Copyright protects against both derived works and copies in any form, including lossy or inaccurate copies that do not reach the originality level to be derived works, not just “exact copies”.
But that doesn't really matter, here, because OpenAI isn't being sued for producing and distributing an LLM (against a mere LLM distributor, NYT would have a much weaker case), they are being sued for providing a service which takes in copyrighted works and spits out copies, both exact and not, that are well within the established coverage of what is a copyright violation that does not fall within exceptions like fair use. and when they control the whole path in between original and copy, then the path in between is largely immaterial.
Its not an “is training AI on copyright protected works fair use” case, its an “is producing copies well within the established parameters of commercial copright violation rendered fair use by sticking an LLM in the middle of the process as part of the mechanism of copying” case.
Copyright protects against both derived works and copies in any form, including lossy or inaccurate copies that do not reach the originality level to be derived works, not just “exact copies”.
But that doesn't really matter, here, because OpenAI isn't being sued for producing and distributing an LLM (against a mere LLM distributor, NYT would have a much weaker case), they are being sued for providing a service which takes in copyrighted works and spits out copies, both exact and not, that are well within the established coverage of what is a copyright violation that does not fall within exceptions like fair use. and when they control the whole path in between original and copy, then the path in between is largely immaterial.
Its not an “is training AI on copyright protected works fair use” case, its an “is producing copies well within the established parameters of commercial copright violation rendered fair use by sticking an LLM in the middle of the process as part of the mechanism of copying” case.