copyright artificial-intelligence
Is it possible to prove copyright infringement when artificial intelligence is used?
<p>If there are two significantly similar pieces of fiction, but no word to word sentences, is it possible to use artificial intelligence to prove the similarities ( or reverse engineer in the case artificial intelligence was used to write one, when the other has been used as a prompt to train the program) ? What is the law concerning non consenting parties whose work was used to “teach” the machine?</p>

<p>In such a case, a court would generally look at the result. If the later work is found to have &quot;substantial similarity&quot; to the earlier work, or to be a derivative work of the earlier work, and if <em><strong>fair use</strong></em> (in a US court) or another <em><strong>exception to copyright</strong></em> (elsewhere, including <em><strong>fair dealing</strong></em> in the UK) is not found, then the court might well find that there  was an infringement of copyright.</p>
<p>Note, both &quot;substantial similarity&quot; and &quot;derivative work &quot; are intentionally somewhat vague terms in copyright law, allowing case-by-case decision and flexibility.</p>
<p>The court will probably care little about whether or how an AI was used. It is the output, not the input, that will be the issue, I think. I do not know of a case with exactly this fact pattern, however.</p>

<p>There seem to be a number of questions here. One is, suppose a program actually generates a literary text, which happens to be sufficiently like another human-created text. Then who holds copyright? The human-created text is protected by copyright, the machine-created text is not in the US, until the courts say that computer-generated text is copyrightable (unlikely, without an act of Congress). The monkey-selfie case clarified that only human outputs are protected.</p>
<p>The second question is whether a program could be used to address the question of whether there was copying. Logically, it it seems that two works are similar, the similarity could be a coincidence, A might have copied from B (or the opposite). This is a factual question which ideally involve expert testimony (which incidentally can only be provided by a human). The expert can and really <em>should</em> rely on some computer program that instantiates scientific knowledge about the structure of texts. The expert could testify that it is highly probable that certain similarities are coincidental (the presence of the sentence &quot;Well, then, let's go!&quot;) or that it is highly improbable that the texts arose independently (the text &quot;It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way—in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only&quot;). Scientific evidence in copyright infringement cases is no more legally obligatory than DNA is required in criminal cases, it's just harder to disagree with a one-sided cold-hard scientific argument. Instead, courts may rely on ideas like &quot;striking similarity&quot;, &quot;probative similarity&quot; or &quot;substantial similarity&quot; as a subjective standard for determining whether copying took place. A program would instead give you a number, such as a p-value.</p>
<p>Such expert testimony would be subject to an admissibility challenge, where the opposing side would argue that the supposedly scientific methodology was no better that entrail-divination. So far, no court has allowed ChatGPT dialogues to be admitted as expert testimony. Courts routinely allow experts to base their testimony on the output of statistical programs, because they are reliable at that. Ultimately, any computer-assisted testifying requires the expert to understand the logical basis for asserting &quot;this was copied&quot; vs. &quot;this is just a coincidence&quot;.</p>
