The Artistic Pretensions of Silicon Valley: On AI, Copyright, and the Death of Fair Use
In the grand theater of techno-capitalism, a most curious spectacle unfolds: OpenAI, with all the gravitas of a doomsday prophet, announces that should the judiciary continue its impertinent habit of upholding copyright law, America shall surely perish in the great AI race against China. One almost expects Sam Altman to don sackcloth and ashes while delivering this dire proclamation.
How delightfully absurd that a company valued at $80 billion should position itself as a humble servant of national security, merely seeking the “freedom to learn” from others’ intellectual property without compensation. The rhetorical sleight of hand is masterful – transforming what is essentially industrial-scale appropriation into a patriotic duty. One must admire the chutzpah, if nothing else.
The Technical Veneer of Transformation
OpenAI’s technical argument rests on a precarious foundation: that their models “are trained to not replicate works for consumption by the public” but rather “learn from the works and extract patterns, linguistic structures, and contextual insights.” This semantic dance around the word “copy” would make even the most sophisticated scholastic philosophers blush.
Let us examine the technical reality. Large language models like GPT-4 do not possess some mystical ability to “understand” texts; they are, at their core, sophisticated pattern-matching systems. Their training process involves ingesting vast corpora of text – scanning, processing, and encoding statistical relationships between tokens. The model memorizes patterns from these works with remarkable fidelity. The technical distinction between “copying” and “learning patterns” becomes vanishingly thin when the patterns being “learned” constitute the very essence of the creative works in question.
Consider the technical process: during training, LLMs calculate loss functions based on how well they predict the next token in a sequence. This process fundamentally relies on the model’s ability to internalize the stylistic, structural, and semantic elements of the works it consumes. The model is, in effect, being rewarded for replicating the patterns of the original works as faithfully as possible. This is not transformation; it is absorption.
The Judicial Awakening
Judge Bibas’ ruling in the Thomson Reuters case drives a stake through the heart of this tortured logic. The court recognized what should have been obvious: when an AI system is trained on copyrighted legal analyses from Westlaw with the explicit purpose of creating a competing legal research product, it constitutes neither transformative use nor fair use.
The technical details of the judgment are illuminating. Bibas emphasized that Ross Intelligence’s training process did not substantially transform Westlaw’s content. The input (comprehensive legal analyses) and output (AI-generated legal analyses) served identical market functions. The embedding of copyrighted text into vector space does not confer some magical transformative property – a mathematical operation does not automatically constitute artistic transformation.
The Irony of Creative Claims
The supreme irony lies in OpenAI’s simultaneous claims. On one hand, they argue their systems produce wholly creative, novel outputs deserving of copyright protection. On the other, they insist these same systems merely “learn” from existing works without replicating them.
This contradiction becomes particularly apparent when examining how these systems function at a technical level. GPT models operate fundamentally by predicting the most statistically likely continuation of a given prompt based on the patterns observed in their training data. The more closely a requested output resembles something in the training corpus, the more confidently the model reproduces elements of that work. The very mechanism that makes these models useful is their ability to draw upon and recombine elements from their training data.
The National Security Canard
Perhaps most ironic is the invocation of national security – that most sacred of cows – to justify what amounts to a wholesale exemption from intellectual property law. “If the PRC’s developers have unfettered access to data and American companies are left without fair use access, the race for AI is effectively over,” OpenAI portentously declares.
This argument conveniently elides the fact that the most successful AI companies have achieved their current positions precisely because of America’s robust intellectual property protections, which incentivized the creation of the very works they now wish to appropriate without compensation. The technical infrastructure of AI – the research papers, the algorithms, the computational techniques – all flourished within a system that rewards innovation through limited monopolies.
The Death of the Creator
In the final analysis, what OpenAI proposes is nothing less than a radical redistribution of creative value – from individual creators to a handful of tech behemoths – all wrapped in the flag of national security and technological inevitability. The technical reality is that AI systems like GPT-4 are trained to replicate the statistical patterns of human creativity with increasing fidelity. They do not create ex nihilo; they recombine and predict based on existing works.
If the courts ultimately accept the proposition that AI training constitutes fair use, they will have effectively declared that the most valuable aspect of creative works is not their expression but their patterns – patterns that can be legally extracted, processed, and monetized without compensation to their creators.
The supreme irony is that a system designed to eliminate the economic value of human creativity is being defended as necessary for human flourishing. In attempting to build machines that can create like humans, we may inadvertently create a world where human creation has no economic value at all.
Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.
The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.
Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.
He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.
Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.
Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.
He believes that the best legal advice is the kind that means the client never has to appear in court.
