4 ms·

Not a lawyer, but given that it takes the original picture as an input, there's a very strong claim that it's a tool to create a derivative work. At which point

Not a lawyer, but given that it takes the original picture as an input, there's a very strong claim that it's a tool to create a derivative work. At which point, it's time to ask the question if this is going to be fair use... Okay, when you're advertising your product as a "get around copyright", you're going to so torpedo your credibility before the judge that there's no point trying to analyze the fair use factors--the judge is going to do whatever it takes to make them come out not in your favor.

rhizome 4y ago
That tagline certainly seems like it's gonna make their "preponderance of evidence" an uphill battle!
shagie 4y ago
> Not a lawyer, but given that it takes the original picture as an input, there's a very strong claim that it's a tool to create a derivative work. If I take an image and then create a thumbnail of it would that be an infringing derivative work? https://www.eff.org/deeplinks/2006/02/perfect-10-v-google-more-smooth-crunchy https://www.eff.org/deeplinks/2006/02/perfect-10-v-google-mo... and https://web.archive.org/web/20060813093554/https://www.eff.org/legal/cases/Perfect10_v_Google/ https://web.archive.org/web/20060813093554/https://www.eff.o...
- jcranmer 4y ago
  Thumbnails are absolutely infringing... but they are fair use in most cases! Edit: on second thought, they might not even be derivative works (as a derivative work requires the same spark of creativity necessary for a copyrightable work), just outright reproduction. But the point that they are fair use still stands.
- wizzwizz4 4y ago
  It would unambiguously be a derivative work. (IANAL, but I'm willing to assert this.) I wouldn't think it would be infringing: I'm not particularly familiar with US law, but it seems like a classic case of fair use. Note: the case you linked was appealed, and that ruling was reversed. https://www.eff.org/deeplinks/2007/05/p10-v-google-public-interest-prevails-digital-copyright-showdown https://www.eff.org/deeplinks/2007/05/p10-v-google-public-in...
  - shagie 4y ago
    Yep... and from the link: > Fortunately, the Court wasn't buying it. It rejected Perfect 10's theory and found that until Perfect 10 gave Google actual knowledge of specific infringements (e.g. specific URLs for infringing images), Google had no duty to act and could not be liable. It also held that Google could not "supervise or control" the third-party websites linked to from its search results, something most people (except apparently Perfect 10) probably already knew. The rule provides strong guidelines for future development and avoids the kind of uncertainty that could chill start-ups trying to get the next great innovation off the ground.
    - squeaky-clean 4y ago
      That quote has nothing to do with hosting resized thumbnails. This about hosting links that point at infringing content.
      - shagie 4y ago
        Lets go to the full text: https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2010%20Abridged.pdf https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2... > We conclude that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumb- nails in this case. In reaching this conclusion, we note the importance of analyzing fair use flexibly in light of new circumstances. We are also mindful of the Supreme Court's direction that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Campbell, 510 U.S. at 579. > With respect to the second factor, "the nature of the copy- righted work," 17 U.S.C. § 107(2), our decision in Kelly is directly on point. There we held that the photographer's images were "creative in nature" and thus "closer to the core of intended copyright protection than are more fact-based works." However, because the photos appeared on the Internet before Arriba used thumbnail versions in its search engine results, this factor weighed only slightly in favor of the photographer. > Here, the district court found that Perfect 10's images were creative but also previously pub- lished. The right of first publication is "the author's right to control the first public appearance of his expression." Because this right encompasses "the choices of when, where, and in what form first to publish a work," id., an author exercises and exhausts this one-time right by publishing the work in any medium. See, e.g., Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1235 (9th Cir. 1998) (noting, in the context of the common law right of first publication, that such a right "does not entail multiple first publication rights in every available medium"). Once Perfect 10 has exploited this commercially valuable right of first publication by putting its images on the Internet for paid subscribers, Perfect 10 is no longer entitled to the enhanced protection available for an un- published work. Accordingly the district court did not err in holding that this factor weighed only slightly in favor of Perfect 10. ... > Having undertaken a case-specific analysis of all four factors, we now weigh these factors to- gether "in light of the purposes of copyright." In this case, Google has put Perfect 10's thumbnail images (along with millions of other thumbnail images) to a use fundamentally different than the use intended by Perfect 10. In doing so, Google has provided a significant benefit to the public. Weighing this significant transformative use against the unproven use of Google's thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copy- right, we conclude that Google's use of Perfect 10's thumbnails is a fair use. Because the district court here "found facts sufficient to evaluate each of the statutory factors . . . [we] need not remand for further factfinding." We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google's use of thumbnail images. --- And so, is the model that Stability created significantly transformative, fundamentally different, and likely to provide significant benefit to the public?
- squeaky-clean 4y ago
  Your own first link answers that question. No that is not fair use > Google automatically makes low-rez thumbnails of all the images it indexes. The court concluded that Google's creation and display of these thumbnails from infringing websites did not fall within fair use.
  - shagie 4y ago
    From the appeal: https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2010%20Abridged.pdf https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2... > Having undertaken a case-specific analysis of all four factors, we now weigh these factors together "in light of the purposes of copyright." In this case, Google has put Perfect 10's thumbnail images (along with millions of other thumbnail images) to a use fundamentally different than the use intended by Perfect 10. In doing so, Google has provided a significant benefit to the public. Weighing this significant transformative use against the unproven use of Google's thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copy- right, we conclude that Google's use of Perfect 10's thumbnails is a fair use. Because the district court here "found facts sufficient to evaluate each of the statutory factors . . . [we] need not remand for further factfinding." We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google's use of thumbnail images.
wgjordan 4y ago
> Not a lawyer, but given that it takes the original picture as an input, there's a very strong claim that it's a tool to create a derivative work. I don't think it's that simple- as I understood the proposed conversion, there would be two phases. The first phase extracts an 'idea prompt' from a source expression (resulting in "an asian man lying in a grass field surrounded by a semicircle of driftwood and crows"). The second phase generates a new expression from this prompt alone. As long as this intermediate 'idea prompt' is sufficiently devoid of 'expression' elements to withstand scrutiny (and the tool could even embed its idea prompt in metadata for auditing purposes), I would imagine the final output to be likewise considered a sufficiently transformative work compared to the original.
- VanTheBrand 4y ago
  That’s not really how it works. Copyright is less about process than result. For example, a human can—-completely from memory—-draw an entirely new image and it can be found to be infringing on an original. Similarly if I took someone else’s book and made a silent film adaptation of it. That is a derivative work, it won’t contain any of the literal words from the book or any words at all but if it contains a representation of the unique, identifiable characteristics of the underlying work it’s going to be considered a derivative (infringing) work. So many of these gotchas people talk about with AI are not nearly so simple.
  - realusername 4y ago
    No that's the opposite, patents are about the result and copyright is about the process. If that would work like that, all those image boards like Getty themselves would never be able to exist since there's so many near identical images produced independently.
    - Volundr 4y ago
      That's not true. If you patent the Microwave, I am free to heat my food in the oven. The result is the food is cooked, the method is different. The process is a key part of the patent. Edit: After gasp researching (which maybe we should all consider before commenting) you can patent one of 4 things, process, machine, article of manufacture, or composition of matter. Source: https://en.wikipedia.org/wiki/Method_(patent) https://en.wikipedia.org/wiki/Method_(patent) so process is definitely something you can patent, but is not necessarily required.
judge2020 4y ago
> the judge is going to do whatever it takes to make them come out not in your favor. Besides via collusion with the appeals court(s), this isn't going to happen.
- jcranmer 4y ago
  Fair use analysis isn't some dispassionate, exhaustive analysis that's used to come to a decision. No, the judge makes a decision, and then uses the analysis to justify the decision. For a particularly stark example of how divergent the analyses can be to justify different decisions, read both opinions in Google v Oracle, which are almost diametrically opposite despite being written on the same facts.

rhizome 4y ago

That tagline certainly seems like it's gonna make their "preponderance of evidence" an uphill battle!

shagie 4y ago

> Not a lawyer, but given that it takes the original picture as an input, there's a very strong claim that it's a tool to create a derivative work. If I take an image and then create a thumbnail of it would that be an infringing derivative work? https://www.eff.org/deeplinks/2006/02/perfect-10-v-google-more-smooth-crunchy https://www.eff.org/deeplinks/2006/02/perfect-10-v-google-mo... and https://web.archive.org/web/20060813093554/https://www.eff.org/legal/cases/Perfect10_v_Google/ https://web.archive.org/web/20060813093554/https://www.eff.o...

jcranmer 4y ago
Thumbnails are absolutely infringing... but they are fair use in most cases! Edit: on second thought, they might not even be derivative works (as a derivative work requires the same spark of creativity necessary for a copyrightable work), just outright reproduction. But the point that they are fair use still stands.
wizzwizz4 4y ago
It would unambiguously be a derivative work. (IANAL, but I'm willing to assert this.) I wouldn't think it would be infringing: I'm not particularly familiar with US law, but it seems like a classic case of fair use. Note: the case you linked was appealed, and that ruling was reversed. https://www.eff.org/deeplinks/2007/05/p10-v-google-public-interest-prevails-digital-copyright-showdown https://www.eff.org/deeplinks/2007/05/p10-v-google-public-in...
- shagie 4y ago
  Yep... and from the link: > Fortunately, the Court wasn't buying it. It rejected Perfect 10's theory and found that until Perfect 10 gave Google actual knowledge of specific infringements (e.g. specific URLs for infringing images), Google had no duty to act and could not be liable. It also held that Google could not "supervise or control" the third-party websites linked to from its search results, something most people (except apparently Perfect 10) probably already knew. The rule provides strong guidelines for future development and avoids the kind of uncertainty that could chill start-ups trying to get the next great innovation off the ground.
  - squeaky-clean 4y ago
    That quote has nothing to do with hosting resized thumbnails. This about hosting links that point at infringing content.
    - shagie 4y ago
      Lets go to the full text: https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2010%20Abridged.pdf https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2... > We conclude that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumb- nails in this case. In reaching this conclusion, we note the importance of analyzing fair use flexibly in light of new circumstances. We are also mindful of the Supreme Court's direction that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Campbell, 510 U.S. at 579. > With respect to the second factor, "the nature of the copy- righted work," 17 U.S.C. § 107(2), our decision in Kelly is directly on point. There we held that the photographer's images were "creative in nature" and thus "closer to the core of intended copyright protection than are more fact-based works." However, because the photos appeared on the Internet before Arriba used thumbnail versions in its search engine results, this factor weighed only slightly in favor of the photographer. > Here, the district court found that Perfect 10's images were creative but also previously pub- lished. The right of first publication is "the author's right to control the first public appearance of his expression." Because this right encompasses "the choices of when, where, and in what form first to publish a work," id., an author exercises and exhausts this one-time right by publishing the work in any medium. See, e.g., Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1235 (9th Cir. 1998) (noting, in the context of the common law right of first publication, that such a right "does not entail multiple first publication rights in every available medium"). Once Perfect 10 has exploited this commercially valuable right of first publication by putting its images on the Internet for paid subscribers, Perfect 10 is no longer entitled to the enhanced protection available for an un- published work. Accordingly the district court did not err in holding that this factor weighed only slightly in favor of Perfect 10. ... > Having undertaken a case-specific analysis of all four factors, we now weigh these factors to- gether "in light of the purposes of copyright." In this case, Google has put Perfect 10's thumbnail images (along with millions of other thumbnail images) to a use fundamentally different than the use intended by Perfect 10. In doing so, Google has provided a significant benefit to the public. Weighing this significant transformative use against the unproven use of Google's thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copy- right, we conclude that Google's use of Perfect 10's thumbnails is a fair use. Because the district court here "found facts sufficient to evaluate each of the statutory factors . . . [we] need not remand for further factfinding." We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google's use of thumbnail images. --- And so, is the model that Stability created significantly transformative, fundamentally different, and likely to provide significant benefit to the public?
squeaky-clean 4y ago
Your own first link answers that question. No that is not fair use > Google automatically makes low-rez thumbnails of all the images it indexes. The court concluded that Google's creation and display of these thumbnails from infringing websites did not fall within fair use.
- shagie 4y ago
  From the appeal: https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2010%20Abridged.pdf https://cyber.harvard.edu/people/tfisher/IP/2007%20Perfect%2... > Having undertaken a case-specific analysis of all four factors, we now weigh these factors together "in light of the purposes of copyright." In this case, Google has put Perfect 10's thumbnail images (along with millions of other thumbnail images) to a use fundamentally different than the use intended by Perfect 10. In doing so, Google has provided a significant benefit to the public. Weighing this significant transformative use against the unproven use of Google's thumbnails for cell phone downloads, and considering the other fair use factors, all in light of the purpose of copy- right, we conclude that Google's use of Perfect 10's thumbnails is a fair use. Because the district court here "found facts sufficient to evaluate each of the statutory factors . . . [we] need not remand for further factfinding." We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google's use of thumbnail images.

wgjordan 4y ago

> Not a lawyer, but given that it takes the original picture as an input, there's a very strong claim that it's a tool to create a derivative work. I don't think it's that simple- as I understood the proposed conversion, there would be two phases. The first phase extracts an 'idea prompt' from a source expression (resulting in "an asian man lying in a grass field surrounded by a semicircle of driftwood and crows"). The second phase generates a new expression from this prompt alone. As long as this intermediate 'idea prompt' is sufficiently devoid of 'expression' elements to withstand scrutiny (and the tool could even embed its idea prompt in metadata for auditing purposes), I would imagine the final output to be likewise considered a sufficiently transformative work compared to the original.

VanTheBrand 4y ago
That’s not really how it works. Copyright is less about process than result. For example, a human can—-completely from memory—-draw an entirely new image and it can be found to be infringing on an original. Similarly if I took someone else’s book and made a silent film adaptation of it. That is a derivative work, it won’t contain any of the literal words from the book or any words at all but if it contains a representation of the unique, identifiable characteristics of the underlying work it’s going to be considered a derivative (infringing) work. So many of these gotchas people talk about with AI are not nearly so simple.
- realusername 4y ago
  No that's the opposite, patents are about the result and copyright is about the process. If that would work like that, all those image boards like Getty themselves would never be able to exist since there's so many near identical images produced independently.
  - Volundr 4y ago
    That's not true. If you patent the Microwave, I am free to heat my food in the oven. The result is the food is cooked, the method is different. The process is a key part of the patent. Edit: After gasp researching (which maybe we should all consider before commenting) you can patent one of 4 things, process, machine, article of manufacture, or composition of matter. Source: https://en.wikipedia.org/wiki/Method_(patent) https://en.wikipedia.org/wiki/Method_(patent) so process is definitely something you can patent, but is not necessarily required.

judge2020 4y ago

> the judge is going to do whatever it takes to make them come out not in your favor. Besides via collusion with the appeals court(s), this isn't going to happen.

jcranmer 4y ago
Fair use analysis isn't some dispassionate, exhaustive analysis that's used to come to a decision. No, the judge makes a decision, and then uses the analysis to justify the decision. For a particularly stark example of how divergent the analyses can be to justify different decisions, read both opinions in Google v Oracle, which are almost diametrically opposite despite being written on the same facts.