-anti-fascist-art/heartfield-posters-aiz

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Even though painstakingly cutting out tiny elements from others' images can be a meditative and educational experience, I don't think that using tiny scissors or the lasso tool is what defines the "art" in collage. If you can automate some of this process, it could still be art.

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Here's what I *do* know. Creating an individual bargainable copyright over training will *not* improve the material conditions of artists' lives - all it will do is change the relative shares of the value we create, shifting some of that value from tech companies that hate us and want us to starve to entertainment companies that hate us and want us to starve.

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As an artist, I'm against anything that stands in the way of making art. As an artistic worker, I'm committed to things that help workers get a fair share of the money their work creates, feed their families and pay their rent.

I think today's AI art is bad, and I think tomorrow's AI art will *probably* be bad, but even if you disagree (with either proposition), I hope you'll agree that we should be focused on making sure art is legal to make and that artists get paid for it.

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Just because copyright won't fix the creative labor market, it doesn't follow that *nothing* will. If we're worried about labor issues, we can look to *labor law* to improve our conditions. That's what the Hollywood writers did, in their groundbreaking 2023 strike:

https://pluralistic.net/2023/10/01/how-the-writers-guild-sunk-ais-ship/

Now, the writers had an advantage: they are able to engage in "sectoral bargaining," where a union bargains with *all* the major employers at once.

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That's illegal in nearly every other kind of labor market. But if we're willing to entertain the possibility of getting a new copyright law passed (that won't make artists better off), why not the possibility of passing a new *labor* law (that will)? Sure, our bosses won't lobby alongside of us for more labor protection, the way they would for more copyright (think for a moment about what that says about who benefits from copyright versus labor law expansion).

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But *all* workers benefit from expanded labor protection. Rather than going to Congress alongside our bosses from the studios and labels and publishers to demand more copyright, we could go to Congress alongside every kind of worker, from fast-food cashiers to publishing assistants to truck drivers to demand the right to sectoral bargaining. That's a hell of a coalition.

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