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Search engines don't create market harm for a work because they don't compete with it. In fact, they do the opposite: they advertise the work, making it more ac

Search engines don't create market harm for a work because they don't compete with it. In fact, they do the opposite: they advertise the work, making it more accessible and increasing exposure. These AI tools on the other hand seem to do the exact opposite. They can (or could, if they got good enough) absolutely compete with a work, and therefore seem like they create substantial market harm. The character of use also seems vastly different; AI tools are creating images explicitly to be consumed, vs a search engine is basically just an index, and only shows the image in so far as it needs to make it discoverable. So three of the four tests for fair use seem clearly against AI image generation, at least to me. The only test that possibly goes in favor of AI is the amount or substantiality of copying, but AIs can easily reproduce images, or if not entire images, other substantial subsets of a composition. I just don't get how these could possibly be fair use.

gojomo 4y ago
As I see it, 3 of the 4 tests are strongly in OpenAI's favor; the 'market effect' is mixed. (1) The use is highly transformative; (2) the images used were offered to the anonymous browsing public (with watermarks); (3) the end effect of training will only retain a tiny spectral distilled essence of any individual photo, or even a giant source corpus; (4) there's a potential risk of market competition from the ultimate model output, for some uses – but that's also the most 'transformative' aspect. Getty et al could potentially just ask creators of such models not to include their images – perhaps by blocking their crawling 'User-Agent' – and it might not make any real difference in the models.
- gnopgnip 4y ago
  These AI generated images are directly competing with stock images. AI tools are selling images to blogs and other customers that often would purchase stock images instead. The "character of use" is not in favor of dall-e, it is a commercial use. Copyright law does not require getty to block a user agents or ask them not to include their images. Another issue here is that removing copyright management info like a watermark is a violation of the DMCA, separate from fair use or copyright infringement. These cases have statutory damages and attorneys fees awarded.
  - gojomo 4y ago
    Whether something is directly competing for the same business would have to be evidenced, and copyright doesn't mean protection from all possible competition - it's just one factor weighed. And fair use protects many commercial uses, too, depending on proportion/character-of-original/etc. But also, none of these images are direct, or even necessarily subtantial, "copies" of other images. The generator learned from other images – the same as any human artist might. No watermark has been removed; the bigger issue may be that the spectral watermark violates a trademark. (But, I doubt consumers are likely to be confused.)
    - prox 4y ago
      It’s going to be interesting what the stock companies will do. Maybe they will make their own Image Generator. Perhaps we will see a case based on the new factor that is AI. An AI is not artist; they can’t be conflated. A decent artists can churn out maybe 5-10 works if he is productive. AI can churn out by the hundreds or thousands if needed. The process also isn’t the same. Anyway it will be interesting to watch this space.
      - rasz 4y ago
        AI generated images cant be copyrighted.
        gojomo 4y ago
        Given the iterative contribution of a artistically-talented human prompter, I'm not sure that precedent – set by the Copyright Office in the US, rather than a clear statute or court decision – will hold up. A court might decide differently, or a statutory update could overrule the copyright office, especially in cases where an individual output is the mix of human & AI effort.
    - wettico 4y ago
      "The generator learned from other images – the same as any human artist might." A lot of people seem to make this comparison, but I don't think it's fair. It's wrong. A computer is capable of ingesting/processing and "learning" from images at a rate no human can possibly come close to matching. To elaborate, it is not actually learning in the way we normally think of it, as its "brain" is completely different from a human's brain. It is doing something entirely different that should have its own word. Human artists learn from other human artists' work. An AI does something else. It's also worth noting that the art the AI was trained on was posted online when the technology didn't exist (or if it did in some form it was not in the state it is in now). So an artist having posted their art online for public consumption can't be equated with somehow consenting to its consumption by a web scraper / AI.
- saurik 4y ago
  I'm still not seeing the "transformative" argument: the point of transformation isn't "it is in a different format" but (to quote Wikipedia, which is, of course, dumb... I'm sorry ;P) where one "builds on a copyrighted work in a different manner or for a different purpose from the original". The reason a search engine thumbnail is transformative isn't because it has been transformed to make it smaller... it is because the purpose of the resulting use of the image is somewhat unrelated to the use the original author was going for when they made the original image. At issue here is then that, rather than using an original image from Getty Images, someone decided to take all of the images from Getty Images and churn them through some algorithm that generated an image that directly competed with the original images from Getty Images. So like, sure: if you really only narrowly want to talk about OpenAI, what they are themselves doing (training and distributing a model) might potentially be legal, but the people using the result would seem to be in serious hot water... oh, and actually, I think they run it all a service, don't they? So no: I don't even think that defense works, as OpenAI is in some sense not even selling a model, they are merely directly competing with Getty Images to provide sell photos to people.
  - gojomo 4y ago
    Autogenerated, often fantastical, never-seen-before AI images strike me as a paradigmatically 'transformative' use. It's novel. It's shocking to many practicioners how flexible & high-quality the images can be. It will unlock all sorts of new downstream creation. The representation that feeds the generation is statistical, even to the point of being plausibly factual: these things/people/places/concepts can be abstractly represented as the balanced weights inside the model. And under US law, facts aren't copyrightable. I could see a case being factored as: (1) the scraping/training/ephemeralization itself involves the usual copying of downloading/locally-processing images, like indexing, but all those 'copying' steps are fair-use protected, as science/transformative/de-minimus/whatever; (2) any subsequent new-image generation no longer involves any 'copying', only new creation from distilled patterns of the entire training corpus, in which Getty retains no 'trace tincture' of copyright-control. So there's no specific acts of illegal copying to penalize. Also, a human artist would be allowed to review related Getty/etc preview images, free on the web, to familiarize themself with a person or setting, before drawing it themself, with their own flair – as long as they don't copy it substantially. Why wouldn't an AI artist?
- bryanrasmussen 4y ago
  aside from if it is not copyrighted the image, the Getty watermark usage probably might have a bunch of issues.
- sokoloff 4y ago
  I have a hard time agreeing with 3, given https://ibb.co/DzGR063 https://ibb.co/DzGR063
hammock 4y ago
> Search engines don't create market harm for a work because they don't compete with it. In fact, they do the opposite: they advertise the work, making it more accessible and increasing exposure. AMP, snippets, Knowledge Base and in-app browsers would like to have a word with you
- SquareWheel 4y ago
  Knowledge Base I grant you, but snippets are a crucial feature to trust a result is correct before clicking through. AMP is completely unrelated so I'm not sure why you mention it. Website owners have to create a specific version of their own site for AMP to even work.

gojomo 4y ago

As I see it, 3 of the 4 tests are strongly in OpenAI's favor; the 'market effect' is mixed. (1) The use is highly transformative; (2) the images used were offered to the anonymous browsing public (with watermarks); (3) the end effect of training will only retain a tiny spectral distilled essence of any individual photo, or even a giant source corpus; (4) there's a potential risk of market competition from the ultimate model output, for some uses – but that's also the most 'transformative' aspect. Getty et al could potentially just ask creators of such models not to include their images – perhaps by blocking their crawling 'User-Agent' – and it might not make any real difference in the models.

gnopgnip 4y ago
These AI generated images are directly competing with stock images. AI tools are selling images to blogs and other customers that often would purchase stock images instead. The "character of use" is not in favor of dall-e, it is a commercial use. Copyright law does not require getty to block a user agents or ask them not to include their images. Another issue here is that removing copyright management info like a watermark is a violation of the DMCA, separate from fair use or copyright infringement. These cases have statutory damages and attorneys fees awarded.
- gojomo 4y ago
  Whether something is directly competing for the same business would have to be evidenced, and copyright doesn't mean protection from all possible competition - it's just one factor weighed. And fair use protects many commercial uses, too, depending on proportion/character-of-original/etc. But also, none of these images are direct, or even necessarily subtantial, "copies" of other images. The generator learned from other images – the same as any human artist might. No watermark has been removed; the bigger issue may be that the spectral watermark violates a trademark. (But, I doubt consumers are likely to be confused.)
  - prox 4y ago
    It’s going to be interesting what the stock companies will do. Maybe they will make their own Image Generator. Perhaps we will see a case based on the new factor that is AI. An AI is not artist; they can’t be conflated. A decent artists can churn out maybe 5-10 works if he is productive. AI can churn out by the hundreds or thousands if needed. The process also isn’t the same. Anyway it will be interesting to watch this space.
    - rasz 4y ago
      AI generated images cant be copyrighted.
      - gojomo 4y ago
        Given the iterative contribution of a artistically-talented human prompter, I'm not sure that precedent – set by the Copyright Office in the US, rather than a clear statute or court decision – will hold up. A court might decide differently, or a statutory update could overrule the copyright office, especially in cases where an individual output is the mix of human & AI effort.
  - wettico 4y ago
    "The generator learned from other images – the same as any human artist might." A lot of people seem to make this comparison, but I don't think it's fair. It's wrong. A computer is capable of ingesting/processing and "learning" from images at a rate no human can possibly come close to matching. To elaborate, it is not actually learning in the way we normally think of it, as its "brain" is completely different from a human's brain. It is doing something entirely different that should have its own word. Human artists learn from other human artists' work. An AI does something else. It's also worth noting that the art the AI was trained on was posted online when the technology didn't exist (or if it did in some form it was not in the state it is in now). So an artist having posted their art online for public consumption can't be equated with somehow consenting to its consumption by a web scraper / AI.
saurik 4y ago
I'm still not seeing the "transformative" argument: the point of transformation isn't "it is in a different format" but (to quote Wikipedia, which is, of course, dumb... I'm sorry ;P) where one "builds on a copyrighted work in a different manner or for a different purpose from the original". The reason a search engine thumbnail is transformative isn't because it has been transformed to make it smaller... it is because the purpose of the resulting use of the image is somewhat unrelated to the use the original author was going for when they made the original image. At issue here is then that, rather than using an original image from Getty Images, someone decided to take all of the images from Getty Images and churn them through some algorithm that generated an image that directly competed with the original images from Getty Images. So like, sure: if you really only narrowly want to talk about OpenAI, what they are themselves doing (training and distributing a model) might potentially be legal, but the people using the result would seem to be in serious hot water... oh, and actually, I think they run it all a service, don't they? So no: I don't even think that defense works, as OpenAI is in some sense not even selling a model, they are merely directly competing with Getty Images to provide sell photos to people.
- gojomo 4y ago
  Autogenerated, often fantastical, never-seen-before AI images strike me as a paradigmatically 'transformative' use. It's novel. It's shocking to many practicioners how flexible & high-quality the images can be. It will unlock all sorts of new downstream creation. The representation that feeds the generation is statistical, even to the point of being plausibly factual: these things/people/places/concepts can be abstractly represented as the balanced weights inside the model. And under US law, facts aren't copyrightable. I could see a case being factored as: (1) the scraping/training/ephemeralization itself involves the usual copying of downloading/locally-processing images, like indexing, but all those 'copying' steps are fair-use protected, as science/transformative/de-minimus/whatever; (2) any subsequent new-image generation no longer involves any 'copying', only new creation from distilled patterns of the entire training corpus, in which Getty retains no 'trace tincture' of copyright-control. So there's no specific acts of illegal copying to penalize. Also, a human artist would be allowed to review related Getty/etc preview images, free on the web, to familiarize themself with a person or setting, before drawing it themself, with their own flair – as long as they don't copy it substantially. Why wouldn't an AI artist?
bryanrasmussen 4y ago
aside from if it is not copyrighted the image, the Getty watermark usage probably might have a bunch of issues.
sokoloff 4y ago
I have a hard time agreeing with 3, given https://ibb.co/DzGR063 https://ibb.co/DzGR063

hammock 4y ago

> Search engines don't create market harm for a work because they don't compete with it. In fact, they do the opposite: they advertise the work, making it more accessible and increasing exposure. AMP, snippets, Knowledge Base and in-app browsers would like to have a word with you

SquareWheel 4y ago
Knowledge Base I grant you, but snippets are a crucial feature to trust a result is correct before clicking through. AMP is completely unrelated so I'm not sure why you mention it. Website owners have to create a specific version of their own site for AMP to even work.