No, it doesn't. There are four factors for fair use, and whether the use is transformative is part of one of them. And you don't need to win on all four factors.
LLM is as transformative as it gets.
The current ruling precedent for "transformative" is the Warhol decision, which effectively says that to look at whether or not something is transformative, you kind of have to start by analyzing its impact on the market (and if you're going "doesn't that import the fourth factor into the first?" the answer is "yes, I don't like it, but it's what SCOTUS said"). By that definition, LLMs are nowhere near "transformative."
Even pre-Warhol, their role as "transformative" is sketchy, because you have to remember that this is using its legal definition, not its colloquial definition.
If I'm on the jury
Fortunately, for this kind of question, the jury isn't going to be involved in determining fair use, so it doesn't matter what you think.
That's untrue. See my comment elsewhere around here. It doesn't rely on the commercial aspect, though if it's not commercial the bar for fair use is set lower.
The argument in Warhol relies on the fact that the derivative work, ie, Warhol's painting, is substantially similar in function to the original photograph. If Warhol had used the picture as stuffing for a soft sculpture, it would not infringe.
Comments
No, it doesn't. There are four factors for fair use, and whether the use is transformative is part of one of them. And you don't need to win on all four factors.
The current ruling precedent for "transformative" is the Warhol decision, which effectively says that to look at whether or not something is transformative, you kind of have to start by analyzing its impact on the market (and if you're going "doesn't that import the fourth factor into the first?" the answer is "yes, I don't like it, but it's what SCOTUS said"). By that definition, LLMs are nowhere near "transformative."
Even pre-Warhol, their role as "transformative" is sketchy, because you have to remember that this is using its legal definition, not its colloquial definition.
Fortunately, for this kind of question, the jury isn't going to be involved in determining fair use, so it doesn't matter what you think.
That's untrue. See my comment elsewhere around here. It doesn't rely on the commercial aspect, though if it's not commercial the bar for fair use is set lower.
The argument in Warhol relies on the fact that the derivative work, ie, Warhol's painting, is substantially similar in function to the original photograph. If Warhol had used the picture as stuffing for a soft sculpture, it would not infringe.
LLM is closer to the latter than the former.
"so it doesn't matter what you think"
A perfectly fine, if incorrect reply, but then you have to be a dick. Why?