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I think it's a great time to explain why this won't hit AI art such as Stable Diffusion, even if GitHub loses this case. The crux of the lawsuit's argument is

I think it's a great time to explain why this won't hit AI art such as Stable Diffusion, even if GitHub loses this case. The crux of the lawsuit's argument is that the AI unlawfully outputs copyrighted material. This is evident in many tests with many people here and on Twitter even getting verbatim comments out of it. AI art, in the other hand, is not capable of outputting the images from its training set, as it's not a collage-maker, but an artificial brain with a paintbrush and virtual hand.

jrochkind1 4y ago
Eh... I don't know. It sounds to me like you are saying because the code example outputs exact lines, it's a copyright violation; but the image AI's necessarily don't output exact copies of even portions of pre-existing images, that's not how they work. But I don't think copyright on visual images actually works like that, that it needs to be an exact copy to infringe. If I draw my own pictures of Mickey Mouse and Goofy having a tea party, it's still a copyright infringement if it is substantially similar to copyright depictions of mickey mouse and goofy. (subject to fair use defenses; I'm allowed to do what would otherwise have been a copyright infringement if it meets a fair use defense, which is also not cut and dry, but if it's, say, a parody it's likely to be fair use. There is probably a legal argument that Copilot is fair use.... the more money Github makes on it, the harder it is though, but making money off something is not relevant to whether it's a copyright violation in the first place, but is to fair use defense). (yes, it might also be a trademark infringement; but there's a reason Disney is so concerned with copyright on mickey expiring, and it's not that they think there's lots of money to be spent on selling copies of the specific Steamboat Willy movie...) > There is actually no percentage by which you must change an image to avoid copyright infringement. While some say that you have to change 10-30% of a copyrighted work to avoid infringement, that has been proven to be a myth. The standard is whether the artworks are “substantially similar,” or a “substantial part” has been changed, which of course is subjective. https://www.epgdlaw.com/how-can-my-artwork-steer-clear-of-copyright-infringement/ https://www.epgdlaw.com/how-can-my-artwork-steer-clear-of-co... I think Stable Diffusion etc are quite capable of creating art that is "substantially similar" to pre-existing art.
- EMIRELADERO 4y ago
  I believe fair use is the way to go then. SD would definitely be so, in my opinion.
  - jrochkind1 4y ago
    For those curious about the standards for fair sue in US copyright law, and how they have been considered in previous caess, here's one legal overview: https://ogc.harvard.edu/pages/copyright-and-fair-use https://ogc.harvard.edu/pages/copyright-and-fair-use This AI re-mixing stuff is so new, I think few legal observers would say they could definitely predict what the courts will do with it. Nobody really knew how the Google Books case, for instance, was going to go until it went.
PuddleCheese 4y ago
These models can actually output images that can be extremely close to the material present in training models: - https://i.imgur.com/VikPFDT.png https://i.imgur.com/VikPFDT.png I also don't know if I would anthropomorphize ML to that degree. It's a poor metaphor and isn't really analogous to a human brain, especially considering our current understanding, or lack thereof, of the brain, and even the limited insight we have into how some of these models work from the people who work on them.
kmnc 4y ago
I don’t understand this argument… if image AI gets good enough then generating exact copies of its training model seems trivial.
solomatov 4y ago
IMO, the case is exactly the same for copilot and generative models for images. That's why it's so important to have some precedent as a guide for future products. P.S. I am not a lawyer.
az226 4y ago
https://arstechnica.com/information-technology/2022/09/better-than-jpeg-researcher-discovers-that-stable-diffusion-can-compress-images/ https://arstechnica.com/information-technology/2022/09/bette... Want to say that again?

jrochkind1 4y ago

Eh... I don't know. It sounds to me like you are saying because the code example outputs exact lines, it's a copyright violation; but the image AI's necessarily don't output exact copies of even portions of pre-existing images, that's not how they work. But I don't think copyright on visual images actually works like that, that it needs to be an exact copy to infringe. If I draw my own pictures of Mickey Mouse and Goofy having a tea party, it's still a copyright infringement if it is substantially similar to copyright depictions of mickey mouse and goofy. (subject to fair use defenses; I'm allowed to do what would otherwise have been a copyright infringement if it meets a fair use defense, which is also not cut and dry, but if it's, say, a parody it's likely to be fair use. There is probably a legal argument that Copilot is fair use.... the more money Github makes on it, the harder it is though, but making money off something is not relevant to whether it's a copyright violation in the first place, but is to fair use defense). (yes, it might also be a trademark infringement; but there's a reason Disney is so concerned with copyright on mickey expiring, and it's not that they think there's lots of money to be spent on selling copies of the specific Steamboat Willy movie...) > There is actually no percentage by which you must change an image to avoid copyright infringement. While some say that you have to change 10-30% of a copyrighted work to avoid infringement, that has been proven to be a myth. The standard is whether the artworks are “substantially similar,” or a “substantial part” has been changed, which of course is subjective. https://www.epgdlaw.com/how-can-my-artwork-steer-clear-of-copyright-infringement/ https://www.epgdlaw.com/how-can-my-artwork-steer-clear-of-co... I think Stable Diffusion etc are quite capable of creating art that is "substantially similar" to pre-existing art.

EMIRELADERO 4y ago
I believe fair use is the way to go then. SD would definitely be so, in my opinion.
- jrochkind1 4y ago
  For those curious about the standards for fair sue in US copyright law, and how they have been considered in previous caess, here's one legal overview: https://ogc.harvard.edu/pages/copyright-and-fair-use https://ogc.harvard.edu/pages/copyright-and-fair-use This AI re-mixing stuff is so new, I think few legal observers would say they could definitely predict what the courts will do with it. Nobody really knew how the Google Books case, for instance, was going to go until it went.

PuddleCheese 4y ago

These models can actually output images that can be extremely close to the material present in training models: - https://i.imgur.com/VikPFDT.png https://i.imgur.com/VikPFDT.png I also don't know if I would anthropomorphize ML to that degree. It's a poor metaphor and isn't really analogous to a human brain, especially considering our current understanding, or lack thereof, of the brain, and even the limited insight we have into how some of these models work from the people who work on them.

kmnc 4y ago

I don’t understand this argument… if image AI gets good enough then generating exact copies of its training model seems trivial.

solomatov 4y ago

IMO, the case is exactly the same for copilot and generative models for images. That's why it's so important to have some precedent as a guide for future products. P.S. I am not a lawyer.

az226 4y ago

https://arstechnica.com/information-technology/2022/09/better-than-jpeg-researcher-discovers-that-stable-diffusion-can-compress-images/ https://arstechnica.com/information-technology/2022/09/bette... Want to say that again?