this post was submitted on 22 Dec 2024
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The issue with this definition is that it's overly broad. For instance, a hash of a picture could not exist without that picture. Nor do certain downscalings, like 2x2, 3x3 or 4x4. There must be an exact pixel value you can legally downscale any image to without violating copyright. Similarly, there is a point where creating a book's synopsis starts violating copyright and where a song sounds too similar to another one.
And based on their size, LLMs - in my opinion - cannot possibly violate copyright for their source material because they couldn't possibly store more than a couple of bits per work. Only works that occue frequently in the training data can actually be somewhat reproduced by LLMs.
By the way, fair use doesn't even exist in every - including my - jurisdiction.
This has lead to people being successfully sued for copyright infringement because they posted pictures of their home online that contained a copyrighted wallpaper in the background.
I'm in the US, as are most of these companies, so that's generally what's being discussed here. I don't have any experience with other countries' copyright law.
But for the US, it's intentional that there isn't an exact objective threshold. The fair use tests are subjective, to allow use of a copyrighted work in artistic and other non-commercial uses. And, as you mentioned, incidental inclusions in personal photos.