인공지능 학습 관련 저작권 침해소송의 현실적 문제에 관한 소고 - 미국 캘리포니아 북부지방법원 계류중 사건을 중심으로 -

In the context of copyright infringement lawsuits involving the use of copyrighted works as training data of AI model/system, the question is whether the ‘AI service provider/user’ or the ‘trained model itself’ and/or the ‘AI outputs’ generated from the model/system can be the subject of a claim for injunction of infringement under Article 123 of the Korean Copyright Act. The development of AI models/systems and the use of copyrighted works by developers/providers in the training process may constitute direct copyright infringement, ironically, it may be difficult to conclude that the AI model and/or its output created through this series of training processes are infringing works in the above direct infringement conducts. This is a big difference from the situation where conventional copyright infringement is usually accompanied by the presence of infringing works. Therefore, it is also requested to consider whether it is necessary to expand to a certain degree the subject matter and/or scope of traditional reproduction rights in consideration of the social and technological context in which generative AI has emerged. Not impossibly, as alleged by the rights holders in some cases in the U.S. District Court for the Northern District of California, a normative interpretation is possible that ‘even if a copyrighted work used as training data is embodied in an algorithm or mathematical expressions, if it results in the same result as being copied and stored in the AI model itself, this is also tantamount to copying the work’. In addition, from the case of the U.S. District Court for the Northern District of California, we found the following implications: (1) “Difficulties in collecting evidence and jumbling between the parties”, (2) “Difficulties due to the technical characteristics of machine learning(especially in the difficulty of identifying infringed works)”, (3) “Unprofitableness of DMCA and/or CMI(Copyright Management Information)”, and (4) “Reduction of the issues in infringement litigation to the issue of substantial similarity.” With these practical issues in mind, it is necessary to pay attention to the outcome of the cases of the U.S. District Court for the Northern District of California.