I'm not a lawyer but the analysis I've read had a pretty strong argument that there's no human creativity involved in the training, which is an entirely automatic process, and as such it cannot be copyrighted in any way (the same way you cannot put a license on a software artifact just because you compiled it yourself, you must have copyright ownership on the source code you're compiling).
US standards for copyrightability require human creativity and model weights likely don’t have the right kind of human creativity in them to be copyrightable in the US. No court to my knowledge has ruled on the question as yet, but that’s the US Copyright Office’s official stance.
By contrast, standards for copyrightability in the UK are a lot weaker than-and so no court has ruled on the issue in the UK yet either, it seems likely a UK court would hold model weights to be copyrightable
So from Google/Meta/etc’s viewpoint, asserting copyright makes sense, since even if the assertion isn’t legally valid in the US, it likely is in the UK - and not just the UK, many other major economies too. Australia, Canada, Ireland, New Zealand tend to follow UK courts on copyright law not US courts. And many EU countries are closer to the UK than the US on this as well, not necessarily because they follow the UK, often because they’ve reached a similar position based on their own legal traditions
Finally: don’t be surprised if Congress steps in and tries to legislate model weights as copyrightable in the US too, or grants them some sui generis form of legal protection which is legally distinct from copyright but similar to it-I can already hear the lobbyist argument, “US AI industry risks falling behind Europe because copyrightability of AI models in the US is legally uncertain and that legal uncertainty is discouraging investment”-I’m sceptical that is actually true, but something doesn’t have to be true for lobbyists to convince Congress that it is
"Your Honor i didn't copy their weights, i used them to train my models weights"
Has the US copyright office said that about model weights? I've only heard them saying that about images produced entirely from a prompt to a model.
However, read page 22 of https://www.copyright.gov/comp3/chap300/ch300-copyrightable-... - it is their settled position that the output of a mechanical process cannot be copyrightable unless there was substantial human creative input into it - and it is pretty clear that AI training doesn’t involve human creative input in the relevant sense. Now, no doubt there is lots of human skill and art in picking the best hyperparameters, etc - but that’s not input of the right kind. An analogy - a photocopier does not create a new copyright in the copy, even though there is skill and art in picking the right settings on the machine to produce the most faithful copy. The human creativity in choosing hyperparameters isn’t relevant to copyrightability because it isn’t directly reflected in the creative elements of the model itself
A model with RLHF fine-tuning could be a different story - e.g. Anthropic went to a lot of effort to make Claude speak with a distinctive “voice”, and some of that involved carefully crafting data to use for fine-tuning, and the model may contain some of the copyright of that training data.
But, even if that argument also applies to Gemma or Llama - if someone intentionally further fine-tunes the model in order to remove that distinctive “voice”, then you’ve removed the copyrightable element from the model and what is left isn’t copyrightable. Because the really expensive part of building a model is building the foundation model, and that’s the part least likely to be copyrightable; whereas, fine-tuning to speak with a distinctive voice is more likely to be copyrightable, but that’s the easy part, and easy to rip out (and people have motivation to do so because a lot of people desire a model which speaks with a different voice instead)
but who knows judges can be weird about tech
I think the case is the strongest with RLHF - if your model speaks with a distinctive “voice”, and to make it do so you had to carefully craft training data to give it that voice, such that there are obvious similarities (shared turns of speech, etc) between your RLHF training input and the model outputs - that aspect of the model likely is copyrightable. But if you are trying to improve a model’s performance at mathematics problems, then no matter how much creativity you put into choosing training data, it is unlikely identifiable creative elements from the training data survive in the model output, which suggests that creativity didn’t actually make it into the model in the sense relevant to US copyright law
Real example: UK law says telephone directories are eligible for copyright, US law says they aren’t. The US is not violating the Berne convention by refusing to recognise copyright in UK phone directories, because the US doesn’t recognise copyright in US phone directories either. A violation would be if the US refused to recognise copyright in UK phone directories but was willing to recognise it in US ones
It is clear you can license (give people permissions to) model weights, it is less clear that there is any law protecting them such that they need a license, but since there is always a risk of suit and subsequent loss in the absence of clarity, licenses are at least beneficial in reducing that risk.
It seems to me that if some anonymous ne'er-do-well were to publicly re-host the model files for separate download; and you acquired the files from that person, rather than from Google; then you wouldn't be subject to their license, as you never so much as saw the clickwrap.
(And you wouldn't be committing IP theft by acquiring it from that person, either, because of the non-copyrightability.)
I feel that there must be something wrong with that logic, but I can't for the life of me think of what it is.
Google gives the model to X who gives it to Y who gives it to Z. X has a contract with Google, so Google can sue X for breach of contract if they violate its terms. But do Y and Z have such a contract? Probably not. Of course, Google can put language in their contract with X to try to make it bind Y and Z too, but is that language going to be legally effective? More often than not, no. The language may enable Google to successfully sue X over Y and Z’s behaviour, but not successfully sue Y and Z directly. Whereas, with copyright, Y and Z are directly liable for violations just as X is
Now, if you are aware of a contract between two parties, and you actively and knowingly cooperate with one of them in violating it, you may have some legal liability for that contractual violation even though you weren’t formally party to the contract, but there are limits - if I know you have signed an NDA, and I personally encourage you to send me documents covered by the NDA in violation of it, I may indeed be exposed to legal liability for your NDA violation. But, if we are complete strangers, and you upload NDA-protected documents to a file sharing website, where I stumble upon them and download them - then the legal liability for the NDA violation is all on you, none on me. The owner of the information could still sue me for downloading it under copyright law, but they have no legal recourse against me under contract law (the NDA), because I never had anything to do with the contract, neither directly nor indirectly
If you download a model from the vendor’s website, they can argue you agreed to the contract as a condition of being allowed to make the download. But if you download it from elsewhere, what is the consideration (the thing they are giving you) necessary to make a binding contract? If the content of the download is copyrighted, they can argue the consideration is giving you permission to use their copyrighted work; but if it is an AI model and models are uncopyrightable, they have nothing to give when you download it from somewhere else and hence no basis to claim a contractual relationship
What they’ll sometimes do, is put words in the contract saying that you have to impose the contract on anyone else you redistribute the covered work to. And if you redistribute it in full compliance with those terms, your recipients may find themselves bound by the contract just as you are. But if you fail to impose the contract when redistributing, the recipients escape being bound for it, and the legal liability for that failure is all yours, not theirs
By contrast, UK copyright law accepts the “mere sweat of the brow” doctrine, the mere fact you spent money on training is likely sufficient to make its output copyrightable, UK law doesn’t impose the same requirements for a direct human creative contribution
Nobody knows for sure what the legal answer is, because the question hasn’t been considered by a court - but the consensus of expert legal opinion is copyrightability of models is doubtful under US law, and the kind of argument you make isn’t strong enough to change that. As I said, different case for UK law, nobody really needs your argument there because model weights likely are copyrightable in the UK already
It's particularly perilous since the AI trainers are at the same time in a position where they want to argue that copyrighted work they included in the training data don't actually survive in the trained model.
Also i'm pretty sure none of the AI companies would really want to touch the concept of having the copyright of source data affect the weight's own copyright, considering all of them pretty much hoover up the entire Internet without caring about those copyrights (and IMO trying to claim that they should be able to ignore the copyrights of training data and also that the GenAI output is not under copyright but at the same trying trying to claim copyright for the weights is dishonest, if not outright leechy).
(The combination is what makes it copyrightable).
It's the “actual creativity” inside. And it is a fuzzy concept.
From what I understand, copyright only applies to the original source code, GUI and bundled icon/sound/image files. Functionality etc. would fall under patent law. So the compiled code on your .ISO for example would not only be "just raw numbers" but uncopyrightable raw numbers.