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Matthew Smith, “The New York Times Wants ChatGPT Gone. Nice Try Copyright murkiness is about the only sure thing that lies ahead,” IEEE Spectrum, 01-06-2024, https://spectrum.ieee.org/chatgpt-new-york-times

Prepare for years of copyright confusion

Jay Eischen, “(Un)fair Use?: Understanding the New York Times’s Lawsuit Against Microsoft and OpenAI,” JetLaw, 01-08-2024, https://www.vanderbilt.edu/jetlaw/2024/01/08/unfair-use-understanding-the-new-york-timess-lawsuit-against-microsoft-and-openai/

It is too early, however, to determine whether the third and fourth factors are likely to favor the Times or OpenAI. The complaint provides examples of ChatGPT regurgitating significant portions or entire Times articles. The third factor may still favor OpenAI, however, as the Times may have engaged in abnormal, targeted prompting violative of ChatGPT’s terms of use, and OpenAI could potentially tweak the model to reduce or eliminate instances of outright copying, while still using copyrighted materials for training its models.[11] With respect to the fourth factor, it is also unclear to what extent ChatGPT may reduce the marketability of the Times reporting. OpenAI has only recently integrated real-time information access into its services through its partnership with Microsoft, and evidence has yet to be adduced showing any meaningful relationship between ChatGPT and the profitability of the Times’s reporting.

Charlotte Tobitt, “Legal experts say OpenAI has ‘case to answer’ in showdown with New York Times,” Press Gazette, 01-11-2024, https://pressgazette.co.uk/media_law/new-york-times-openai-microsoft-ip-experts/

“Given the assertions and evidence given by The New York Times, it’s likely that the case has merit. However, there will be some technical points of copyright law which have probably not yet been considered by the courts in this context, on which a lot may turn.”

Will Oremus and Elahe Izadi, “AI’s future could hinge on one thorny legal question,” The Washington Post, 01-04-2024, https://www.washingtonpost.com/technology/2024/01/04/nyt-ai-copyright-lawsuit-fair-use/

“Anyone who’s predicting the outcome is taking a big risk here,” Gervais said. He said for business plaintiffs like the New York Times, one likely outcome might be a settlement that grants the tech firms a license to the content in exchange for payment. The Times spent months in talks with OpenAI and Microsoft, which holds a major stake in OpenAI, before the newspaper sued, the Times disclosed in its lawsuit.

Timothy Lee and James Grimmelmann, “Why The New York Times might win its copyright lawsuit against OpenAI,” 02-20-2024, https://arstechnica.com/tech-policy/2024/02/why-the-new-york-times-might-win-its-copyright-lawsuit-against-openai/

Fair use doesn’t always scale

Timothy Lee and James Grimmelmann, “Why The New York Times might win its copyright lawsuit against OpenAI,” 02-20-2024, https://arstechnica.com/tech-policy/2024/02/why-the-new-york-times-might-win-its-copyright-lawsuit-against-openai/

In its lawsuit against OpenAI, the New York Times provided 100 examples of GPT-4 generating long, near-verbatim excerpts from Times articles:

Timothy Lee and James Grimmelmann, “Why The New York Times might win its copyright lawsuit against OpenAI,” 02-20-2024, https://arstechnica.com/tech-policy/2024/02/why-the-new-york-times-might-win-its-copyright-lawsuit-against-openai/

These defendants could win in court—but they could lose, too. As we’ll see, AI companies are on shakier legal ground than Google was in its book search case. And the courts don’t always side with technology companies in cases where companies make copies to build their systems. The story of MP3.com illustrates the kind of legal peril AI companies could face in the coming years.

Savannah Fortis, “Legal experts weigh in on landmark NYT vs. OpenAI and Microsoft lawsuit,” Coin Telegraph, 01-15-2024, https://cointelegraph.com/news/legal-experts-landmark-nyt-vs-openai-microsoft-lawsuit

Sterba notes that OpenAI is advocating for a broad interpretation of the “fair use” defense, a position not entirely supported by existing laws but deemed necessary for the advancement of generative AI.

Timothy Lee and James Grimmelmann, “Why The New York Times might win its copyright lawsuit against OpenAI,” 02-20-2024, https://arstechnica.com/tech-policy/2024/02/why-the-new-york-times-might-win-its-copyright-lawsuit-against-openai/

If generative models never regurgitated copyrighted material, then defendants would have a compelling argument that it is transformative. The fact that the models occasionally produce near-perfect copies of other people’s creative work makes the case more complicated and could lead judges to view these companies more skeptically.

Isabella Wilkinson, “Digital standards are key for protecting democracy,” Chatham House, 07-07-2021, https://www.chathamhouse.org/2021/05/digital-standards-are-key-protecting-democracy

To protect open, democratic societies from the consequences of digital authoritarian dominance and fragmenting the global digital ecosystem, G7 states and their allies recently committed to incentivising and investing in multi-stakeholderism at both national and international levels, boosting hopes that multi-stakeholder approaches (engaging non-state stakeholders like the private sector, academia, civil society and technical experts) may generate the alliances and fresh solutions needed to bolster resilient, democratic standards and societies alike.

Daniel Larison, April 17 2012, “Democratic Peace Theory Is False,” The American Conservative, https://www.theamericanconservative.com/larison/democratic-peace-theory-is-false/

Rojas’ claim depends entirely on the meaning of “genuine democracy.” Even though there are numerous examples of wars between states with universal male suffrage and elected governments (including that little dust-up known as WWI), the states in question probably don’t qualify as “genuine” democracies and so can’t be used as counter-examples. Regardless, democratic peace theory draws broad conclusions from a short period in modern history with very few cases before the 20th century. The core of democratic peace theory as I understand it is that democratic governments are more accountable to their populations, and because the people will bear the costs of the war they are going to be less willing to support a war policy. This supposedly keeps democratic states from waging wars against one another because of the built-in electoral and institutional checks on government power. One small problem with this is that it is rubbish.

and Casey Crisman-Cox, July 18 2018, “Democracies More Prone to Start Wars – Except When They're Not,” Cal Tech, https://www.caltech.edu/about/news/democracies-more-prone-start-wars-except-when-theyre-not-82879

What kind of political leader is most likely to start a war—an invective-spewing dictator or the elected head of a democratic nation? Surprisingly, science says it's probably not the autocrat.

Skyler Cranmer, September 3 2015, “‘Democratic peace’ may not prevent international conflict,” Ohio State University, https://news.osu.edu/democratic-peace-may-not-prevent-international-conflict/

COLUMBUS, Ohio – Using a new technique to analyze 52 years of international conflict, researchers suggest that there may be no such thing as a “democratic peace.”

Andrew Prokop, “If Trump wins, what would hold him back?,” Vox, 05-20-2024, https://www.vox.com/politics/24159069/trump-guardrails-authoritarian-democracy-second-term

The guardrails protecting democracy had, it seemed, held.

The European Union is in populism’s line of sight; its structure, philosophy, and policies echo populism’s targets of choice: cosmopolitism, technocracy, supra-national compromises, trade agreements, restrictive budgetary rules, and, above all, open borders within the EU.

The EU relies on a constant need of compromises between member states and Brussels. Populism erodes shared values and the capacity to reach such compromises, making it, for example, more difficult to reach a common ground between the Macron plan for more extensive banking union and more generous mechanisms of solidarity, and Merkel’s preoccupations for more fiscal discipline and member state accountability.

Jason Willick, “Trump the autocrat? This research suggests the odds are against him.,” The Washington Post, 02-26-2024, https://www.washingtonpost.com/opinions/2024/02/26/democratic-institutions-resilience-trump/

Kurt Weyland, a political scientist at the University of Texas at Austin, rests his case for democracy not on the system’s vulnerability but on what he sees as its enduring strength. His book, “Democracy’s Resilience to Populism’s Threat,” published last month by Cambridge University Press, has gone virtually unnoticed in the popular media. Surveying 40 examples of populist leaders elected in Latin America and Europe since the late 20th century, Weyland argues that only seven overturned their country’s democratic system. And each of those instances occurred under conditions that are unlikely to occur in the United States any time soon.

The value of democracy has been taken for granted until recently, but this assumption seems to be under threat now more than ever before. As was explained in Chapter 1, democracy’s claim to be valuable does not rest on just one particular merit, and scholars tend to distinguish three different types of values (Sen 1999). This book focused on the instrumental value of democracy (and hence not on the intrinsic and constructive value), and investigated the value of democracy for peace (Chapters 3 and 4), control of corruption (Chapter 5) and economic development (Chapter 6). This study was based on a search of an enormous academic database for certain keywords,6 then pruned the thousands of articles down to a few hundred articles (see Appendix) which statistically analysed the connection between the democracy and the four expected outcomes. The frst fiding is that a reverse wave away from democracy has not happened (see Chapter 2). Not yet, at least. Democracy is not doing worse than before, at least not in comparative perspective. While it is true that there is a dramatic decline in democracy in some countries,7 a general trend downwards cannot yet be detected. It would be better to talk about ‘stagnation’, as not many dictatorships have democratized recently, while democracies have not yet collapsed. Another finding is that the instrumental value of democracy is very questionable. The feld has been deeply polarized between researchers who endorse a link between democracy and positive outcomes, and those who reject this optimistic idea and instead emphasize the negative effects of democracy. There has been ‘no consensus’ in the quantitative literature on whether democracy has instrumental value which leads some beneficial general outcomes. Some scholars claim there is a consensus, but they only do so by ignoring a huge amount of literature which rejects their own point of view. After undertaking a large-scale analysis of carefully selected articles published on the topic (see Appendix), this book can conclude that the connections between democracy and expected benefts are not as strong as they seem. Hence, we should not overstate the links between the phenomena. The overall evidence is weak. Take the expected impact of democracy on peace for example. As Chapter 3 showed, the study of democracy and interstate war has been a fourishing theme in political science, particularly since the 1970s. However, there are four reasons why democracy does not cause peace between countries, and why the empirical support for the popular idea of democratic peace is quite weak. Most statistical studies have not found a strong correlation between democracy and interstate war at the dyadic level. They show that there are other—more powerful—explanations for war and peace, and even that the impact of democracy is a spurious one (caveat 1). Moreover, the theoretical foundation of the democratic peace hypothesis is weak, and the causal mechanisms are unclear (caveat 2). In addition, democracies are not necessarily more peaceful in general, and the evidence for the democratic peace hypothesis at the monadic level is inconclusive (caveat 3). Finally, the process of democratization is dangerous. Living in a democratizing country means living in a less peaceful country (caveat 4). With regard to peace between countries, we cannot defend the idea that democracy has instrumental value. Can the (instrumental) value of democracy be found in the prevention of civil war? Or is the evidence for the opposite idea more convincing, and does democracy have a ‘dark side’ which makes civil war more likely? The findings are confusing, which is exacerbated by the fact that different aspects of civil war (prevalence, onset, duration and severity) are mixed up in some civil war studies. Moreover, defining civil war is a delicate, politically sensitive issue. Determining whether there is a civil war in a particular country is incredibly diffcult, while measurements suffer from many weaknesses (caveat 1). Moreover, there is no linear link: civil wars are just as unlikely in democracies as in dictatorships (caveat 2). Civil war is most likely in times of political change. Democratization is a very unpredictable, dangerous process, increasing the chance of civil war significantly. Hybrid systems are at risk as well: the chance of civil war is much higher compared to other political systems (caveat 3). More specifcally, both the strength and type of political institutions matter when explaining civil war. However, the type of political system (e.g. democracy or dictatorship) is not the decisive factor at all (caveat 4). Finally, democracy has only limited explanatory power (caveat 5). Economic factors are far more significant than political factors (such as having a democratic system) when explaining the onset, duration and severity of civil war. To prevent civil war, it would make more sense to make poorer countries richer, instead of promoting democracy. Helping countries to democratize would even be a very dangerous idea, as countries with changing levels of democracy are most vulnerable, making civil wars most likely. It is true that there is evidence that the chance of civil war decreases when the extent of democracy increases considerably. The problem however is that most countries do not go through big political changes but through small changes instead; those small steps—away or towards more democracy—are dangerous. Not only is the onset of civil war likely under such circumstances, but civil wars also tend to be longer, and the confict is more cruel leading to more victims, destruction and killings (see Chapter 4). A more encouraging story can be told around the value for democracy to control corruption in a country (see Chapter 5). Fighting corruption has been high on the agenda of international organizations such as the World Bank and the IMF. Moreover, the theme of corruption has been studied thoroughly in many different academic disciplines—mainly in economics, but also in sociology, political science and law. Democracy has often been suggested as one of the remedies when fghting against high levels of continuous corruption. So far, the statistical evidence has strongly supported this idea. As Chapter 5 showed, dozens of studies with broad quantitative, cross-national and comparative research have found statistically signifcant associations between (less) democracy and (more) corruption. However, there are vast problems around conceptualization (caveat 1) and measurement (caveat 2) of ‘corruption’. Another caveat is that democratizing countries are the poorest performers with regard to controlling corruption (caveat 3). Moreover, it is not democracy in general, but particular political institutions which have an impact on the control of corruption; and a free press also helps a lot in order to limit corruptive practices in a country (caveat 4). In addition, democracies seem to be less affected by corruption than dictatorships, but at the same time, there is clear evidence that economic factors have more explanatory power (caveat 5). In conclusion, more democracy means less corruption, but we need to be modest (as other factors matter more) and cautious (as there are many caveats). The perceived impact of democracy on development has been highly contested as well (see Chapter 6). Some scholars argue that democratic systems have a positive impact, while others argue that high levels of democracy actually reduce the levels of economic growth and development. Particularly since the 1990s, statistical studies have focused on this debate, and the empirical evidence is clear: there is no direct impact of democracy on development. Hence, both approaches cannot be supported (see caveat 1). The indirect impact via other factors is also questionable (caveat 2). Moreover, there is too much variation in levels of economic growth and development among the dictatorial systems, and there are huge regional differences (caveat 3). Adopting a one-size-ftsall approach would not be wise at all. In addition, in order to increase development, it would be better to focus on alternative factors such as improving institutional quality and good governance (caveat 4). There is not suffcient evidence to state that democracy has instrumental value, at least not with regard to economic growth. However, future research needs to include broader concepts and measurements of development in their models, as so far studies have mainly focused on explaining cross-national differences in growth of GDP (caveat 5). Overall, the instrumental value of democracy is—at best—tentative, or—if being less mild—simply non-existent. Democracy is not necessarily better than any alternative form of government. With regard to many of the expected benefts—such as less war, less corruption and more economic development—democracy does deliver, but so do nondemocratic systems. High or low levels of democracy do not make a distinctive difference. Mid-range democracy levels do matter though. Hybrid systems can be associated with many negative outcomes, while this is also the case for democratizing countries. Moreover, other explanations—typically certain favourable economic factors in a country—are much more powerful to explain the expected benefts, at least compared to the single fact that a country is a democracy or not The impact of democracy fades away in the powerful shadows of the economic factors..8

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

It should be noted that a couple of SDOs have recently decided to provide free read-only access on their websites for some IBR standards. This is certainly a positive development, although the “reading rooms” are not easy to locate and the home pages of the websites do not advertise their existence.83 Even these SDOs, however, continue to claim a copyright and the entitlement to revoke free access at any time.84 A reader must also waive any challenges to the copyright as a condition of getting to see the document.85 Needless to say, the revenue-maximizing choice for SDOs—particularly for a standard that is not simply voluntary but is incorporated into binding federal law—may well not be to charge the cheapest price.86 No law or agency action appears generally aimed at restricting the prices SDOs charge for IBR standards.87

Nicos Tsilas, “The Threat to Innovation, Interoperability, and Government Procurement Options From Recently Proposed Definitions of “Open Standards”,” International Journal of Communications Law & Policy, https://ciaotest.cc.columbia.edu/olj/ijclp/ijclp_10/ijclp_10h.pdf

Likewise, several of the world’s leading standards organizations, acting as part of the “Global Standards Collaboration”7 recently resolved to (1) “strongly support the adoption of effective intellectual property rights that are transparent, widely accepted and encourage broad-based participation and the contribution of valuable technical solutions by respecting intellectual property rights, including the right of the intellectual property holder to receive reasonable and adequate compensation for the shared use of its technology;” (2) “strongly support definitions of ‘open standards’ that reflect the following characteristics: such standards are (i) made available to the general public, (ii) developed (or approved) and maintained via a collaborative and consensus driven process, and (iii) subject to a RAND/FRAND intellectual property rights policy,” and (3) “strongly voice their opposition to policies that mandate compensation-free licensing provisions.”8

Nicos Tsilas, “The Threat to Innovation, Interoperability, and Government Procurement Options From Recently Proposed Definitions of “Open Standards”,” International Journal of Communications Law & Policy, https://ciaotest.cc.columbia.edu/olj/ijclp/ijclp_10/ijclp_10h.pdf

This proposed definition is squarely at odds with the approach taken by the world’s leading standards development organizations. For example, contrary to the IDA definition, the intellectual property rights (IPR) policies of ETSI, IEEE, IETF, ISO/IEC, ITU, OMA, ANSI, ECMA, and other leading standards organizations do not mandate royalty-free licensing or prohibit other “constraints on the re-use of the standard.” Rather, these organizations have policies that seek reasonable and non-discriminatory (RAND) licensing commitments, including the possibility of charging a reasonable royalty, as a basis for standards-related IP licensing for participants in the organization’s standards activities.5