Last month, Washington insisted that training models on other people’s work without permission is so obviously fair that licensing requirements would be ruinous to national innovation. It also insisted that training models on other people’s work without permission is an act of industrial predation posing a grave threat to national security.
Both propositions cannot hold simultaneously. Either the outputs of these systems are protectable under the law, in which case the writers, musicians, artists, and programmers whose work American models were built on can hold a claim that the Justice Department has denied. Or they are not, in which case the six Chinese laboratories accused of “malicious and targeted” distillation attacks have not done anything that Elon Musk has not freely admitted to under oath, without consequence.
Originally published: Lawfare on October 8, 2026 by Lisa Klaassen
Then post the original goddamn link! Some stupid blog site regurgitating stories from real news sites.
i can’t really articulate why but I don’t think this should be in /c/piracy
It doesn’t help that the OP is some power mod for 8 different communities and posts about 30 articles a day. Bot or real person? Hard to tell.
I can’t really articulate why but I do think this should be in /c/piracy
Piracy is a loosely defined term that in modern times involves the illegal taking of copyrighted material. This situation is about whether people, by distilling models from the AI companies, are illegally taking copyrighted material when the AI companies themselves took and used, arguably illegally, copyrighted material from the original authors.
As an IP attorney and engineer that practices right in this field, I have a lot of complex thoughts. First, copyright term in the modern US is way too long (thanks to Disney lobbying Congress a bunch). Nonetheless, I think that the manner and size of the taking of copyrighted material to train current AI models is way outside the bounds of fair use, despite what most courts are saying. However, in my opinion, the models are not really derivative works in the manner they exist now. Rather, the models as a whole are not even copyrightable material under the current law because the companies lack sufficient control in the creation of the output of the models. So at best, the models are protected by trade secret law. And if people can distill those models, then that is fine because trade secrets don’t protect derivative works, only things that are confidential. It would be like KFC saying you can’t try to figure out how we made this food by eating it and taking the food apart and tasting it and testing it. And, again in my opinion, contract law (i.e., the terms of use for using the models) also does not provide the companies a viable claim because of a weird section of copyright law that basically doesn’t allow state law claims, such as contract claims, to be brought when they are in effect basically copyright claims.
If everyone followed my interpretation of the law, original authors would get royalties for copyright infringement by the AI companies, the AI companies would only be able to stop distillation of their models by engineering a way to stop distillation, and people distilling such models would have no liability at all unless they illegally took the model weights and otherwise from the company in violation of trade secret laws.
But that’s not how this will turn out. Courts will, and already have, called this fair use. And even if it wasn’t fair use, courts will take (what should be a rare step reserved for congress) consideration of public policy, and that includes national security, and say that national security mandates that we as a country just accept the status quo for the good of our country and laws. While I agree that this technology poses a uniquely dangerous national security risk, if we’re being real, its from the corporations, not China or other countries at this time.
But hey, I’m just a lawyer that manages a massive AI, robotics, and cyber security IP portfolio for one of the leading universities in the world in these fields. The judges and politicians that make these decisions generally do not listen to me.
