E.g. the courts take a dim view of any attempt to create a machine (in the abstract sense) that takes in copywritten works and churns out similar-but-uncopywritten works

"Transformative" being an affirmative defense for copyright infringement is precedent (Campbell v. Acuff-Rose Music, 1994).

Curiously, from the article, copyright infringement is not alleged:

> As a final note, the complaint alleges a violation under the Digital Millennium Copyright Act for removal of copyright notices, attribution, and license terms, but conspicuously does not allege copyright infringement.

Perhaps the plaintiffs are trying to avoid exactly this prior law?

One of us is running into a brick wall in this conversation and that brick wall is “has read related case and statutory law”.

What I’ve been doing is pretending we’re having an objective conversation about copyright so logically I’m treating this closer to a mock trial. I’m not actually sure what you’re doing but I would recommend referencing, you know, the extensive evidence you have to support claims of what is or isn’t infringing.

Unlike a simple civil contract dispute, for example, where the ambiguity usually lies in the terms of the agreement between the parties, what I'm referring to is the ambiguity inherent in the federal case law precedent surrounding derivative works -- let me explain.

Derivative works, as defined by the Copyright Act of 1976, are those "based upon one or more preexisting works" that have been recast, transformed, and/or adapted from their original form. [1] Specifically, there is differing authority as to the requisite level of originality required for a derivative work. For example, in Gracen v. Bradford Exchange, Judge Posner held that a "derivative work must be substantially different from the underlying work to be copyrightable." [2] Compare this approach with that of the second circuit in Alfred Bell & Co. v. Catalda Fine Arts, Inc., which rejected any novelty requirement, holding that a "distinguishable variation" of the original work would suffice to trigger copyright for a derivative work based on public domain sources. [3]

The required amount of originality has produced a circuit level split in cases involving the infringement of the exclusive right to prepare derivative works. Particularly, pictures taken from lawfully purchased books and mounted to a tile were considered, by the ninth circuit, a "recast or transform[ation of] the individual images" sufficient to infringe the original artist’s section 106(2) right. [4] The seventh circuit, in a strongly worded opinion by Judge Easterbrook, rejected this approach ?nding that the pictures were merely "bonded to a slab of ceramic ... [and] not changed in the process." [5] Easterbrook opined that the seventh circuit’s inclusive view of derivative works would create an expansive moral rights regime not explicitly authorized in the 1976 Act. [6]

In other words, until the Supreme Court rules definitively and resolves the circuit split, the threshold of originality necessary for a derivative work depends on the precedent your jurisdiction follows. Hence why it's more ambiguous than is typical of other topics in federal law.

[1] 17 U.S.C. § 101.

[2] Gracen v. Bradford Exchange, 698 F.2d 300, 305 (7th Cir. 1983).

[3] Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951) ("It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikingly unique or novel. Accordingly, we were not ignoring the Constitution when we stated that a 'copy of something in the public domain' will support a copyright if it is a 'distinguishable variation' ").

[4] Mirage Editions v. Albuquerque A.R.T., 856 F.2d 1341, 1344 (9th Cir. 1988).

[5] Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997).

[6] See id. at 582. Easterbrook observed: "If Lee (and the ninth circuit) are right about what counts as a derivative work, then the United States has established through the back door an extraordinarily broad version of authors’ moral rights, under which artists may block any modi?cation of their works of which they disapprove. No European version of droit moral goes this far."

That's how we interpret it. The problem is that we don't know what the rights-holder has in mind, and what that entity's willing to sue over.

Lawyers can be comically risk-averse. Comical, that is, until you see the kinds of things people actually sue over.

The uncertainty and doubt that DannyBee comments seem to instill is a bit regrettable, since its not that complicated. A derivative work is a legal concept built on a few vague concept, neither which has been clearly defined, and the precedential case law for software derivatives is almost non-existent. What does exist is an industry standard, and a defined intent written in the license text.

When a judge look at a copyright case, intent and industry standards goes a long way. Judges does not seem amused when people trying to find loop holes or game the system. Add that with the commonly commercial nature of cases that get brought to court, and I would not bet on the infringer getting a pass.

I don't know how a court would decide this, but I do think the facts in future GPT-3 cases are sufficiently different from Author's Guild that I could see it going any way. Plus, I think the prevalence of GPT-3 and the ramifications of the ruling one way or another could lead some future case to be heard by the Supreme Court. A similar case could come up in California, or another state where the 2nd Circuit Artist Guild case isn't precedent.

Unfortunately, those are just words, and they can be interpreted any way judges want. They could simply say that "Progress of Science and useful Arts depends on genres being copyrightable and copyright owners making money."

Judges are great at coming up with arguments to justify their positions, no matter how specious such arguments are. It's just their opinion, but their opinion is the one that counts.

I will simply point out, as i did in another comment, that the court of appeals in that case did in fact, claim that because 2 live crew took the heart of the old work, and made it the heart of the new work, that it was not transformative, and SCOTUS said that was wrong.