4 ms·

> If the image is freely viewable (say you can browse to it), and you just look at it, are you violating any rights? This isn't the kind of question that the l

> If the image is freely viewable (say you can browse to it), and you just look at it, are you violating any rights? This isn't the kind of question that the lawyers of the defendants are going to ask the court. They'll more likely ask if it isn't clearly fair use similar to Sony v Universal and Authors Guild v Google and then present evidence of significant non-infringing commercial use. > It seems that violation would only come if you would use the model to produce images that are derivative of that original image, the same way a counterfeiter would make a copy of it. Have the skill to copy is not the same as actually copying. Yeah, that's basically how the courts see it these days although for a different reason. They don't ask questions about skills or work or anything like that. They ask questions like, "is this supposed infringing work a replacement in the market for the plaintiff's work?". The deeper questions about what the hell anyone meant by the words in the Constitution about Copyright wait for the highest courts to get involved, which is where we got this nice division between tools and what the tools are used for which allows for innovative fair use of copying other people's protected works with tools like VCRs, online book search and large language models.

BeefWellington 4y ago
> Authors Guild v Google and then present evidence of significant non-infringing commercial use. The problem as I understand it is in all the likely "precedent" cases for this, what was being done with the scraped data was in some identifiable way different than the purpose of the source data itself. Authors Guild v Google for instance, the argument was that Google wasn't reproducing whole texts, it just used that data to make the texts searchable. Meaning the purpose of the consumption of the text by Google was to essentially make a searchable index, rather than to reproduce a book, and thus that isn't harming the authors. In this case, it would seem a very key difference is that this is Art being consumed and Art being produced, with no different purpose.
- williamcotton 4y ago
  > In this case, it would seem a very key difference is that this is Art being consumed and Art being produced, with no different purpose. Sure, I mean, anyone can sit on the sidelines and imagine any sort of fantasy legal doctrines. The one you’re imagining would have the courts deciding the purpose of art works. In this case an example is easy. If someone uses Stable Diffusion to remove a person from the background of an image they are clearly using the tool for a separate purpose than copying Sarah Anderson’s works and making competing desk calendars. But I guess your silly argument is that the doctored photograph is a “picture” and Sarah Anderson made “pictures” and all pictures have the purpose of “being looked at” and you want courts to decide this based on this reasoning?
jacquesm 4y ago
> They'll more likely ask if it isn't clearly fair use similar to Sony v Universal and Authors Guild v Google and then present evidence of significant non-infringing commercial use. Those were not cases about 'generators' but about 'aggregators', a completely different class of application.
- williamcotton 4y ago
  There's no existing legal doctrine around "generators" and "aggregators" but there is around "commercially significant non-infringing use". Something like what you're saying would need to be established by the higher courts.
  - jacquesm 4y ago
    Of course there is. You can't infringe without publishing a work and to pass off the work of others as a new creation because it has been shredded and then sewn back together again . Those cases hinged on republishing works or significant parts of works as themselves, they weren't trying to pass them off as new, original works in their own right. And this is exactly what this court case is about, whether or not Stable Diffusion ultimately is just another - complex - form of mechanical transformation or whether it creates original work. In my opinion the only things all of these companies get wrong is that they (1) failed to obtain consent from the suppliers of the inputs to their models and (2) that they themselves have not contributed even a little bit of the input data. The ultimate laugh test is whether or not these companies themselves slap (C) signs on everything and are willing to litigate when they believe their rights are the ones that are infringed upon. I hope for an outcome where opt-in will become the norm, that would seem to be a reasonable middle ground. Finally, note that copyright is not a local concept but a global one - and has been for a long time - and that anything that happens on that front will have to ratified in a different forum than some US court.
    - ROTMetro 4y ago
      I posit that none of these works will be copyrightable because to be copyrightable you need at least an 'anonymous artist' to assign their copyright to a company, and there is no 'anonymous artist' in these scenarios (a prompt writer can not be considered an anonymous artist, at most I guess they could try to copyright the language in their prompt. But the output, nope. Doesn't meet the requirements for copyright).

BeefWellington 4y ago

> Authors Guild v Google and then present evidence of significant non-infringing commercial use. The problem as I understand it is in all the likely "precedent" cases for this, what was being done with the scraped data was in some identifiable way different than the purpose of the source data itself. Authors Guild v Google for instance, the argument was that Google wasn't reproducing whole texts, it just used that data to make the texts searchable. Meaning the purpose of the consumption of the text by Google was to essentially make a searchable index, rather than to reproduce a book, and thus that isn't harming the authors. In this case, it would seem a very key difference is that this is Art being consumed and Art being produced, with no different purpose.

williamcotton 4y ago
> In this case, it would seem a very key difference is that this is Art being consumed and Art being produced, with no different purpose. Sure, I mean, anyone can sit on the sidelines and imagine any sort of fantasy legal doctrines. The one you’re imagining would have the courts deciding the purpose of art works. In this case an example is easy. If someone uses Stable Diffusion to remove a person from the background of an image they are clearly using the tool for a separate purpose than copying Sarah Anderson’s works and making competing desk calendars. But I guess your silly argument is that the doctored photograph is a “picture” and Sarah Anderson made “pictures” and all pictures have the purpose of “being looked at” and you want courts to decide this based on this reasoning?

jacquesm 4y ago

> They'll more likely ask if it isn't clearly fair use similar to Sony v Universal and Authors Guild v Google and then present evidence of significant non-infringing commercial use. Those were not cases about 'generators' but about 'aggregators', a completely different class of application.

williamcotton 4y ago
There's no existing legal doctrine around "generators" and "aggregators" but there is around "commercially significant non-infringing use". Something like what you're saying would need to be established by the higher courts.
- jacquesm 4y ago
  Of course there is. You can't infringe without publishing a work and to pass off the work of others as a new creation because it has been shredded and then sewn back together again . Those cases hinged on republishing works or significant parts of works as themselves, they weren't trying to pass them off as new, original works in their own right. And this is exactly what this court case is about, whether or not Stable Diffusion ultimately is just another - complex - form of mechanical transformation or whether it creates original work. In my opinion the only things all of these companies get wrong is that they (1) failed to obtain consent from the suppliers of the inputs to their models and (2) that they themselves have not contributed even a little bit of the input data. The ultimate laugh test is whether or not these companies themselves slap (C) signs on everything and are willing to litigate when they believe their rights are the ones that are infringed upon. I hope for an outcome where opt-in will become the norm, that would seem to be a reasonable middle ground. Finally, note that copyright is not a local concept but a global one - and has been for a long time - and that anything that happens on that front will have to ratified in a different forum than some US court.
  - ROTMetro 4y ago
    I posit that none of these works will be copyrightable because to be copyrightable you need at least an 'anonymous artist' to assign their copyright to a company, and there is no 'anonymous artist' in these scenarios (a prompt writer can not be considered an anonymous artist, at most I guess they could try to copyright the language in their prompt. But the output, nope. Doesn't meet the requirements for copyright).