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Re: Brief update about software freedom and artificial intelligence

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  Re: Brief update about software freedom and artificial intelligence Gerardo Ballabio <gerardo.ballabio@gmail.com> - 2023-02-24 10:30 +0100
    Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-24 14:30 +0100
    Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-02-24 19:10 +0100
      Re: Brief update about software freedom and artificial intelligence Sam Hartman <hartmans@debian.org> - 2023-02-24 20:00 +0100
        Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-02-24 20:50 +0100
          Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-26 17:10 +0100
            Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-02-26 21:50 +0100
              Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-27 02:50 +0100
                Re: Brief update about software freedom and artificial intelligence Scott Kitterman <debian@kitterman.com> - 2023-02-27 05:10 +0100
                Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-02-27 07:20 +0100
                  Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-27 08:50 +0100
                    Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-27 09:00 +0100
                    Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-02-27 18:50 +0100
                Re: Brief update about software freedom and artificial intelligence Paul Wise <pabs@debian.org> - 2023-02-28 06:40 +0100
                  Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-28 09:10 +0100
                  Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-28 09:10 +0100
              Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-27 02:50 +0100
                Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-02-27 09:00 +0100
                  Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-27 09:40 +0100
                    Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-02-27 19:10 +0100
                      Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-28 00:40 +0100
                        Re: Brief update about software freedom and artificial intelligence Sam Hartman <hartmans@suchdamage.org> - 2023-02-28 15:50 +0100
                        Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-28 19:40 +0100
                          Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-02-28 20:00 +0100
                          Re: Brief update about software freedom and artificial intelligence Richard Stallman <rms@gnu.org> - 2023-03-02 06:00 +0100
                            Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-03-02 11:40 +0100
                              Re: Brief update about software freedom and artificial intelligence "Bradley M. Kuhn" <bkuhn@sfconservancy.org> - 2023-03-03 05:30 +0100
                              Re: Brief update about software freedom and artificial intelligence Richard Stallman <rms@gnu.org> - 2023-03-04 05:50 +0100
                                Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-03-04 09:10 +0100
                                  Re: Brief update about software freedom and artificial intelligence Richard Stallman <rms@gnu.org> - 2023-03-15 05:20 +0100
                                    Re: Brief update about software freedom and artificial intelligence "Roberto A. Foglietta" <roberto.foglietta@gmail.com> - 2023-03-22 05:20 +0100
          Re: Brief update about software freedom and artificial intelligence Paul Wise <pabs@debian.org> - 2023-02-27 05:10 +0100
            Re: Brief update about software freedom and artificial intelligence Daniel Lange <DLange@debian.org> - 2023-03-23 15:30 +0100
              Re: Brief update about software freedom and artificial intelligence Russ Allbery <rra@debian.org> - 2023-03-23 17:20 +0100

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#13191 — Re: Brief update about software freedom and artificial intelligence

Roberto A. Foglietta wrote:
> cloud technologies posed a challenge to the GPLv2 because under that
license everyone has the right to change the code but do not share it
as long as s/he uses it internally which is exactly how the SaaS
works. To fulfil this lack of freedom, the GPLv3 was proposed.

Well, not exactly.

If I am not mistaken, the GPLv3 was developed to clarify some
ambiguous language in the GPLv2, mostly with respect to patents. It
doesn't address SaaS -- you are still free to modify the code and keep
your modifications private, even if you run a publicly accessible
service on the modified code.

The Affero GPL <https://www.gnu.org/licenses/agpl-3.0.html> was
developed to specifically address SaaS. This license requires that if
you run a service over a network, you must offer the corresponding
source code to all users of the service.

Charles Plessy wrote:
> Also, is there a DFSG-free license that forces the training dataset and
the result of the training process to be open source if a work under that
license is present in the training data?  Would GPLv3 be sufficient?

As I understand, that is an open legal question. The Affero GPL would
be such a license *if* the training dataset would be considered part
of the code. While that does seem to make sense, as AI code is
essentially non-functional without the training, I am not aware that
there has ever been a pronouncement by a court of law that affirms or
denies it, nor I am aware of any free/open source license that
contains language that deals specifically with that issue, and I'm
pretty sure that there's lot of room for lawyers to argue their point.

If you explicitly publish a dataset under the GPL or AGPL, I suppose
that anybody who makes use of that dataset would be required to comply
with that. And if you don't explicitly license it at all, I suppose
that nobody would be authorized to use it except for "fair use". But
you must be careful or you might end up "licensing" your data without
even knowing. For example, I don't know the terms of service of
ChatGPT, but it seems a fair guess to assume that whatever you write
into it, you give them unlimited rights to use it. And that may easily
extend to whatever you write into a document processor or other
software that has a "feature" of "integrating" with ChatGPT, even if
you're running it on your own computer (I think I've read that even
LibreOffice is developing such a feature!).

Gerardo

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#13192

On Fri, 24 Feb 2023 at 10:27, Gerardo Ballabio
<gerardo.ballabio@gmail.com> wrote:
>
> If I am not mistaken, the GPLv3 was developed to clarify some
> ambiguous language in the GPLv2, mostly with respect to patents. It
> doesn't address SaaS -- you are still free to modify the code and keep
> your modifications private, even if you run a publicly accessible
> service on the modified code.
>
> The Affero GPL <https://www.gnu.org/licenses/agpl-3.0.html> was
> developed to specifically address SaaS. This license requires that if
> you run a service over a network, you must offer the corresponding
> source code to all users of the service.

Thanks Gerardo for your contribution. Then, integrating it in my
previous e-mail, I can say that wherever I wrote GPLv3, it could be
used AGPLv3 instead. However, the example I did was based on the
transfer of the NN binary from one party to another so the GPLv3 was
correctly used in that case because the distribution. Instead, when
the NN is trained and used internally for offering a SaaS, then AGPLv3
should be considered by the authors.

>
> Charles Plessy wrote:
> > Also, is there a DFSG-free license that forces the training dataset and
> the result of the training process to be open source if a work under that
> license is present in the training data?  Would GPLv3 be sufficient?
>
> As I understand, that is an open legal question. The Affero GPL would
> be such a license *if* the training dataset would be considered part
> of the code. While that does seem to make sense, as AI code is
> essentially non-functional without the training, I am not aware that
> there has ever been a pronouncement by a court of law that affirms or
> denies it, nor I am aware of any free/open source license that
> contains language that deals specifically with that issue, and I'm
> pretty sure that there's lot of room for lawyers to argue their point.

Geranrdo, thanks again for your contribution because you highlight the
main point of my proposal: wherever the GPLv3 or AGPLv3 is used, the
most important thing is protecting the collection with such a license
and not every single files/data which instead could have a completely
different authorship and license. This is possible every time the
various parts of the collection have been licensed under terms that
are compatible with GPLv3 or AGPLv3 applied to the whole collection.
Every file/data that does not fulfil this requirement then it should
be delivered apart even better in a different manner or repository.

Best regards, R-

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#13193

Gerardo Ballabio <gerardo.ballabio@gmail.com> writes:

> As I understand, that is an open legal question. The Affero GPL would be
> such a license *if* the training dataset would be considered part of the
> code. While that does seem to make sense, as AI code is essentially
> non-functional without the training, I am not aware that there has ever
> been a pronouncement by a court of law that affirms or denies it, nor I
> am aware of any free/open source license that contains language that
> deals specifically with that issue, and I'm pretty sure that there's lot
> of room for lawyers to argue their point.

To add to this, I'm fairly sure that the companies that are training AI
models on, say, every piece of text they can find on the Internet, or all
public GitHub repositories, are going to explicitly argue that doing so is
fair use of the training material.  If that argument prevails in court, or
in legislatures, it will not be possible to write a free software license
to prevent this, since the point of fair use is that copyright law does
not apply to that usage and therefore no copyright license can prohibit
it.

I don't think we have any idea yet whether that argument will prevail.  It
will probably be years before it reaches a high enough level court in the
United States for a definitive ruling, let alone every other relevant
country that will have its own legal judgments.  Consider Google
v. Oracle: a suitable case with litigants willing to appeal all the way to
the highest court about the copyright status of library APIs was only
filed in 2015, years after this became a common issue, and it took six
years for it to be decided, and that only in the United States.  I would
expect a similar delay.  Court systems work very slowly.  It's also
entirely possible that court judgments will go different ways in different
countries to add even more confusion.

The organizations that have every incentive to argue that it's fair use
have very deep pockets, so they have a substantial chance of success on
the prosaic grounds that the best-funded litigant or lobbyist always
stands a reasonable chance of winning.

-- 
Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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#13194

[Multipart message — attachments visible in raw view] — view raw

>>>>> "Russ" == Russ Allbery <rra@debian.org> writes:

    Russ> To add to this, I'm fairly sure that the companies that are
    Russ> training AI models on, say, every piece of text they can find
    Russ> on the Internet, or all public GitHub repositories, are going
    Russ> to explicitly argue that doing so is fair use of the training
    Russ> material.  If that argument prevails in court, or in
    Russ> legislatures, it will not be possible to write a free software
    Russ> license to prevent this, since the point of fair use is that
    Russ> copyright law does not apply to that usage and therefore no
    Russ> copyright license can prohibit it.

Russ, I'm sure you are aware, but things get very interesting if the
input to AI training is not fair use.
In particular, if Github copilot is a derivative work of everything fed
to it (including all the copylefted works), that gets kind of awkward
for Microsoft.
Perhaps the Github user agreement grants permission for every copyright
holder who has a Github account.
But for everyone else, things could be very interesting.

Unfortunately, if there is not some sort of fair use or sui generis
solution, things like Chat GPT would be impossible because of copyright.
That will create significant energy on the legal front to find a
solution that does not involve negotiating with each right holder
individually.
The AI models are useful after all.

And then there's GDPR and privacy concerns of training data.
If I were a European, I'd definitely be very interested in filing a
subject access request to learn what OpenAI knows about me.

--Sam

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#13195

Sam Hartman <hartmans@debian.org> writes:

> Russ, I'm sure you are aware, but things get very interesting if the
> input to AI training is not fair use.

> In particular, if Github copilot is a derivative work of everything fed
> to it (including all the copylefted works), that gets kind of awkward
> for Microsoft.

> Perhaps the Github user agreement grants permission for every copyright
> holder who has a Github account.

> But for everyone else, things could be very interesting.

Yes.  I didn't express an opinion on what the correct outcome is because
it's not at all obvious to me and I'm not sure that I have an opinion.

As a general principle, as a free software advocate, I approve of an
expansive definition of fair use and believe that far more uses of
copyrighted material should be fair use than are normally considered fair
use today.  Expansive definitions of fair use are a key legal component to
enabling reverse engineering and compatible replacement of non-free
software with free software, for example.

I'm seeing some tendency for free software advocates who are disturbed by
the other social effects of large AI models (and there are quite a few
things to be disturbed about), and about the degree to which some of them
are parasitic on free software and other free information communities, to
respond by advocating for a narrow definition of fair use, at least in
this specific area.  I'm worried that this is counterproductive; I think
we rely on fair use much more than incredibly wealthy multinational
software corporations do.

But the specific ramifications of an expansive fair use position for the
societal effect of AI models isn't clear to me, and to be honest I'm
dubious that it's clear to anyone at this point.  There are obviously some
significant risks, including the tendency of scale effects with large
models to further consolidate power into the hands of a small number of
very wealthy organizations.

-- 
Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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#13199

Hi all,

 in these two threads

* https://lists.debian.org/debian-project/2023/02/msg00017.html

* https://lists.debian.org/debian-project/2023/02/msg00022.html

 we had the chance to confront each other about the emerging A.I. mass
adoption and about which licensing model would be useful to adopt to
protect the freedom of code, data, models, etc.

 One topic that seems to make people worry is the "fair use" which is
a legal term but not really well defined - I would use the attribute
"blurry" for it - and this could be a triky attribute to debate about
in a trial.

 I wish to add my two cents about this topic and I will follow two
main guidelines:1. historical evolution, 2. priority of legislative
sources.

 First of all, we can start with a "for absurd" reasoning and because
we do not have a clear legal definition of "fair use", then we
consider the worst case which means "everything". Well, this is
exactly the situation before the introduction of the copyright:
everything was a fair use case. Then the copyright was introduced to
grant to authors some kind of exclusive rights: moral and material
rights, both. As you can imagine, without the moral rights there would
be no material rights, indeed. However, this aspect is not
relevant for our goal here but just to underline the priority.

 The copyright was introduced to move some profit from the editors to
the authors who were starving. Thus, the material rights are about
business, commercial and marketing. Obviously these three terms were
not developed as we are used today but basically these three
activities are clearly related to the value and thus they SHOULD be
exclusive of the author for every copyrighted stuff that s/he created.
Moreover, the copyright applies even if the author does not explicitly
claim differently.

 Under this point of view, we still do not know what is "fair use" but
for certain we know what is NOT included in "fair use" otherwise the
copyright would fail in principle. Specularly, the copyleft as well.

 In fact, the copyright claims {business, commercial, marketing} are
exclusive rights of the author (all rights reserved) implicitly
considering that the author's intention is selling them otherwise no
one could legally enjoy the author's work.

 Copyleft trades these rights for something else rather than money but
freedom, something more valuable for some people. Thus, with copyleft
if you like to enjoy the {business, commercial, marketing} rights of
someone else's work, then you have to share back something about the
original work.

 Thus this equation takes place:

 copyright : money ~alike~ copyleft : freedom

 My proposal to apply the GPLv3 or AGPLv3 - not directly to an object
but - to a collection of objects using the database protection,
automatically also solves the problem of a blurry "fair use"
definition. However, to be more incisive about "fair use", it is
better to declare explicitly what is not "fair use". Otherwise, we
risk having to explain this in court. Like in this file header:

https://github.com/robang74/isar/blob/evo2/meta/recipes-support/expand-on-first-boot/files/expand-last-partition.sh

# (C) 2022, Roberto A. Foglietta <roberto.foglietta@gmail.com>
# SPDX-License-Identifier: all rights reserved, but fair use allowed
# Fair use includes test, learning and marketing but not sales, redistribution
# leasing, renting or every other commercial/business activities without the
# consent of the author. Every company or individual allowed to use this
# code behind these limitations will be listed here below, if any.

 In this specific case, I decided that marketing belongs to "fair use"
because it lets my product be known. In case of A.I. it would not be
fine because the A.I. could suggest directly or indirectly to drink a
X-soft-drink and this is marketing, clearly.

 So, in conclusion "fair use" was the standard before the copyright
introduction then "all rights are reserved" became the standard with
the copyright introduction but this creates others problems because it
was too restrictive so the "fair use" concept was introduced to relax
the copyright but "fair use" was not well defined. It was not well
defined because "{business, commercial, marketing} rights are
reserved" is enough and moreover protecting these rights is the core
reason of copyright law existence altogether.

 IMHO, the best we can do is to ask the Free Software Foundation to
write two more licenses or updates A/GPLv3 in A/GPLv4 in which it wil
clearly stated that the license applies to the composition and the
{business, commercial, marketing} rights are reserved and exchanged
for freedom. Then the license presents a "fair use" open definition in
which some rights {testing, learning} are clearly included. Everything
else should be brought back in these two categories. Finally, the
license should state that every collection item that does not have its
own specific copyright and license note/header, it is licensed under
A/GPLv3.

 So, in the most simple case in which no any file report a specific
copyright note/header but just the repository, then this happens:

 - git repository A is licensed with A/GPLv4
 - the composition is under A/GPLv4
 - every file is under A/GPLv3

 Clearly, we can also have LGPLv4 as long as it makes sense every
other license could be used to create a collection-oriented version of
that license.

 Moreover, when an A.I.'s training engine hits a project repository
protected by A/GPLv4 then all the inputs before and after that hit
become part of the input collection which will be protected by A/GPLv4
and all the related consequences that I have just explained in others
e-mail here.

 Everything IMHO and hoping that it helps, R-

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#13200

"Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:

>  My proposal to apply the GPLv3 or AGPLv3 - not directly to an object
> but - to a collection of objects using the database protection,
> automatically also solves the problem of a blurry "fair use"
> definition. However, to be more incisive about "fair use", it is
> better to declare explicitly what is not "fair use". Otherwise, we
> risk having to explain this in court. Like in this file header:

> https://github.com/robang74/isar/blob/evo2/meta/recipes-support/expand-on-first-boot/files/expand-last-partition.sh

> # (C) 2022, Roberto A. Foglietta <roberto.foglietta@gmail.com>
> # SPDX-License-Identifier: all rights reserved, but fair use allowed
> # Fair use includes test, learning and marketing but not sales, redistribution
> # leasing, renting or every other commercial/business activities without the
> # consent of the author. Every company or individual allowed to use this
> # code behind these limitations will be listed here below, if any.

I'm afraid this is not how fair use works.  The whole point of fair use is
that the copyright holder has no control over uses that are fair use.
They can grant additional rights with a copyright license, but they cannot
stop legal fair use, no matter what they write in their license and no
matter what their personal opinions are about what would fall into fair
use.

You can see why this must be so if you think about the role of fair use in
copyright law.  Fair use is a carve-out for a whole class of uses to which
society wants to put copyrighted works without requiring any permission
from the copyright holder, and if necessary against their explicit wishes.

Consider quoting small portions of a work while reviewing it, which is one
of the classic areas of fair use in US law.  A copyright holder might like
to only allow friendly reviews to quote their work and prohibit hostile
reviews from quoting their work, or, failing that, prohibit quoting in any
review.  But the point of fair use is that everyone gets to quote their
work and they get no say in the matter.

And, as mentioned earlier, free software relies heavily on this.  Among
the things that are carved out for fair use (and closely related concepts
with roughly the same legal properties, such as limits on what types of
works can be protected by copyright), is the ability to reimplement an
API.  There are also a lot of activities around reverse engineering that
are protected by fair use and related limitations.  The copyright holders
of that software, if allowed to redefine those limits in their licenses,
would use a far more restrictive definition that prohibited free software
competition.  But they can't.

This means that it is largely pointless to try to define fair use in a
copyright license, since the whole point of fair use is that it applies
regardless of the content of the copyright license, even if the copyright
license explicitly prohibits things that are legally fair use, and even in
the case of no copyright license at all.  The belief or definition offered
by the copyright holder for fair use does not matter and should be ignored
entirely for legal purposes.  The only definition that matters is the one
made by the legislature and enforced by the courts.

And yes, it is indeed fuzzy, and it may be beneficial for governemnts to
define it more precisely (assuming they didn't break it in the process).
But licenses like the GPL cannot do this, since those are just statements
by the copyright holder.  The copyright holder *cannot* have any power to
make fair use less fuzzy, since that would defeat the point of fair use.

A similar principle applies to claiming compilation copyright.  Either a
compilation is covered by your copyright, in which case you have all the
normal copyright holder rights over it unless you grant them to others
with an explicit license, or it is not covered, in which case it doesn't
matter what you say about it and everyone else can ignore anything you
say.  So declaring that any compilation including your work is covered by
your preferred license is only relevant if you have a legal copyright over
the compilation.  If you do, then your copyright license matters; if you
don't, everyone else is entitled to ignore your license and your
statements.

I am not a lawyer, let alone a copyright lawyer, and have only an amateur
Internet understanding of the nature of compilation copyrights (and they
may well also vary by jurisdiction), but my understanding (possibly
incorrect) of the law in the US is that holding copyright on a member of a
collection does not give you any copyright ownership of the collection as
a whole.  To gain copyright ownership of the collection, you have to
exercise some sort of creative control over the collection itself, such as
by using human creativity to select its membership, choosing some elements
and discarding others.  The person distributing the collection has to
comply with copyright law with respect to the material included that you
hold a copyright on (either satisfying your license or following the rules
of fair use), but if you're not involved in creating the collection, you
don't get any separate rights over the collection itself and cannot assert
a license on it.

There's a bunch of US case law on this around things like phone books
(IIRC, found to not involve enough creativity to have a separate
copyright), recipe collections (copyrightable as a compilation even though
recipes themselves are not individually copyrightable), short story
collections, and so forth.

-- 
Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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#13201

On Sun, 26 Feb 2023 at 21:47, Russ Allbery <rra@debian.org> wrote:
>
> "Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
>
> >  My proposal to apply the GPLv3 or AGPLv3 - not directly to an object
> > but - to a collection of objects using the database protection,
> > automatically also solves the problem of a blurry "fair use"
> > definition. However, to be more incisive about "fair use", it is
> > better to declare explicitly what is not "fair use". Otherwise, we
> > risk having to explain this in court. Like in this file header:
>
> > https://github.com/robang74/isar/blob/evo2/meta/recipes-support/expand-on-first-boot/files/expand-last-partition.sh
>
> > # (C) 2022, Roberto A. Foglietta <roberto.foglietta@gmail.com>
> > # SPDX-License-Identifier: all rights reserved, but fair use allowed
> > # Fair use includes test, learning and marketing but not sales, redistribution
> > # leasing, renting or every other commercial/business activities without the
> > # consent of the author. Every company or individual allowed to use this
> > # code behind these limitations will be listed here below, if any.
>
> I'm afraid this is not how fair use works.  The whole point of fair use is
> that the copyright holder has no control over uses that are fair use.
> They can grant additional rights with a copyright license, but they cannot
> stop legal fair use, no matter what they write in their license and no
> matter what their personal opinions are about what would fall into fair
> use.

I am sorry for having confuse you trying to explain a simple fact:

- fair use as legal term is a blurry one
- fair use cannot be limited but expanded (as I did over there)
- fair use could include {testing, learning, storage} and usually it does

HOWEVER

- fair use cannot include {business, commercial, marketing} rights in
anyway and in any conditions

WHY?

Because the principle of the copyright existence is about protecting
the authors' exclusive of that {business, commercial, marketing}
rights.
Because copyleft is a copyright that trades exclusive rights for
freedom instead of money, this is certainly happening also for the
copyleft.

CONCLUSION

We might have problems in identifying all the fair use cases but we
can be very certain about what is NOT fair use.

(in another e-mail about database/collection protection)

Best regards, R-

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#13203

On February 27, 2023 12:45:38 AM UTC, "Roberto A. Foglietta" <roberto.foglietta@gmail.com> wrote:
>On Sun, 26 Feb 2023 at 21:47, Russ Allbery <rra@debian.org> wrote:
>>
>> "Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
>>
>> >  My proposal to apply the GPLv3 or AGPLv3 - not directly to an object
>> > but - to a collection of objects using the database protection,
>> > automatically also solves the problem of a blurry "fair use"
>> > definition. However, to be more incisive about "fair use", it is
>> > better to declare explicitly what is not "fair use". Otherwise, we
>> > risk having to explain this in court. Like in this file header:
>>
>> > https://github.com/robang74/isar/blob/evo2/meta/recipes-support/expand-on-first-boot/files/expand-last-partition.sh
>>
>> > # (C) 2022, Roberto A. Foglietta <roberto.foglietta@gmail.com>
>> > # SPDX-License-Identifier: all rights reserved, but fair use allowed
>> > # Fair use includes test, learning and marketing but not sales, redistribution
>> > # leasing, renting or every other commercial/business activities without the
>> > # consent of the author. Every company or individual allowed to use this
>> > # code behind these limitations will be listed here below, if any.
>>
>> I'm afraid this is not how fair use works.  The whole point of fair use is
>> that the copyright holder has no control over uses that are fair use.
>> They can grant additional rights with a copyright license, but they cannot
>> stop legal fair use, no matter what they write in their license and no
>> matter what their personal opinions are about what would fall into fair
>> use.
>
>I am sorry for having confuse you trying to explain a simple fact:
>
>- fair use as legal term is a blurry one
>- fair use cannot be limited but expanded (as I did over there)
>- fair use could include {testing, learning, storage} and usually it does
>
>HOWEVER
>
>- fair use cannot include {business, commercial, marketing} rights in
>anyway and in any conditions
>
>WHY?
>
>Because the principle of the copyright existence is about protecting
>the authors' exclusive of that {business, commercial, marketing}
>rights.
>Because copyleft is a copyright that trades exclusive rights for
>freedom instead of money, this is certainly happening also for the
>copyleft.
>
>CONCLUSION
>
>We might have problems in identifying all the fair use cases but we
>can be very certain about what is NOT fair use.
>
>(in another e-mail about database/collection protection)

This is not correct.  Commercial fair use is quite common world wide.  Please don't confuse what you wish the law says with what it actually says.  In any case, there are many different laws in many different places, so one can't be very certain about any of this on a global basis.

Russ's main point, that what is or is not fair use is a function of law, not license is correct.  By definition, fair use is about what copyright cannot restrict.

Scott K

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#13206

"Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:

> - fair use cannot include {business, commercial, marketing} rights in
> anyway and in any conditions

This is definitely not true in the United States; there is a Supreme Court
decision saying the exact opposite.  The ruling in Google v. Oracle said
Google's commercial and business use of Oracle's copyrighted APIs met the
test for fair use.

You can't reconstruct the law from first principles without looking at the
actual test that is applied by courts.  (And as mentioned this may be
different in different jurisdictions, for additional complexity.)  In the
US there's a four-part balancing test for fair use, and the analysis can
be quite complicated.

-- 
Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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#13207

On Mon, 27 Feb 2023 at 07:16, Russ Allbery <rra@debian.org> wrote:
>
> "Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
>
> > - fair use cannot include {business, commercial, marketing} rights in
> > anyway and in any conditions
>
> This is definitely not true in the United States; there is a Supreme Court
> decision saying the exact opposite.  The ruling in Google v. Oracle said
> Google's commercial and business use of Oracle's copyrighted APIs met the
> test for fair use.

It is true despite a single US case judgment. In the USA there is the
habit to use precedent judgments to influence others judgment but this
applies only if there is a significant analogy between the two cases
and even if there is a very significant analogy the judge can produce
an opposite ruling for that case.

Google lost two trials against Oracle apparently because judges are
not able to distinguish between the API and the code that runs behind
the API. Thus they faced the Supreme Court. This despite the fact that
API is unlikely to be a work that could be protected by copyright
except in very rare cases. Microsoft deposited a memorandum at the
Supreme Court asking them to rule in favour of Google.

Both these facts are in favour of the opinion that I have explained:
1. API might or might not be protected, 2. copyright applies in case
of doubts.

Microsoft used their capability to persuade Oracle in favor of Google.
Thus the parties agreed that Google - when creating libraries with the
Oracle's API - did a fair use of their declaration. After all, if you
cannot include the headers then you cannot also call the original
functions. The fair use in that agreement was an escamotage to avoid
the Supreme Court would have issued a ruling that would be a disaster
in any case AND for both parties to save the honor.

CONCLUDING

No court ruling was ever emitted in favour of Google vs Oracle
leveraging fair use but it was an agreement between the two parties
supported by Microsoft.

https://arstechnica.com/tech-policy/2021/04/how-the-supreme-court-saved-the-software-industry-from-api-copyrights/

As you can learn from the Ars Technica's article linked here above.

> You can't reconstruct the law from first principles without looking at the
> actual test that is applied by courts.  (And as mentioned this may be
> different in different jurisdictions, for additional complexity.)

I can reconstruct the interpretation of a law from basic principles
otherwise it would not be a law but something that appeared from
nothing: no any law roots, no any law authority. Like every three, a
law is stronger when it has ancient and well developed roots. Thus, a
law interpretation based on reconstructing it from its principle is
the most significant, the most important and the most persuasive way
of doing such a task.

> In the
> US there's a four-part balancing test for fair use, and the analysis can
> be quite complicated.

The U.S. law interpretation is not the source of the truth. Moreover,
it does not matter how fair use is defined in many different
legislations around the world. By copyright principle, it cannot allow
doing activities like {business, commercial, marketing} without the
consent of the author or of the license. The "fair use" is a false
friend and ignoring it is the best choice.

CONCLUSION

If the question "what is X?" does not work well, then try the opposite
"what is not X?" - It is not important to define "fair use" as long as
we can certainly define what does NOT cover the blurry fair use
definition. After all, we were interested since the beginning on "what
is not fair use" thus asking the right question is half of the work
done.

@Russ: please write to me in private if you need more clarification.
At this point anything further has very little to do with the
community needs.

Best regards, R-

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#13209

On Mon, 27 Feb 2023 at 08:38, Roberto A. Foglietta
<roberto.foglietta@gmail.com> wrote:
>
> On Mon, 27 Feb 2023 at 07:16, Russ Allbery <rra@debian.org> wrote:
> >
> > "Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
> >

[...]

>
> No court ruling was ever emitted in favour of Google vs Oracle
> leveraging fair use but it was an agreement between the two parties
> supported by Microsoft.
>
> https://arstechnica.com/tech-policy/2021/04/how-the-supreme-court-saved-the-software-industry-from-api-copyrights/
>
> As you can learn from the Ars Technica's article linked here above.
>

FUNNY FACT

Microsoft convinced Oracle to settle down the cause with Google using
the escamotage based on the unilateral author right of extending the
definition of fair use which is the same I did for marketing about a
single file in one of my projects. This escamotage written down and
deposited in the Supreme Court as agreement between the two parties
allows everyone to do the same of Google about Oracle's API. Thus
Oracle surrendered not because Google leveraged the fair use but
because of Microsoft pressure.

Google: I can include the header, thus I can use the API

Oracle: no you cannot.

Microsoft: Oracle DB cannot run without an operative system, do you agree?

me: ROTFL

Best regards, R-

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#13213

"Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
> On Mon, 27 Feb 2023 at 07:16, Russ Allbery <rra@debian.org> wrote:

>> This is definitely not true in the United States; there is a Supreme
>> Court decision saying the exact opposite.  The ruling in Google
>> v. Oracle said Google's commercial and business use of Oracle's
>> copyrighted APIs met the test for fair use.

> It is true despite a single US case judgment.

It's not a single US court judgment.  The standard for fair use in the
United States was created by a series of Supreme Court judgments starting
with Folsom v. Marsh in 1841 and enshrined in US national law in 17
U.S.C. § 107 in 1976:

    Notwithstanding the provisions of sections 106 and 106A, the fair use
    of a copyrighted work, including such use by reproduction in copies or
    phonorecords or by any other means specified by that section, for
    purposes such as criticism, comment, news reporting, teaching
    (including multiple copies for classroom use), scholarship, or
    research, is not an infringement of copyright. In determining whether
    the use made of a work in any particular case is a fair use the
    factors to be considered shall include—

    (1) the purpose and character of the use, including whether such use
    is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to
    the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of
    the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of
    fair use if such finding is made upon consideration of all the above
    factors.

You can find this history numerous places on-line, for example:

https://law.marquette.edu/facultyblog/2022/10/the-surprisingly-confused-history-of-fair-use-is-it-a-limit-or-a-defense-or-both/

Many fair use cases in US history have been about commercial use.
Probably most, since companies with commercial uses are more likely to go
through the trouble of lawsuits.  Commercial fair use is routine within
the classic examples of fair use, such as parody and quoting for
commentary.

This is the law in the United States.  The law in other countries of
course may be quite different.  But given that many of the actors who are
relevant to a discussion of large AI models at present have a significant
locus in the United States, US law is going to play a large role.

> No court ruling was ever emitted in favour of Google vs Oracle
> leveraging fair use but it was an agreement between the two parties
> supported by Microsoft.

This is not correct summary of the outcome of Google v. Oracle, nor is it
what the Ars Technica article you liked said.  There was no agreement
between the parties in the question before the Supreme Court.  The case
went to judgment and the Supreme Court ruled in favor of Google on fair
use grounds, mooting (and not ruling on) the question of copyrightability
of the API definitions.

Appeals like this in the US are generally over a specific question of law
and do not settle the *entire case*, so the Supreme Court then remanded
the case to trial court to dispose of the rest of the lawsuit.  I didn't
follow it after that because the details following the Supreme Court
decision are generally uninteresting since they're probably forced by the
decision.  It's quite possible that the parties mutually agreed to dismiss
the case after that decision because the decision meant Google was certain
to win.  But the Supreme Court decision was not an agreement between
parties.

This is important because in US law if the parties had reached an
agreement before the decision, the case would generally be dismissed and
thus not receive a court judgment and therefore not create precedent.
Google v. Oracle did not settle; it was decided by the Supreme Court and
therefore did create binding precedent for further district court
decisions on similar cases.

> I can reconstruct the interpretation of a law from basic principles
> otherwise it would not be a law but something that appeared from
> nothing: no any law roots, no any law authority.

If this is your approach to legal analysis, I think I will stop here,
since any further discussion along these lines is going to be pointless.

> Moreover, it does not matter how fair use is defined in many different
> legislations around the world. By copyright principle, it cannot allow
> doing activities like {business, commercial, marketing} without the
> consent of the author or of the license.

This is simply not true, and it is very good for free softawre that this
is not true.  One is still allowed to do reverse engineering and API
replacement under fair use even if one is doing it for business and
commercial purposes, and lots of free software development is done for
business and commercial purposes.

-- 
Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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#13216

[Multipart message — attachments visible in raw view] — view raw

On Mon, 2023-02-27 at 01:45 +0100, Roberto A. Foglietta wrote:

> Because the principle of the copyright existence is about protecting
> the authors' exclusive of that {business, commercial, marketing}
> rights.

The purpose of copyright is allegedly (in the USA) "To promote the
Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings
and Discoveries.". The author's rights are *secondary*, which is why
fair use exists. Of course these days copyright isn't very time-limited
and in the age of DCMA/DRM, video mashups, fanfic and supporter-funded
creators, copyright just ends up limiting progress in many fields,
another reason why fair use is important. Making fair use only
available for non-commercial uses would almost destroy it.

-- 
bye,
pabs

https://wiki.debian.org/PaulWise

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#13217

On Tue, 28 Feb 2023 at 08:33, Roberto A. Foglietta
<roberto.foglietta@gmail.com> wrote:
>

One more thing about this following:

>
> 2. if an author does not exercise a right for a long period of time
> enforcing it then that right is lost for the principle of "usucapio"
> in latin

The "usucapio" principle might not be easily recognised by some
common-law legal systems but for sure it is in every latin-law legal
system. However, I am quite optimistic that common-law legal systems
can recognise that principle because also common-law legal systems are
indirectly based on latin-law foundations by historical ramification.

Best regards, R-

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#13218

On Tue, 28 Feb 2023 at 06:31, Paul Wise <pabs@debian.org> wrote:
>
> On Mon, 2023-02-27 at 01:45 +0100, Roberto A. Foglietta wrote:
>
> > Because the principle of the copyright existence is about protecting
> > the authors' exclusive of that {business, commercial, marketing}
> > rights.
>
> The purpose of copyright is allegedly (in the USA) "To promote the
> Progress of Science and useful Arts, by securing for limited Times to
> Authors and Inventors the exclusive Right to their respective Writings
> and Discoveries.".

A nice political manifesto. However historically it was

- a nice idea someone suggested to their queen
- a way to control and exercise the censorship
- a regalia for someone: salt, pepper, copyright

https://en.wikipedia.org/wiki/History_of_copyright (*)

Among almost in every different implementations, copyright had one
thing in common:

- protecting authors' exclusive rights of restrict anyone to use their
work without the author consent

Translated in modern words the authors' exclusive of {business,
commercial, marketing} rights over their work. The idea of fair use
came much later to boost social benefits more than made authors rich
but one thing was innovative in copyright since the beginning

- a monopoly established in favour of a class of "many individuals"

I used "many individuals" here because "people" came from latin
"plebis" and using "people" in this context would not be
etymologically nor historically correct.

Moreover, because a monopoly established in favour of individuals is a
"right" like the right to have the property of something real - this
explains the roots of the "intellectual property" term - and this
right is establish by a law, then two things happen:

1. if the law is not respected by almost all the people then it is not
enforceable in a trial for the principle that has not been accepted by
those it is supposed to rule over and to enforce it over one in
particular, it is a very nasty discrimination while almost all are left
free to not abide by that law.

2. if an author does not exercise a right for a long period of time
enforcing it then that right is lost for the principle of "usucapio"
in latin

This explains why someone - once has been informed that because they
did not enforce a part of their right for a very long period of time,
then that part of their right has been lost - tried to reclaim also
those parts of their right. Unfortunately when the {speaking,
intention, actions} are not properly aligned a late attempt is much
worse than accepting the status quo. The way to hell is paved with
good intentions and poor implementations.

CONCLUSION

I am very happy to know that the US copyright law has a very nice
political manifesto but the way in which a law is applied, defines its
principle. The application defines the law's aim or written with other
words: the good that is going to protect and promote. [sarcasm on]
After all, the U.S. are very notorious for free schooling and
universities, right? [sarcasm off].

NOTE

(*) there is much more interesting and complete material about the
history of copyright, especially in the London public library.

Best regards, R-

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#13202

On Sun, 26 Feb 2023 at 21:47, Russ Allbery <rra@debian.org> wrote:
>

> I am not a lawyer, let alone a copyright lawyer, and have only an amateur
> Internet understanding of the nature of compilation copyrights (and they
> may well also vary by jurisdiction), but my understanding (possibly
> incorrect) of the law in the US is that holding copyright on a member of a
> collection does not give you any copyright ownership of the collection as
> a whole. To gain copyright ownership of the collection, you have to
> exercise some sort of creative control over the collection itself, such as
> by using human creativity to select its membership, choosing some elements
> and discarding others.

Or creating a tool that does that for you following your criterias and
helps you in doing some jobs like applying labels. Labels (like every
other input structure) could be manually applied (art-sculpture) by
humans or by rules applied by humans, etc. Otherwise using SQL for
dealing with a database instead of editing every field by hand would
wipe off completely every right on the database itself. A database
created with SQL language is a protectable work, so it is a structured
ML/AI input collection.

> The person distributing the collection has to
> comply with copyright law with respect to the material included that you
> hold a copyright on (either satisfying your license or following the rules
> of fair use), but if you're not involved in creating the collection, you
> don't get any separate rights over the collection itself and cannot assert
> a license on it.

A totally automatic procedure like web crawling and web indexing
re-enter in your example, perfectly. However, the input collection
that a ML/AI training system needs is a protectable work because the
data should be structured, selected and properly labeled even if these
activities are done with rules like it happens using SQL for
databases. Thus, if this protectable collection is an enlargement of a
previous protected collection, then copyright law applies. However,
statistics about word sequences can be a product of a complete
automatic process.

So, web indexing and statistics are created over a input collections
that are *not* a creative works and these tools access to every
copyrighted works in fair use as long as they respect the robots:no
meta-tag when it is applied to a copyrighted work. Instead, training a
ML/AI is a completely another story and their input collections are a
protectable collection under the copyright law. This was explained in
one of my first e-mail on this subject. Here:

- https://lists.debian.org/debian-project/2023/02/msg00020.html

Which, after all, is the reason because data-scientists are crying
about not having back the "AI input collection" even when it is
created using their copyrighted works.

One day, an AI being able to self-learn without any human action and
able to collect data by itself will be here reading this e-mail but
today is not that day, yet. :-)

Best regards, R-

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#13210

"Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:

> A totally automatic procedure like web crawling and web indexing
> re-enter in your example, perfectly. However, the input collection that
> a ML/AI training system needs is a protectable work because the data
> should be structured, selected and properly labeled even if these
> activities are done with rules like it happens using SQL for
> databases.

Yes, I agree, I think that a trained AI model is a protectable work.
However, it is not protectable *by you* unless you're the one who wrote
the model and chose its training.

Therefore, putting a clause in your copyright license saying that if your
work is incorporated into an AI model, that AI model as a collection is
covered by some particular license is not really a thing you can do.  The
best you can do is the standard GPL thing of saying that you don't have to
license your collection under any particular license, but if you don't,
you don't have any right to include this specific work.  Maybe that's what
you were getting at, and I just didn't understand.

That second approach of course only works if the use of the GPL-covered
work is not fair use.  If it is fair use, then the person creating the
collection can ignore any provision of the license, so we're back to the
question of whether AI training is fair use.

> So, web indexing and statistics are created over a input collections
> that are *not* a creative works and these tools access to every
> copyrighted works in fair use as long as they respect the robots:no
> meta-tag when it is applied to a copyrighted work. Instead, training a
> ML/AI is a completely another story and their input collections are a
> protectable collection under the copyright law.

I don't think it's anywhere near that easy to distinguish a web search
index from an AI training model in copyright law.  They seem like very
similar cases to me.  A great deal of creativity and human control go into
selecting how pages are chosen for search indices (otherwise, every search
engine would be unusable due to search optimization spam), and search
engines even retain and redistribute portions of the documents they index.

My guess is that *both* of these are protectable collections.  And the
entire Internet currently assumes that building a search engine is fair
use of the Internet-accessible indexed documents, even if that search
engine is then used and marketed for commercial and business purposes, as
Google, Bing, etc. all are.

If you believe that AI training is *not* fair use, I think you're going to
have to wrestle with the substantial similarities between AI training and
the Google search engine.  I think it may prove challenging to write an
analysis that says AI training is not fair use, but Google's search
indexing is fair use.  Or, I guess, argue that Google's search indexing is
also not fair use but falls into some other exception to copyright law
like an implicit license, but there I'm *way* out of the depth of my legal
understanding.

-- 
Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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#13211

On Mon, 27 Feb 2023 at 08:50, Russ Allbery <rra@debian.org> wrote:
>
> "Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
>
> > A totally automatic procedure like web crawling and web indexing
> > re-enter in your example, perfectly. However, the input collection that
> > a ML/AI training system needs is a protectable work because the data
> > should be structured, selected and properly labeled even if these
> > activities are done with rules like it happens using SQL for
> > databases.
>
> Yes, I agree, I think that a trained AI model is a protectable work.
> However, it is not protectable *by you* unless you're the one who wrote
> the model and chose its training.
>
> Therefore, putting a clause in your copyright license saying that if your
> work is incorporated into an AI model, that AI model as a collection is
> covered by some particular license is not really a thing you can do.  The
> best you can do is the standard GPL thing of saying that you don't have to
> license your collection under any particular license, but if you don't,
> you don't have any right to include this specific work.  Maybe that's what
> you were getting at, and I just didn't understand.
>

Dear Russ, I was completely wrong about your ability to contribute to
this discussion because the chance you gave me to confute your thesys
is the best occasion to pave the way to the lawyers that will one day
enforce the A/L/GPLv4 in a court. So, let me explain it in a very
simple and straightforward way:

- A/L/GPLv3 applies to source code and scripts that should be compiled
or run by an interpreter

- the AI/ML training engines use source code and scripts as data, this
might or might not be a fair use, but for sure is a novelty which is
not covered by A/L/GPLv3

- then I decided to protect my projects repositories as database
(collection) in addition to the standard way to protect the code with
a well-known license

- because of the copyright law about databases, if someone creates a
larger database that contains my database or a part of it, then they
have to comply with the license that I choose to protect my project as
a database.

You see, it is a very simple and straightforward concept. The only two
ways to get off this are 1. make unlawful the database copyright law,
2. make a law for which the training input collection is not coverable
by the copyright law. In both cases every employer can bring to their
home a copy of a database or a copy of AI training inputs and share it
with all the rest of the world. Moreover, the 1. includes the 2 while
the 2. would seriously undermine the database copyright law because
every database could be a training set for an AI/ML engine.

Russ, do you agree? :-)

Best regards, R-

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#13214

"Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:

> - then I decided to protect my projects repositories as database
> (collection) in addition to the standard way to protect the code with
> a well-known license

> - because of the copyright law about databases, if someone creates a
> larger database that contains my database or a part of it, then they
> have to comply with the license that I choose to protect my project as
> a database.

In the United States, this is only true if (a) the collection is
copyrightable (let's presume that's true in this case), and (b) their use
of your collection is not fair use.  If their use of your collection is
fair use, then they do not have to comply with your license.

In other countries, I have no idea.  Presumably there is a similar set of
rules under the same or different terms to allow such things as parodies,
but the boundaries may be different and I know very little about how those
rules have been applied to software outside of the US.  My understanding
is the Berne Convention doesn't standardize the rules around fair use
(under whatever name), so this can differ a lot by jurisdiction.

> You see, it is a very simple and straightforward concept. The only two
> ways to get off this are 1. make unlawful the database copyright law,
> 2. make a law for which the training input collection is not coverable
> by the copyright law. In both cases every employer can bring to their
> home a copy of a database or a copy of AI training inputs and share it
> with all the rest of the world. Moreover, the 1. includes the 2 while
> the 2. would seriously undermine the database copyright law because
> every database could be a training set for an AI/ML engine.

> Russ, do you agree? :-)

No.  It's entirely possible that using databases as training sets for an
AI/ML engine is fair use under existing United States law and precedent as
long as that use is sufficiently transformative (the first factor of the
test, and I suspect the most important one here).  The obvious example is
a search engine, which performs a similar transformation of clearly
copyrighted works into a new service with a different purpose, without the
explicit permission of the copyright holders.

This is the reason why people have focused so much on GitHub Copilot's
willingness to insert large blocks of code from other projects verbatim.
Reproducing code from other projects is less transformative and looks more
like simple copying, and therefore opens GitHub to a legal argument that
their AI model is not sufficiently transformative to be fair use.

-- 
Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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