Generative AI companies call their use of copyrighted work to train models 'transformative' because they hope this gets them off the hook legally. It doesn't.
Two important things to remember about 'transformative' use of copyrighted work, outlined here by Jane C. Ginsburg:
1. Simply transforming something doesn't make it 'transformative' in this context. Transformativeness is not just a measure of distance in e.g. pixel space; it includes the *purpose* of the use.
2. Even if a use *is* judged to be transformative (see 1), transformativeness is not the only factor in fair use decisions.
If you hear people describing their use of copyrighted work for AI training as 'transformative', please bear this in mind: the output being aesthetically different to the input does not necessarily make the use 'transformative' in the eyes of the law, and there is lots besides transformativeness that is important.
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