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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 giv

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 .
- williamcotton 4y ago
  I’m willing to play this silly game for one reason: it’s absurd and I want you to look silly because you’ve now insulted my artistic practice as unoriginal so the gloves are off. So I’ve used Stable Diffusion and I’m “literally” stealing from every artist. Prove it. Get a warrant to search my premises for signs of illegal language model use. How do you get a warrant with an image that has no visual evidence of being a copy?
  - jacquesm 4y ago
    It's not silly. If you disconnect from the internet and you can no longer produce the same level of art that's all the proof that's required. Clearly you are sourcing it from somewhere, not your own brain. I can prove to you that my writing and my code are mine because you can stand behind me and look over my shoulder to see that I am creating it, one bit (or at most 8) at the time. Visual evidence of it being a copy is not required: what's required is a track of creation aka provenance. This is a very well defined area in copyright. So the proof would be trivial: you recreate your work again, without access to Stable Diffusion or equivalent, while being monitored and if you can not then that would count as a bust in my book. If you're a good enough artist that you can do that and you merely use SD as a way to get some inspiration then that's another matter. But if the output of SD is in the workflow in such a way that its output is directly your input then that would be troublesome (to me). If it is copied then that still would be troublesome (to me). If you feel ok with that it is entirely up to you, but I have my views on that, which I'm perfectly at liberty to share. And of course once you've made it work likely it is trivial to make it again so probably the above test conditions would need some sharpening but you get the principle. Without provenance you are still creating art, but you are not creating original art. And if you were a good enough artist before SD then you should still be after, even if you're not using it and everybody else is, at least your work will be and will continue to be original. I'm trying to imagine a world in which Rembrandt van Rijn admitted to using SD to create the Nightwatch, projecting it on a big canvas and then erasing the prompt. I figure it wouldn't give me quite the same feeling that it does today. Of course artists will use the tools that are at their disposal, but this tool essentially is a pocket sized library of all the other art that could be vacuumed up into the model and that just doesn't sit right with me. Which parts are yours and which parts are SD? If you claim an outsider can't un-entangle them to the point where cause and effect are separated do you really feel that that is the bar that should be met? If so what if I trained a model on your art exclusively and then used that to produce prompt driven 'art' to compete with you, would you think that's fair? And if not, why would the number of inputs be a factor? It's the principles that matter. FWIW my dad made a living as a painter for quite a few years and even though I can't paint worth anything I know enough about brush technique to get oil to stick to canvas. Given this tool I could produce 'art' that I probably could pass off as original and it would likely not be detected by your standard. But without the tool I would be absolutely hopeless so that's a pretty good argument. The more of an artist someone is the more brittle that argument becomes, there may well be a border beyond which what someone creates using such a tool does qualify as original work but again, to me, such a work would feel tainted. Do you disclose the use of SD to the customers that buy these works?

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 .

williamcotton 4y ago
I’m willing to play this silly game for one reason: it’s absurd and I want you to look silly because you’ve now insulted my artistic practice as unoriginal so the gloves are off. So I’ve used Stable Diffusion and I’m “literally” stealing from every artist. Prove it. Get a warrant to search my premises for signs of illegal language model use. How do you get a warrant with an image that has no visual evidence of being a copy?
- jacquesm 4y ago
  It's not silly. If you disconnect from the internet and you can no longer produce the same level of art that's all the proof that's required. Clearly you are sourcing it from somewhere, not your own brain. I can prove to you that my writing and my code are mine because you can stand behind me and look over my shoulder to see that I am creating it, one bit (or at most 8) at the time. Visual evidence of it being a copy is not required: what's required is a track of creation aka provenance. This is a very well defined area in copyright. So the proof would be trivial: you recreate your work again, without access to Stable Diffusion or equivalent, while being monitored and if you can not then that would count as a bust in my book. If you're a good enough artist that you can do that and you merely use SD as a way to get some inspiration then that's another matter. But if the output of SD is in the workflow in such a way that its output is directly your input then that would be troublesome (to me). If it is copied then that still would be troublesome (to me). If you feel ok with that it is entirely up to you, but I have my views on that, which I'm perfectly at liberty to share. And of course once you've made it work likely it is trivial to make it again so probably the above test conditions would need some sharpening but you get the principle. Without provenance you are still creating art, but you are not creating original art. And if you were a good enough artist before SD then you should still be after, even if you're not using it and everybody else is, at least your work will be and will continue to be original. I'm trying to imagine a world in which Rembrandt van Rijn admitted to using SD to create the Nightwatch, projecting it on a big canvas and then erasing the prompt. I figure it wouldn't give me quite the same feeling that it does today. Of course artists will use the tools that are at their disposal, but this tool essentially is a pocket sized library of all the other art that could be vacuumed up into the model and that just doesn't sit right with me. Which parts are yours and which parts are SD? If you claim an outsider can't un-entangle them to the point where cause and effect are separated do you really feel that that is the bar that should be met? If so what if I trained a model on your art exclusively and then used that to produce prompt driven 'art' to compete with you, would you think that's fair? And if not, why would the number of inputs be a factor? It's the principles that matter. FWIW my dad made a living as a painter for quite a few years and even though I can't paint worth anything I know enough about brush technique to get oil to stick to canvas. Given this tool I could produce 'art' that I probably could pass off as original and it would likely not be detected by your standard. But without the tool I would be absolutely hopeless so that's a pretty good argument. The more of an artist someone is the more brittle that argument becomes, there may well be a border beyond which what someone creates using such a tool does qualify as original work but again, to me, such a work would feel tainted. Do you disclose the use of SD to the customers that buy these works?