alt Hacker NewsTransformative is not the only component of determining fair use, there’s also the economic displacement aspect. If you’re doing a book report and include portions of the original (or provide an interface for viewing portions à la Google Books) you aren’t a threat to the original authors ability to make a living.
If you’ve used copyrighted books and turned them into a free write-a-book machine, you are suddenly using the authors own works against them, in a way that a judge might rule is not very fair.
“ Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.”
Sure. But it seems very difficult to argue that LLM's are harming that ability to make a living in a direct way.
This is for the same reason that search results or search snippets aren't deemed to harm creators according to copyright. Yes there might be some percentage lost of sales. And truly, people may be buying less JavaScript tutorial books now that LLM's can teach you JavaScript or write it for you. But the relation is so indirect, there's very little chance a court would accept the argument.
Because what the LLM is doing is reading tons of JavaScript and JavaScript tutorials and resources online, and producing its own transformed JavaScript. And the effect of any single JavaScript tutorial book in its training set is so marginal to the final result, there's no direct effect.
And the reason this makes sense is that it's no different from a teacher reading 20 books on JavaScript and then writing their own that turns out to be a best-seller. Yes, it takes away from the previous best-sellers. But that's fine, because they're not copying any of the previous works directly. They're transforming the facts they learned into a new synthesis.