“Machines have no rights, they only have duties.” The borrowings, copies, or even worse, made by LLM-type AIs are entirely based on an illegal interpretation of L122-5.
Fair Retribution and Protection
The fragile Empire of current AI was built on a legal sleight of hand, an illusionist’s trick, a great diversion of moral, ethical and above all legal values. They have deliberately ignored and obscured a cruel and merciless reality for them which will undermine all their pretensions and extensions.
Like any profound truth, it is contained in a few words.
“Machines have no rights, they only have duties.”
Thus allowing oneself to copy, pillage (action which we will call photocopying) without any remuneration of data coming from books, websites, booklets and other types of media, and without the express authorization of the authors, is specifically prohibited by and in the law. Because AI is based on an article which, in French jurisdiction (There are equivalents in all other countries in the world, with a few exceptions), is the following, article L122-5 of the Intellectual Property Code. Let us already note that article L122-4 already expressly prohibits any reproduction or representation of a work without authorization. However, it is common knowledge that legal sites have been completely sucked up by AIs, without compensation or attribution, and that even template languages have been powered by looting of online sites containing pirated works. This point alone should allow the banning of AI having practiced these methods, but we are going to go to the battleground adopted by AI companies, namely this famous article L122-5.
It is the one which allows the quotation, short, let us note this word, of contents. Here is an excerpt:
Article L122-5
“Analyses and short quotations justified by the critical, polemical, educational, scientific or informational nature of the work in which they are incorporated”, provided that the name of the author and the source are clearly indicated”. Summarizing the situation, AIs do not carry out any analysis, on the other hand in terms of quotations, which are in fact copy-pasted, so yes there is use and abuse of use!
But it is by twisting the spirit of the law that AI lawyers have managed to make their clients survive, because in fact, in case law, there is no fixed legal “percentage” which would define what a “short” citation would be. Simply, on the one hand, twisting the mind is not obliterating the letter of the law. Therefore, no major AI is in compliance in France with article L122-5. And on the other hand, to return to the truth which was expressed at the top of this text, this article of law concerns only and only Humans. In no case does it authorize the practice by tools, machines and other different technical and technological devices to use this right. This is very logical, because in fact, we are talking about exchanges of views, ideas, enrichment of the community through discussion and education. But this only concerns humans, not AI.
Machines do not have the rights of humans
AIs are therefore legally unable to use anything that has not been specifically created from A to Z by human actors directly paid for their creation. And it is not the leonine contracts signed between AI and content providers which will modify and alter the legal scope of this argument. Especially since the representatives of authors who contract with AI have not, most of the time, signed contracts with their producers which included the use by the AI of their original creations. There is therefore a contradiction with the articles of law and especially morality and ethics.
Strong political action is needed
Thus, it is the community in the sense of the city and in particular its representatives that must be regulated, that is to say, this practice must be prohibited, but not without adopting a transition strategy. It is clear that very few (none?) current AIs comply with the rights that exist in the main countries on the planet. However, in the face of mainly American hegemony, it is appropriate to favor possible European or at least national champions. We can therefore adopt decrees temporarily exempting companies established in France (head office) from not relying on compliance with the law while their tools are brought into compliance. Tools which, consequently, will have to evolve and mutate to no longer function on the simple photocopy of what exists.
Last point, do not fall into the trap of the technological excuse by saying that it is not possible to generate AI without having to draw inspiration from and photocopy already existing data. This is completely false. There are many other technological solutions that are being developed.
Additional protection to come
And in terms of structuring a response now to this problem, we will present in the next column, an IT and Legal license format to allow content holders to very clearly express their choice on the use of their creation.
