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Your argument would make Google illegal -- they are copying and indexing other people's content (including images, as it happens), to make a profit, on the back

Your argument would make Google illegal -- they are copying and indexing other people's content (including images, as it happens), to make a profit, on the backs of other people's work, without a license or permission. But the courts have already ruled that this is not the case. Your argument is based on what makes sense to you, but not seemingly informed by actual copyright law. It is harder and harder to get "what makes sense to me" to be consistent as digital technology changes the landscape, that is true. Not as a matter of law, but just your own moral sense, I'm curious if you think web-crawling for indexes for web searches (including image searches) ought to be legal. And if so, what's the difference?

williamcotton 4y ago
As my wife keeps pointing out to me when I incessantly point out that “people on the internet are wrong about copyright”… who cares? The courts certainly don’t.
notahacker 4y ago
Courts have ruled against Google caching and displaying content in search timelines before. Google vs NewsCorp ultimately ended with Google paying NewsCorp license fees to index its content! But most people haven't sued because they actually want to be indexed by Google (and Googlebot respects robots.txt if they don't) But Google search does not use images for the same purpose, and does not sell access to the images, and at present most AI models don't offer an opt-out, so the copyright implications are different (most logically, indexing and displaying an image with tacit permission and a backlink on an ad-supported web page is not the same as selling derivative works based on an image). By extension, they are not necessarily the same for StableDiffusion as they are for DALL-E, or for LLM models as they are for generative image models or licensed codebases, and copyright law has never been and probably never will be applied evenly across different jurisdictions, mediums and even individual cases.
- jrochkind1 4y ago
  I can't find any lawsuit between News Corp and Google. In what country? Google did agree to some kind of paid agreement with News Corp in 2001, according to news coverage at the time in part to avoid the threat of legislation in Australia that might have required Google to pay for content to index it. (No such legislation was passed in Australia, let alone the USA). One USA case from back in the day that ruled that Google Indexing (and caching) was fair use, was Field v. Google, from 2006. http://www.eff.org/IP/blake_v_google/google_nevada_order.pdf http://www.eff.org/IP/blake_v_google/google_nevada_order.pdf Another USA case that ruled that Google Image indexing, and using thumbnails in search results, was fair use was Perfect 10 v. Google (2007). https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2010%20Abridged.pdf https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2... It's true it hasn't been super extensively litigated, and never made it to the supreme court. Perhaps because in fairly short order content owners realized they actually wanted to be indexed in google. And because Google (if not everyone) would respect a robots.txt to keep them out if they didn't. The Google Books case is also probably relevant. (Which Google also, eventually, won). There are other cases not specifically involving Google that are relevant, one for example with an index of tv news broadcasts that provided keyword search and let users view clips. The court ruled this was fair use too. Fox News v. TVEYES, Inc., 43 F. Supp. 3d 379 (S.D. N.Y. 2014). I don't think I can find any USA cases that suggest indexing for a search engine would be a copyright violation and not fair use. Let alone against Google specifically. When you say courts have ruled against Google, can you cite any particular cases? Maybe they were from other jurisdictions than USA? Or cases relevant to this present topic even if not about search engines? And yet, GP's description applies just as much to google indexing images. Google makes money off of a search index that copies copyrighted content without explicit permission or compensation. Still, you are right that other factors may be different; it requires an argument that goes beyond GP's, and is actually based on the law. In the USA, where OP suit is filed, I am not a lawyer and this isn't legal advice, but I think these image AI's are going to have a pretty good case for fair use, even if it what they did counts as "making a copy" (which I think isn't totally clear). It is a very transformative use. I think convincing a court that the AI's will result in lost revenue (for the specific works used as training data, not in general for the field) would probably be necessary, but not sufficient, to overcome a fair use defense -- and I don't think that argument is even a slam dunk. And is still just one factor in fair use; the transformative nature of the use has lately been given a lot of weight in the law, and seems pretty overwhelming here. Of course, sometimes courts do surprising things.

williamcotton 4y ago

As my wife keeps pointing out to me when I incessantly point out that “people on the internet are wrong about copyright”… who cares? The courts certainly don’t.

notahacker 4y ago

Courts have ruled against Google caching and displaying content in search timelines before. Google vs NewsCorp ultimately ended with Google paying NewsCorp license fees to index its content! But most people haven't sued because they actually want to be indexed by Google (and Googlebot respects robots.txt if they don't) But Google search does not use images for the same purpose, and does not sell access to the images, and at present most AI models don't offer an opt-out, so the copyright implications are different (most logically, indexing and displaying an image with tacit permission and a backlink on an ad-supported web page is not the same as selling derivative works based on an image). By extension, they are not necessarily the same for StableDiffusion as they are for DALL-E, or for LLM models as they are for generative image models or licensed codebases, and copyright law has never been and probably never will be applied evenly across different jurisdictions, mediums and even individual cases.

jrochkind1 4y ago
I can't find any lawsuit between News Corp and Google. In what country? Google did agree to some kind of paid agreement with News Corp in 2001, according to news coverage at the time in part to avoid the threat of legislation in Australia that might have required Google to pay for content to index it. (No such legislation was passed in Australia, let alone the USA). One USA case from back in the day that ruled that Google Indexing (and caching) was fair use, was Field v. Google, from 2006. http://www.eff.org/IP/blake_v_google/google_nevada_order.pdf http://www.eff.org/IP/blake_v_google/google_nevada_order.pdf Another USA case that ruled that Google Image indexing, and using thumbnails in search results, was fair use was Perfect 10 v. Google (2007). https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2010%20Abridged.pdf https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2... It's true it hasn't been super extensively litigated, and never made it to the supreme court. Perhaps because in fairly short order content owners realized they actually wanted to be indexed in google. And because Google (if not everyone) would respect a robots.txt to keep them out if they didn't. The Google Books case is also probably relevant. (Which Google also, eventually, won). There are other cases not specifically involving Google that are relevant, one for example with an index of tv news broadcasts that provided keyword search and let users view clips. The court ruled this was fair use too. Fox News v. TVEYES, Inc., 43 F. Supp. 3d 379 (S.D. N.Y. 2014). I don't think I can find any USA cases that suggest indexing for a search engine would be a copyright violation and not fair use. Let alone against Google specifically. When you say courts have ruled against Google, can you cite any particular cases? Maybe they were from other jurisdictions than USA? Or cases relevant to this present topic even if not about search engines? And yet, GP's description applies just as much to google indexing images. Google makes money off of a search index that copies copyrighted content without explicit permission or compensation. Still, you are right that other factors may be different; it requires an argument that goes beyond GP's, and is actually based on the law. In the USA, where OP suit is filed, I am not a lawyer and this isn't legal advice, but I think these image AI's are going to have a pretty good case for fair use, even if it what they did counts as "making a copy" (which I think isn't totally clear). It is a very transformative use. I think convincing a court that the AI's will result in lost revenue (for the specific works used as training data, not in general for the field) would probably be necessary, but not sufficient, to overcome a fair use defense -- and I don't think that argument is even a slam dunk. And is still just one factor in fair use; the transformative nature of the use has lately been given a lot of weight in the law, and seems pretty overwhelming here. Of course, sometimes courts do surprising things.