This feels like an unwarranted anthropomorphization of what LLMs are doing.
That is, I don't think anyone (especially on this website) would have a problem if someone read a ton of books, and them opened a website where you can chat with them and ask them questions about the books. But if this person had "super abilities", where they could read every book that ever existed, then respond almost instantly to questions about any book that was read, and the person could respond to millions of questions simultaneously, I think that "fair use" as it exists now would have never existed - it completely breaks the economic model that copyright was supposed to incentivize in the first place. I'm not arguing which position is right or wrong, but I am arguing that using "if a human did it it would be fair use" is a very bad analogy.
As a similar example, in the US, courts had regularly held that people walking around outside don't have an expectation of privacy. But what if computers could then record you, upload you to a website, and use facial recognition so that anyone else in the world could set an alert to be notified if you ever appeared on some certain camera. The original logic that fed into the "no expectations of privacy when in public" rulings breaks down solely due to the speed and scale with which computers can operate.
I don't see why it would be different for LLMs.
The issue is the recall LLMs have over copyrighted contents.
Personally, my read is that the issue with most of these cases is that we are treating and talking about LLMs as if they do things that humans do. They don't. They don't reason. They don't think. They don't know. They just map input to probabilistic output. LLMs are a tool like any other for more easily achieving some outcome.
It's precisely because we insist on treating LLMs as if they are more than an inefficient storage device (with a neat/useful trick) that we run into questions like this. I personally think the illegal status of current models should be pretty clear simply based of the pirated nature of their input material. To my understanding, fair use has never before applied to works that were obtained illegally.
There is no benefit to humanity, in aggregate, to have copyright remotely as it is today - as a legal hammer and as IP for corporate profits and all the rest.
I certainly think LLMs count as transformative usage in either case. And for something like the Ghibli meme, let's mourn the loss of our ability to distinguish real Ghibli art made with human intention from AI slop, but I'm not going to feel too bad that something that used to be laborious to create is suddenly trivial.
AI is a tool: Miyazaki could produce films at 10x speed with exactly the same care and quality. This exactly mirrors the complaints people had when the printing press came around and suddenly scribes had no value and laboriously and meticulously created books were now printed on trashy paper that cost 1/100th the price. And we did lose something in that, but what we gained was immeasurably more important.
If a website gets organically DOSed by Slashdot, that is not an illegal attack.
LLMs 'reading' a book is not the same as a human reading a book in the exact same way that following a very popular link is not participating in a DDOS
Misanthropic has convinced this particular judge, but there are many others, especially in other countries.
This is basically the plot to Vinge's Rainbows End, AI and all.