The distinction between a copy and a derivative work isn't the issue. A game is expressive content, regardless of whether it's cracked, modified, public domain, or whatever. If you distribute a pirated game, the thing you're distributing contains expressive content, so if somebody else holds copyright to that content then the use is infringing.
My point is that with LLM outputs that's not true - according to the copyright office they are not themselves expressive content, so it's not obvious how they could infringe on (i.e. contain the expressive content of) other works.
I think you're missing something really obvious here. Piracy is not expressive content. You call it a game, and therefore it must be - but it's not. It's simply an illegal good. It doesn't have to serve any purpose. It cannot be bound by copyright, due to the illegal nature. The Morris Worm wasn't copyrightable content.
Something is not required to be expressive content, to be bound under law. That's not a requirement.
The law goes out of its way to not define what "a work" is. The US copyright system instead says "the material deposited constitutes copyrightable subject matter". A copyrightable thing is defined by being copyrightable. There's a logical loop there, allowing the law to define itself, as best makes sense. It leans on Common Law, not some definition that is written down.
"an AI-created work is likely either (1) a public domain work immediately upon creation and without a copyright owner capable of asserting rights or (2) a derivative work of the materials the AI tool was exposed to during training."
AI outputs aren't considered copyrighted, as there's no person responsible. The person has the right to copyright for the creations. A machine, does not. If the most substantial efforts involved are human, such as directly wielding a tool, then the person may incur copyright on the production. But an automated process, will not. As AI stands, the most substantial direction is not supplied by the person.
> It's simply an illegal good. It doesn't have to serve any purpose. It cannot be bound by copyright, due to the illegal nature. The Morris Worm wasn't copyrightable content.
Do you have a source that illegal works can’t be / aren’t copyrighted?
> As long as a work is original and fixed in a tangible medium of expression, it is entitled to copyright protection and eligible for registration, regardless of its content. Thus, child pornography, snuff films or any other original works of authorship that involve criminal activities are copyrightable.
It isn't that an illegal good can't be copyrighted, exactly. It's that if it is illegal, to own the copyright, you have to assert your ownership. In most cases, the consequences of which may involve the state seizing said property from you - to prevent you profiting from the crimes involved.
Nothing about this is correct, at least in the US. Copyright infringement is a civil matter - the IP owner can sue over it, but it's not a crime and the state doesn't get involved (unless something else is going on beyond just infringement).
> Piracy is not expressive content. You call it a game, and therefore it must be - but it's not. It's simply an illegal good. It doesn't have to serve any purpose. It cannot be bound by copyright, due to the illegal nature.
To be honest, reading this I have no idea what you think my post said, so I can only ask you to reread it carefully. Obviously nobody would claim "piracy is expressive content" (what would that even mean?). I said a game is expressive content, and that that's why distributing a pirated game infringes copyright.
My point is that with LLM outputs that's not true - according to the copyright office they are not themselves expressive content, so it's not obvious how they could infringe on (i.e. contain the expressive content of) other works.