Some notes:

• "Fair use" applies only to copyright, not to plagiarism. Many authors are more concerned about being stripped of credit, than that their work is being reused. This applies for instance to Open Source source code: where published code also often acts as a portfolio that has been published to showcase the abilities of the programmer to prospective employers.

• The EU "Artificial Intelligence Act" says "Any use of copyright protected content requires the authorisation of the rightsholder", except for some exceptions.

Commercial models are not subject to these exceptions. That means opt-in, not opt-out.

Expand full comment

Hi. Thanks for this.

Regarding the legality of the models, "placing on the market, putting into service for this specific purpose" refers to the intended use of the models, which is not to infer and guess a person's state of mind. Emphasis on "and" because it always involves guessing. The science is clear that inferring someone's state of mind from their face is unreliable, especially for users trying to deceive the system or for a subset of outliers. Thus, this can be considered a gameplay feature rather than a real function, let alone the "specific purpose of the model".

Additionally, "person in the areas of workplace and education institutions" implies that these models would be used by workplaces or educational institutions, which itself does not automatically makes them illegal as this has not been stipulated by OpenAI.

Overall, the OpenAI model is not illegal. What would be illegal is if a third party used OpenAI's API or technology to provide such services. That's the crux of the argument. In that case, I'm not even sure OpenAI could be held liable. However, it would be prudent for OpenAI to be aware of which companies are using their services, and to explicitly prohibit their use for sentiment analysis or anything else that violates the EU AI law (which would largely protect them from misuse by third parties --> this is not to say that they do not need to make everything under their purveyor role tight against misuse and illegal actions).

Expand full comment