Copyright implications of dismissing Individual and Representative Plaintiffs v. Github Inc, Microsoft Inc, OpenAI (et al.) on derived LLMs &quot;Individual and Representative Plaintiffs v. GITHUB, INC., a Delaware corporation; MICROSOFT CORPORATION, a Washington corporation; OPENAI, INC., a Delaware nonprofit corporation; [...]&quot; is a class action lawsuit filed against OpenAI et al which includes the allegation of &quot;violation of the Digital Millennium Copyright Act&quot; (p.4) wrt the way Codex, a GPT-3 series large language model, was trained using open source code from Github user repositories. They note &quot;Numerous questions of law or fact common to the entire Class arise from Defendants’ conduct—including [...] Whether Defendants’ conduct violated the Class’s rights under the DMCA when GitHub and OpenAI caused Codex and Copilot to ingest and distribute Licensed Materials without including any associated Attribution, Copyright Notice, or License Terms. (VI)(D)(37)-(VI)(D)(37)(1) The defendants have made a motion to dismiss the case on several grounds stating &quot;the crux of this claim asserts that OpenAI improperly benefited from using Licensed Materials to create Derived Works&quot; (VI)(A)(3)(B) but refuting that &quot;Plaintiffs do not asserts a copyright infringement claim. Instead they allege that Defendants violated the DMCA by [...] (3) knowingly providing CMI that is false by &quot;asserting and/or implying that CoPilot is the author of Licensed Materials&quot;&quot;. (VI)(C)(1). If the DMCA abuse claim of this case gets dismissed, I'm wondering if it would have the effect of nullifying the legal basis to prosecute commercial use of large language models (LLMs) derived from data selected by an even larger model (henceforth, &quot;data derived LLM&quot;) -- or at least setting the precedent to do so. Examples of data derived LLMs include Alpaca, Koala, GPT4ALL, and Vicuna, all of which were trained on data produced by OpenAI's models and are currently only available for non-commercial purposes. EG, &quot;the instruction data is based on OpenAI’s text-davinci-003, whose terms of use prohibit developing models that compete with OpenAI.&quot; Also worth consideration is this provision in OpenAI's ToS: (c) Restrictions. You may not [...] (iv) except as permitted through the API, use any automated or programmatic method to extract data or output from the Services, including scraping, web harvesting, or web data extraction; [...] The precedent set by the action to dismiss or not dismiss the class action lawsuit against OpenAI et al could have an enormous impact on the economics of training LLMs, since (as of Apr 29) it is orders of magnitude cheaper to train a data derived LLM like Alpaca than a new one. Surely OpenAI would attempt to restrict others from using their LLMs to train new ones for fractions of the price (the maximum penalty for violation is suspension and termination ToS 6(a)), but under their current ToS, could they prosecute such incidents? The big question I'm asking is: Is it considered intellectual property theft to capitalize on synthetic datasets produced by OpenAI's LLMs?
A motion to dismiss sets no precedent Whether it succeeds or not, it does not result in a judgement on the merits, it is simply an analysis on whether the case as pleaded shows the defendant has a case to answer. The case would have to go to trial, have a judgement issued (i.e. not settle), and await the result of final appeals (if any) before it would be considered precedent. As to your final question Is it considered intellectual property theft to capitalize on synthetic datasets produced by OpenAI's LLMs? No one knows. Hence the lawsuit.
It is legsl to include references showing readers where facts you include in your article were derived, or where they can be supported. Indeed academic ethics generally require doing so, although there is (in most cases) no legal requirement to do so. Listing the title, author, and publication information of a source is not an infringement of copyright. That J. Jones published an article on &quot;How to Find the Purple Moth&quot; [imaginary example] in volume 28 of the Journal of Moth Science is a fact.Facts are never protected by copyright. Indeed in US law 17 USC 102(b) provides that: b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. The laws of other countries are similar on this point. Indeed I do not know of any country in which facts are protected by copyright. So, including such references is fully legal, and no permission from the sources being cited is required. This is true whatever form the reference takes. In particular, if an online address for the content is included, this is still true. I do not know whether Medium, or any other specific publishing platform, will pat fees to authors based on clik-thru from such citations. That depends on their particular policies, which might be found in their Terms of Service or other policy document.
The maxim &quot;de minimis non curat lex&quot; is not so much of a rule as a guideline. It essentially says that when a court considers a matter too trivial to bother with, it can simply dismiss the case. It also constitutes advice not to make a legal case over trivial matters. It always involves judgement over what is or is not trivial in a particular context. It does not ever change the law. For example, perhaps it's the case that photocopying a page of a book, in a particular situation, would be considered to be a copyright crime without the use of the rule. Is it then the case that the rule might be able to be invoked, to say that the photocopying is perfectly lawful? Photocopying a single page of a book is very unlikely to be a crime. Under US law the government must prove intentional copying of works for personal financial gain with a total retail value of at least $1,000 (and in practice criminal charges are not brought unless unlawful copies are made in bulk as a business). I have not found the exact monetary lower limit of criminal copyright infringement in England and Wales, but I am confident that a single page of a book would not qualify. Beyond that UK law specifically provides for fair dealing. This allows one to lawfully make a copy or use copyrighted materiel for, among other purposes: Private and research study purposes. Performance, copies or lending for educational purposes. Criticism and news reporting. Incidental inclusion. Copies and lending by librarians. Caricature, parody or pastiche. (Source: &quot;UK Copyright Law: Fact sheet P-01&quot; If making a copy of a page of a book did not fall within the scope of fair dealing, then it might be an actionable tort, and if the copyright owner choose to peruse it, the maxim would not automatically lead to a dismissal, although it could form part of an argument for dismissal. If such dismissals occur routinely, a legal realist might say that showed that such copying was not in fact covered by the law, but most legal theorists would not put it that way. (Legal realists generally take the view that the actual law is what courts actually enforce, not what is on the statute books or even what is described in court opinions.)
The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself. Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit. Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase. Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present. Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them. A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits.
Provided you are in one of the 170+ countries signatory to the Berne Convention (the current 10 non-signatories are, exhaustively: Eritrea, Marshall Islands, Nauru, Palau, San Marino, Iran, Iraq, Ethiopia, Somalia, and South Sudan), then copyright comes into existence at the moment a work is fixed in a tangible medium, not when it is published. The initial copyright owner is the author of the work. In cases of employment, the "author" might be the natural person who authored the work, or the corporate person who employed the natural author. To clarify your thinking about registration: copyright registration is a public record of authorship (or copyright ownership). Registration does not create a copyright, but is merely a recording of the copyright that was automatically created at the moment of original authorship. Depending on circumstances and jurisdiction, Alan might have a legitimate claim to copyright on his own work. However, he will be quite hard-pressed to find a convincing theory of law that allows him to publish the unpublished copyrighted work of other people without their permission. This leaves him either to admit defeat -- he cannot possibly own the copyright of his coworkers' code, so he cannot have legally reproduced it -- or else make the baldfaced lie that the code has no other authors other than Alan himself. For your company to disprove such a claim, you may employ sworn testimony of your coworkers, you may employ code analysis to show differing coding styles (suggestive of multiple authors), or you may show code backups or version control history showing the progressive authorship of the work over time by many people. (Sure, a Git history is possible to fake, but a realistic history with feature branches, "whoops, undid the typo in the last commit" messages, etc. would lend significant weight to your company being the original authors.)
The only issue relevant to your age is the (ir)revocability of the license. GPLv3 purports to be an irrevocable license. To be really irrevocable, the license would need to grant certain rights in exchange for something of value, that is, you need a license that passes muster as a contract. Copyright licenses are typically treated as contracts, but it is not clearly established in law that licenses are contracts or are not contracts. Out of the goodness of your heart, you can grant permission to use your property, but you can also withdraw that permission. If you have a contract granting perpetual permission to use your property in exchange for something of value, then you can't later withdraw that permission. In the case of Jacobsen v. Kratzer, the sides advances opposing theories that the license was a "bare license" vs. was a contract. (The matter was ultimately settled out of court). This article puts together the legal factors surrounding the notion of license as contract, see p. 21 ff, and esp. §IV for arguments that licenses should be contracts, to be fully enforceable. A contract for non-essentials formed with a minor is not enforceable, until you are 18. You could therefore revoke the license, until you are 18. Anyone who uses the software does so at their peril. However, if the license is not a contract, no existing legal doctrine (in the US) whereby the permission is irrevocable. In other words, yes you can, at their peril. The whole license-as-contract issue is very complicated, and I'm only focusing on the revocability issue. There is a separate question whether one can sue a user for both copyright infringement and breach of contract. The case of Artifex v. Hancom, see also this analysis, found that (in the particular case), plaintiff can pursue the matter as both infringement and contract breach.
The requirement to make the code publicly available is binding on Olio, and on Olio's successor, Flex. Olio, by accepting the code under the GPL, had contracted with the original author of that code, one of the contract provisions being to make any modified code available publicly. If Olio fails to abide by that agreement, it is in violation of the license, and the original author could sue Olio for copyright infringement, or sue Flex as having bought the assets and liabilities. But the individual employees of Olio are not under any obligation to publish such modified code, as they were presumably not parties to the license deal -- Olio was. Therefore the NDA does not require them to violate any law or contract to which they might be parties. The NDA could probably not be used to prevent the employees from testifying if called in such a copyright suit. If the NDA did require an illegal action, it would be void. If it merely required a person to violate a civil agreement that could be settled for money, it might or might not be enforceable, depending on the exact provisions, its reasonableness under the exact circumstances, and the local law.
From the perspective of US law: Scenario 1: Removing the watermark is perfectly legal, obviously. You own the copyright. Scenario 2: Abandonware is not really a thing in the US when it comes to copyright (and the Wikipedia article you linked says this.) Even if the company went out of business, the copyright almost certainly went to somebody - the former owners, the creditors, etc. As far as the Internet Archive goes, they are taking advantage of an exemption in the DMCA's anti-circumvention provisions, along with the copyright exemption found in 17 USC § 108. But both of these exemptions require you to be a "library or archive" to take advantage of them, and you are not a library or archive, so you cannot take advantage of either. As a practical matter, if the software is really abandoned it's unlikely that anyone will actually come after you for infringement, but that's not quite the same as it being legal - you could be on the hook for up to $150,000 in statutory damages per work infringed, if the owner does sue you. You could attempt to claim fair use, of course. If the image is abandoned you might get a favorable result on factor 4 of the fair use test (the effect on the market for the original) since there's no market if nobody can find the owner. But it would depend on the other factors; that alone wouldn't get you fair use. Scenario 3: I'm not sure where you get the idea that downloading a copyrighted image to your desktop is somehow protected. It isn't automatically legal to save a copy of something just because it's on the Internet. And the existence of a watermark may indicate that someone wanted to prevent the file from being copied. The website containing the image will likely have terms of use, which may indicate whether or not you're allowed to make a copy. For example, Stack Exchange's TOS says in part: Subscriber may download or copy the Content, and other items displayed on the Network for download, for personal use, provided that Subscriber maintains all copyright and other notices contained in such Content.