Jun 26, 2026, 2:43 PMThe ordinary property approach leads to a sort of analysis where judges try to isolate the spark of creativity in an earlier work and determine whether a later work used that spark, and if so, whether it added sufficiently novel changes to that spark. It's comparative art criticism, but by judges.
Brought to AI, it turns into downright metaphysics: is the spark of human creativity encoded in model parameters? And now everybody is confused.
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Jun 26, 2026, 2:44 PMWhen somebody tells you that a work is transformative and therefore fair use, they're equating comparative criticism with the whole of copyright law.
Fediverse, the thing I most want you to get out of this paper is that the ordinary property approach to copyright is why copyright is problematic. We don't have to go full libertarian here and declare that anybody can take anybody's work, but there's a vision of copyright without everybody on the defensive about when imitation is too much.
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Jun 26, 2026, 2:44 PMThe simpler approach to AI, I propose, is to go back to the other thread: when you say you're going to mass-harvest the work of creators so that you can replace those creators at mass scale, that's dead center in the sphere of unfair business dealings. If you only pay creators with enough leverage and tell the others you're entitled to ignore stated conditions about a copyrighted work and take whatever you want, that's unfair dealing.
Isn't that easy? You don't need metaphysics.
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Jun 26, 2026, 2:44 PMOf the two threads, comparative criticism is far more pro-business. You can be a megacorp or a 10-year old kid and violate copyright under the compare-the-texts approach. That makes comparative criticism divisive, and if comparative criticism==copyright, then that makes copyright divisive.
But if our interest is in making sure that money is distributed fairly when there's money on the table, there's a century of copyright jurisprudence focusing on that question, not micromanaging artists.
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Jun 26, 2026, 2:44 PMThere's much more in the article. If you're not a lawyer—especially if you're not a lawyer—I expect you'll get from it a better understanding of copyright and how it could be better. Thx for reading!
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