4 ms·

> 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

> 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.
- williamcotton 4y ago
  What makes "commercially significant non-infringing use" such a great doctrine is that it lets there be some objective measurement of how generally useful a given practice is towards the benefit of the public good. The doctrine does this by establishing that the tool can be used for a myriad of ways that in no way directly compete with the original work in the marketplace. For example, when Stable Diffusion is being used for inpainting to remove a stranger from the background of a wedding photograph it is clear that Sarah Anderson is not being impacted in any way shape or form despite the fact that her works were temporarily copied as part of the data ingestion process. This doctrine gives the lower courts a clear test that doesn't require diving deep into arguments about what it means for "computers to learn ideas" or for "language models to author". The problem with an opt-in model is that it puts enough of a burden on a language model that it discourages non-infringing commercial creation. The opt-out-on-request model, which would need some form of legislation and probably informed by both the DMCA and right-to-be-forgotten in Euro area, would be preferable as it would have much less of a burden on model creators.
  - jacquesm 4y ago
    Well, I didn't say that opt-out was the way to go, but that it would be better than nothing, which is what they have right now. You seem to be making a very convoluted argument that eventually boils down to 'because it is useful it must be right', aka an argument from utility. But copyright law has time and again been proven to be highly resilient against such arguments. You either have rights or you don't and in a moment of clairvoyance the people that came up with the current incarnation decided that it is such an important thing that it gets bestowed upon creation. No registration required (though it can help). Just making something and boom you have a bunch of rights which you can only contract out of. I don't think any utilitarian argument that results in the creation of new works based on the works of others will make those rights go away. I've read your other comments and I see that this tool is useful to you but don't be persuaded so easily by the utility: If I stole your work and passed it off as my own it might be very useful to society, especially if I re-licensed it under more permissive terms or even placed in the public domain. But I would be clearly infringing on your rights. You may in fact not be in a position to claim these works as your creation. The fact that 'my' work has a few hundred or even a few thousand such inputs rather than just one does not change the principle: I did not create the work, and that is the bit that really matters, unless you are creating a work it doesn't matter if you have the equivalent of a bitcoin tumbler for art at your disposal to pretend that you have created a work. You did not. The fact that you used a tool that obfuscates attribution and overrules the licensing terms of the original copyright holders does not mean that you can claim your hands are clean: you know exactly what is going on behind the scenes. Personally I won't go within a mile of these tools to create work that I put my name under .

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.

williamcotton 4y ago
What makes "commercially significant non-infringing use" such a great doctrine is that it lets there be some objective measurement of how generally useful a given practice is towards the benefit of the public good. The doctrine does this by establishing that the tool can be used for a myriad of ways that in no way directly compete with the original work in the marketplace. For example, when Stable Diffusion is being used for inpainting to remove a stranger from the background of a wedding photograph it is clear that Sarah Anderson is not being impacted in any way shape or form despite the fact that her works were temporarily copied as part of the data ingestion process. This doctrine gives the lower courts a clear test that doesn't require diving deep into arguments about what it means for "computers to learn ideas" or for "language models to author". The problem with an opt-in model is that it puts enough of a burden on a language model that it discourages non-infringing commercial creation. The opt-out-on-request model, which would need some form of legislation and probably informed by both the DMCA and right-to-be-forgotten in Euro area, would be preferable as it would have much less of a burden on model creators.
- jacquesm 4y ago
  Well, I didn't say that opt-out was the way to go, but that it would be better than nothing, which is what they have right now. You seem to be making a very convoluted argument that eventually boils down to 'because it is useful it must be right', aka an argument from utility. But copyright law has time and again been proven to be highly resilient against such arguments. You either have rights or you don't and in a moment of clairvoyance the people that came up with the current incarnation decided that it is such an important thing that it gets bestowed upon creation. No registration required (though it can help). Just making something and boom you have a bunch of rights which you can only contract out of. I don't think any utilitarian argument that results in the creation of new works based on the works of others will make those rights go away. I've read your other comments and I see that this tool is useful to you but don't be persuaded so easily by the utility: If I stole your work and passed it off as my own it might be very useful to society, especially if I re-licensed it under more permissive terms or even placed in the public domain. But I would be clearly infringing on your rights. You may in fact not be in a position to claim these works as your creation. The fact that 'my' work has a few hundred or even a few thousand such inputs rather than just one does not change the principle: I did not create the work, and that is the bit that really matters, unless you are creating a work it doesn't matter if you have the equivalent of a bitcoin tumbler for art at your disposal to pretend that you have created a work. You did not. The fact that you used a tool that obfuscates attribution and overrules the licensing terms of the original copyright holders does not mean that you can claim your hands are clean: you know exactly what is going on behind the scenes. Personally I won't go within a mile of these tools to create work that I put my name under .