Can AI companies legally ingest copyrighted materials found on the internet to train their models, and use them to pump out commercial products that they then profit from? Or, as the tech companies claim, does generative AI output constitute fair use?

This is kind of the central issue to me honestly. I'm not a lawyer, just a (non-professional) artist, but it seems to me like "using artistic works without permission of the original creators in order to create commercial content that directly competes with and destroys the market for the original work" is extremely not fair use. In fact it's kind of a prototypically unfair use.

Meanwhile Midjourney and OpenAI are over here like "uhh, no copyright infringement intended!!!" as though "fair use" is a magic word you say that makes the thing you're doing suddenly okay. They don't seem to have very solid arguments justifying them other than "AI learns like a person!" (false) and "well google books did something that's not really the same at all that one time".

I dunno, I know that legally we don't know which way this is going to go, because the ai people presumably have very good lawyers, but something about the way everyone seems to frame this as "oh, both sides have good points! who will turn out to be right in the end!" really bugs me for some reason. Like, it seems to me that there's a notable asymmetry here!