4 ms·

There's no existing legal doctrine around "generators" and "aggregators" but there is around "commercially significant non-infringing use". Something like what

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).
  - km3r 4y ago
    I can put a similarly simple "prompt" into Ableton to create a simple drum loop, then copyright the resulting song. What makes AI significantly different then an audio rendering engine such that only one can be copyrightable?
    - jacquesm 4y ago
      That the one uses generic sounds as input and the other uses specific art as input.
      - km3r 4y ago
        No, the input for Ableton is a simple set of commands for how to control the synths to create the beat, the input for AI is text, the "specific art" maybe have created the model, but the model won't do anything without a prompt. It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itself is infringing.
        jacquesm 4y ago
        > It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itself is infringing. That's fair. But if you would sample Phil Collins (just to name one famous drummer) to create a Phil Collins sample pack and you'd then create your own drum loop with it that wouldn't mean you can't expect some expensive mail incoming. And it will likely stick. The easiest way to create original art without having this shadow hanging over you would be to make your own sounds, use licensed sounds or to attempt to license the sounds you want to use (but that are not available for public use). Any other path is likely going to be a legal minefield and may lead to you losing your rep and a bunch of $. There are plenty of examples of people that did this, went to court and lost.
        4y ago
- williamcotton 4y ago
  > 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. No, it's not at all. This court case is about: Plaintiffs Sarah Andersen, Kelly McKernan, and Karla Ortiz (“Plaintiffs”), on behalf of themselves and all others similarly situated, bring this Class Action Complaint (the “Complaint”) against Defendants Stability AI Ltd. and Stability AI, Inc. (collectively “Stability”); Midjourney, Inc. (“Midjourney”); and DeviantArt, Inc. (“DeviantArt”) (all collectively “Defendants”) for: 1.) direct and vicarious copyright infringement under 17 U.S.C. § 501; 2.) violation of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201–1205 (the “DMCA”); 3.) violation of Plaintiffs’ statutory and common law rights of publicity, Cal. Civ. Code section 3344; 4.) violation of Unfair Competition law, Cal. Bus. & Prof. Code §§ 17200, et seq.; 5.) and declaratory relief. So for each of those complaints the defense needs to establish that their actions fit a different narrative, one that is legally coherent and against the claims for damages. So for copyright infringement they are going to go for a fair use defense. I'm sure they won't only reference VCRs and Google Books! I'm certain they won't talk about "aggregators" and "generators" because this is not a Supreme Court opinion. They're going to use the established legal doctrines. I'm sure that their lawyers have plenty of other relevant case law at their disposal. As for DMCA and rights of publicity, this seems to be what motivated Stability AI to adhere to "takedown requests" as they probably had some lawyer whispering in their ear that they probably don't want to spend the time and money testing this in court if it doesn't really impact the marketability of their tool. I haven't ready anything about the Unfair Competition law in California.
  - jacquesm 4y ago
    I've been the plaintiff in a case like this in Dutch court where the counterparty first tried to argue that since my code is 'visible to all' a fair use exemption should be granted, when that fell through they tried to argue that they did not take my code from my site but from another site which presumably took it from my site and which didn't have any attribution so that they were free to use it. Then that fell through too[1]. Then they were left with no defense at all and I ended up being awarded pretty much all of their online property. Judges are far from stupid and a fair use defense requires that you primarily acknowledge that you are in fact infringing but that you feel that because it is fair use you should be allowed to continue to do so. This is a pretty risky strategy, especially when you are a party that is in the business of hosting other people's creative content. We'll see how it all pans out, personally I think their position would be much, much stronger if they had bothered to obtain consent, even an opt-out email that if not responded to within say 3 months would count as consent (and no: obviously that's not the same but we're comparing the relative size of fig-leaves here). As it stands I don't see how their 'fair use defense' will hold together under scrutiny without opening a much bigger can of worms. [1] They had to admit infringement because of their first line of defense, then the fall-back required them to point at the site where they presumably took the code from which they could not. Don't interrupt your opponent when they are making mistakes.

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).
- km3r 4y ago
  I can put a similarly simple "prompt" into Ableton to create a simple drum loop, then copyright the resulting song. What makes AI significantly different then an audio rendering engine such that only one can be copyrightable?
  - jacquesm 4y ago
    That the one uses generic sounds as input and the other uses specific art as input.
    - km3r 4y ago
      No, the input for Ableton is a simple set of commands for how to control the synths to create the beat, the input for AI is text, the "specific art" maybe have created the model, but the model won't do anything without a prompt. It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itself is infringing.
      - jacquesm 4y ago
        > It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itself is infringing. That's fair. But if you would sample Phil Collins (just to name one famous drummer) to create a Phil Collins sample pack and you'd then create your own drum loop with it that wouldn't mean you can't expect some expensive mail incoming. And it will likely stick. The easiest way to create original art without having this shadow hanging over you would be to make your own sounds, use licensed sounds or to attempt to license the sounds you want to use (but that are not available for public use). Any other path is likely going to be a legal minefield and may lead to you losing your rep and a bunch of $. There are plenty of examples of people that did this, went to court and lost.
        4y ago
williamcotton 4y ago
> 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. No, it's not at all. This court case is about: Plaintiffs Sarah Andersen, Kelly McKernan, and Karla Ortiz (“Plaintiffs”), on behalf of themselves and all others similarly situated, bring this Class Action Complaint (the “Complaint”) against Defendants Stability AI Ltd. and Stability AI, Inc. (collectively “Stability”); Midjourney, Inc. (“Midjourney”); and DeviantArt, Inc. (“DeviantArt”) (all collectively “Defendants”) for: 1.) direct and vicarious copyright infringement under 17 U.S.C. § 501; 2.) violation of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201–1205 (the “DMCA”); 3.) violation of Plaintiffs’ statutory and common law rights of publicity, Cal. Civ. Code section 3344; 4.) violation of Unfair Competition law, Cal. Bus. & Prof. Code §§ 17200, et seq.; 5.) and declaratory relief. So for each of those complaints the defense needs to establish that their actions fit a different narrative, one that is legally coherent and against the claims for damages. So for copyright infringement they are going to go for a fair use defense. I'm sure they won't only reference VCRs and Google Books! I'm certain they won't talk about "aggregators" and "generators" because this is not a Supreme Court opinion. They're going to use the established legal doctrines. I'm sure that their lawyers have plenty of other relevant case law at their disposal. As for DMCA and rights of publicity, this seems to be what motivated Stability AI to adhere to "takedown requests" as they probably had some lawyer whispering in their ear that they probably don't want to spend the time and money testing this in court if it doesn't really impact the marketability of their tool. I haven't ready anything about the Unfair Competition law in California.
- jacquesm 4y ago
  I've been the plaintiff in a case like this in Dutch court where the counterparty first tried to argue that since my code is 'visible to all' a fair use exemption should be granted, when that fell through they tried to argue that they did not take my code from my site but from another site which presumably took it from my site and which didn't have any attribution so that they were free to use it. Then that fell through too[1]. Then they were left with no defense at all and I ended up being awarded pretty much all of their online property. Judges are far from stupid and a fair use defense requires that you primarily acknowledge that you are in fact infringing but that you feel that because it is fair use you should be allowed to continue to do so. This is a pretty risky strategy, especially when you are a party that is in the business of hosting other people's creative content. We'll see how it all pans out, personally I think their position would be much, much stronger if they had bothered to obtain consent, even an opt-out email that if not responded to within say 3 months would count as consent (and no: obviously that's not the same but we're comparing the relative size of fig-leaves here). As it stands I don't see how their 'fair use defense' will hold together under scrutiny without opening a much bigger can of worms. [1] They had to admit infringement because of their first line of defense, then the fall-back required them to point at the site where they presumably took the code from which they could not. Don't interrupt your opponent when they are making mistakes.