How would a finding of copyright breach affect third parties using data derived from the breach?

Question

There are multiple cases in the court system challenging the legality of training AI models on copyrighted work. A recent one seems particularly damming if true, with OpenAI accused of using copyright infringing datasets such as Library Genesis in their training.

Some trained models are made available as "open source" software, such as Llama, OpenLLaMA and Stable Diffusion.

The model weights encode the training data. This is a large number of numbers that represents the weight assigned to each node in the model and encodes the training process. As I understand it is is considered to be data rather than creative expression. Note Llama (not really open source) and OpenLLaMA (Apache 2.0) only differ by these weights, and therefore the training that went into generating them. These model weights are uncopyrightable and unpatentable, according to this answer and supported by the federal register regarding patents and the Copyright Office regarding copyright.

Suppose once all these court cases have gone through it is determined that the only breach of copyright was the copying that occurred during the training process. The companies that performed this training would clearly be in breach of copyright. What about a third party, for example a developer who used the open source code/weights to create a non-infringing product? What about an individual user who used that product? What effect does a copyright breach in the creation of data have no users of that data?

Answer 1

You assert the following relevant premises:

• the only breach of copyright was the copying that occurred during the training process;
• the ultimate output is non-infringing (you mention "a developer who used the open source code/weights to create a non-infringing product").

Taking your premises as true, then there is no copyright liability:

• to anyone, with respect to the making of the non-infringing output;
• to anyone, for use of the non-infringing output of the model.

These conclusions follow from the nature of infringement and the remedies available in copyright law (see 17 U.S.C. Chapter 5). If a work is non-infringing, there is no remedy. And use is not one of the exclusive rights of a copyright owner in any case.