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>> He wrote that the sheer size of the LAION database may protect the company because it is “simply not plausible that every training image used to train Stable

>> He wrote that the sheer size of the LAION database may protect the company because it is “simply not plausible that every training image used to train Stable Diffusion was copyrighted (as opposed to copyrightable) or that all DeviantArt users’ output images rely upon (theoretically) copyright training images.” This is where I think the judge misspoke. "Copyrighted" does not mean registered. Copyrights attach at creation and does not require anything of the creator. What the judge is referencing is the fact that registered copyrighted works are given additional protections, notably the award of attorney fees in disputes. But the fact that a work was not registered, what the judge incorrectly describes as "copyrighted", does not mean it is outside copyright. All the same rules apply governing how the material may be used or not used. You just don't get as money when you sue over a non-registered work. I would hazard that the vast majority of copyrighted works are not registered. Every holiday photo taken is copyrighted. Every word typed on HN is copyrighted. Virtually none are registered. That doesn't mean such things are public domain, free for use by whomever/whatever runs across them online.

nobodyandproud 3y ago
> This is where I think the judge misspoke. "Copyrighted" does not mean registered. Copyrights attach at creation and does not require anything of the creator. What the judge is referencing is the fact that registered copyrighted works are given additional protections, notably the award of attorney fees in disputes. Aren’t there visual art in the public domain? INAL but the judge’s ruling seems technically correct, so what am I missing?
- bertil 3y ago
  > Aren’t there visual art in the public domain? Yes, photos taken by people working for the government for example, and anything shared with Wikipedia should have a license for free use (typically CC0) [0] That’s an important, valuable part of all images, but a very small segment overall. The vast majority of images (holiday photos, posts on social media, Deviant Art, etc.) are not in the public domain, even if they are online. [0] https://en.wikipedia.org/wiki/Wikipedia:Image_use_policy#:~:text=All%20user%2Dcreated%20images%20must,all%20copyright%20and%20licensing%20restrictions https://en.wikipedia.org/wiki/Wikipedia:Image_use_policy#:~:....
  - zozbot234 3y ago
    Most images found on Wikimedia sites actually require attribution to the original author, including for derivative works. So if you wished to include such images in training, you would also need an explainable AI that could tell you exactly what training inputs are influencing its output. (SVM is one machine learning method that can easily do this, but I'm not sure if it's ever been applied to image generation.)
    - brookst 3y ago
      > if you wished to include such images in training, you would also need an explainable AI that could tell you exactly what training inputs are influencing its output. This is a huge leap that would change copyright law dramatically, even for humans. Youre asserting that copyright doesn’t just protect from reproduction, but from use as an example to learn from. I think this would break copyright altogether. What musician or artist can say a work is 100% original and does not incorporate any details or concepts from work they’ve seen / listened to / read? I know people hold that position, but it’s important to be transparent that applying copyright to training/learning (in addition to output) would be an overhaul of copyrigh, not a clear and obvious application of the law as it stands.
      - deleted 3y ago
        [deleted]
      - bee_rider 3y ago
        You only have to make that leap if you suppose that machine learning algorithms actually learn and then become capable of creating their own original works, rather than producing mechanical transformations of their inputs. Which, I don’t think that’s an inherently absurd statement. I mean, at some point humans physically exist, so a sufficiently complex artificial being could exactly replicate our physically processes, and it would be hard (imo) to argue that such a thing isn’t a person. But I don’t see the non-big-leap option. Either we admit that machines can actually perform creative works which are their own ideas, or we call the thing they do a derivative work, and we admit that we can’t just eyeball the difference between an original work and a derivative work anymore. That there’s something intrinsically special about having a human in the loop.
sidewndr46 3y ago
Copyright does at least in theory lapse, depending on the nature of the work. I don't think I've seen any AI companies claiming all their training dataset is pre-copyright however.
- NoMoreNicksLeft 3y ago
  In what way is training "copying"? This is just an attempt at a landgrab by idiot copyright maximalists.
  - sidewndr46 3y ago
    I'm not arguing whether or not this is copying. I"m pointing out that a seller of AI services could market their model as being trained on source material that is exclusively from outside the window that copyright currently applies to.
  - ghaff 3y ago
    Name-calling doesn't help your argument. But I do suspect that there are two overlapping schools among the most vocal supporters of this technology. - Those who think that generative AI is so wonderful because they have a vested interest and/or have bought into the most breathless hype - Those who more or less think copyright shouldn't exist in any case
    - NoMoreNicksLeft 3y ago
      > Those who more or less think copyright shouldn't exist in any case I still believe a little bit in Jefferson's vision. It's just that that has so little to do with copyright that we're probably not even talking about the same thing. He envisioned copyright as being an incentive to create and do new things, to learn new things. And here, as it would be used, it would shut down new technologies and quash new ideas. Clearly, such people are doing copyright wrong. I am not religious, I do not believe in "sin", but if that word did have any real use, it might be strong enough to describe those who would misuse copyright. In any event, Jefferson was granting a very limited privilege and not describing a fundamental human right. This privilege was granted by the people, and the people do have the right to revoke that privilege if it continues to be misused. This, I think, is all the warning the misusers deserve. A comment that will be read by hardly anyone, that they will surely never see, and which will give them no headsup at all.
bee_rider 3y ago
I don’t really understand the argument here anyway (although, as your typical commenter, I am reading this before actually reading the article). Every day, I commit a huge number of non-criminal actions. So as long as I have some non-crimes, and I guess it doesn’t even need to be the majority under this standard, I’m fine to commit a bunch of crimes?
- gosub100 3y ago
  No, that is not the precedent set here. A legal claim was brought against the defendant, but (the judge found) that some of the evidence didn't have a specific property (copyright). Also the case was done in civil court, which has different rules and procedures than criminal court. This case is not about what one person did during the day.
  - leereeves 3y ago
    In short, the judge ruled that McKernan and Ortiz hadn't followed proper procedure for a lawsuit of this type, because they did not register their works with the U.S. Copyright Office before filing the lawsuit.
  - bee_rider 3y ago
    That doesn’t seem to fit with the quote, though. The phrasing “not plausible that every training image used to train Stable Diffusion was copyrighted” makes it pretty explicit, I think, that what is protecting the data-set is the presence of non-copyright images, not the absence of copyright ones.
    - bee_rider 3y ago
      Actually, just to follow up, I think the crucial element here is: > The judge has offered the plaintiffs an opportunity to amend and clarify their theory as to how Stable Diffusion operates its training data. Since they are allowed to amend part of their claims, it seems more like the judge is just asking them to be a little more specific about which copyright works were included.
SLSMan 3y ago
The terminology can be confusing, but "copyrighted" is often used interchangeably with "registered". Copyright in a work exists from the moment it's the work is created, but it's not "copyrighted" in the sense the judge is using until the work is registered with the Copyright Office. Registration is a requirement to sue for infringement. So a work is protected by copyright as soon as it's created, but it needs to be registered before one can sue for infringement. That can be done after the infringement occurs. For example, if a work is created in 2020 and someone infringes on the copyright beginning in 2021, the work can be registered in 2023 and the creator can sue for the past infringement (though not all of the same remedies are available). The issue here is that the artists are making broad claims that DeviantArt infringed all of their works (by letting them be used as training data), even though they didn't register all of their works. Only some of the artists that are suing registered their works, and they may not have registered all of the works they are suing over. That's what the first sentence in the next paragraph is about: "[E]ven if plaintiffs narrow their allegations to limit them to Output Images that draw upon Training Images based upon copyrighted images..." The judge didn't misspeak here.
- tsukikage 3y ago
  > So a work is protected by copyright as soon as it's created, but it needs to be > registered before one can sue for infringement. It's a little unclear quite what it means for a work to be protected if you don't actually have any recourse when infringement occurs.
  - leereeves 3y ago
    You do have recourse available, but registering the copyright is a required step in seeking that recourse, and must be done before suing. > Title 17 U. S. C. §411(a) states that “no civil action for infringement of the copyright in any United States work shall be instituted until ... registration of the copyright claim has been made in accordance with this title.” > ... however, a copyright owner can recover for infringement that occurred both before and after registration https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf

nobodyandproud 3y ago

> This is where I think the judge misspoke. "Copyrighted" does not mean registered. Copyrights attach at creation and does not require anything of the creator. What the judge is referencing is the fact that registered copyrighted works are given additional protections, notably the award of attorney fees in disputes. Aren’t there visual art in the public domain? INAL but the judge’s ruling seems technically correct, so what am I missing?

bertil 3y ago
> Aren’t there visual art in the public domain? Yes, photos taken by people working for the government for example, and anything shared with Wikipedia should have a license for free use (typically CC0) [0] That’s an important, valuable part of all images, but a very small segment overall. The vast majority of images (holiday photos, posts on social media, Deviant Art, etc.) are not in the public domain, even if they are online. [0] https://en.wikipedia.org/wiki/Wikipedia:Image_use_policy#:~:text=All%20user%2Dcreated%20images%20must,all%20copyright%20and%20licensing%20restrictions https://en.wikipedia.org/wiki/Wikipedia:Image_use_policy#:~:....
- zozbot234 3y ago
  Most images found on Wikimedia sites actually require attribution to the original author, including for derivative works. So if you wished to include such images in training, you would also need an explainable AI that could tell you exactly what training inputs are influencing its output. (SVM is one machine learning method that can easily do this, but I'm not sure if it's ever been applied to image generation.)
  - brookst 3y ago
    > if you wished to include such images in training, you would also need an explainable AI that could tell you exactly what training inputs are influencing its output. This is a huge leap that would change copyright law dramatically, even for humans. Youre asserting that copyright doesn’t just protect from reproduction, but from use as an example to learn from. I think this would break copyright altogether. What musician or artist can say a work is 100% original and does not incorporate any details or concepts from work they’ve seen / listened to / read? I know people hold that position, but it’s important to be transparent that applying copyright to training/learning (in addition to output) would be an overhaul of copyrigh, not a clear and obvious application of the law as it stands.
    - deleted 3y ago
      [deleted]
    - bee_rider 3y ago
      You only have to make that leap if you suppose that machine learning algorithms actually learn and then become capable of creating their own original works, rather than producing mechanical transformations of their inputs. Which, I don’t think that’s an inherently absurd statement. I mean, at some point humans physically exist, so a sufficiently complex artificial being could exactly replicate our physically processes, and it would be hard (imo) to argue that such a thing isn’t a person. But I don’t see the non-big-leap option. Either we admit that machines can actually perform creative works which are their own ideas, or we call the thing they do a derivative work, and we admit that we can’t just eyeball the difference between an original work and a derivative work anymore. That there’s something intrinsically special about having a human in the loop.

sidewndr46 3y ago

Copyright does at least in theory lapse, depending on the nature of the work. I don't think I've seen any AI companies claiming all their training dataset is pre-copyright however.

NoMoreNicksLeft 3y ago
In what way is training "copying"? This is just an attempt at a landgrab by idiot copyright maximalists.
- sidewndr46 3y ago
  I'm not arguing whether or not this is copying. I"m pointing out that a seller of AI services could market their model as being trained on source material that is exclusively from outside the window that copyright currently applies to.
- ghaff 3y ago
  Name-calling doesn't help your argument. But I do suspect that there are two overlapping schools among the most vocal supporters of this technology. - Those who think that generative AI is so wonderful because they have a vested interest and/or have bought into the most breathless hype - Those who more or less think copyright shouldn't exist in any case
  - NoMoreNicksLeft 3y ago
    > Those who more or less think copyright shouldn't exist in any case I still believe a little bit in Jefferson's vision. It's just that that has so little to do with copyright that we're probably not even talking about the same thing. He envisioned copyright as being an incentive to create and do new things, to learn new things. And here, as it would be used, it would shut down new technologies and quash new ideas. Clearly, such people are doing copyright wrong. I am not religious, I do not believe in "sin", but if that word did have any real use, it might be strong enough to describe those who would misuse copyright. In any event, Jefferson was granting a very limited privilege and not describing a fundamental human right. This privilege was granted by the people, and the people do have the right to revoke that privilege if it continues to be misused. This, I think, is all the warning the misusers deserve. A comment that will be read by hardly anyone, that they will surely never see, and which will give them no headsup at all.

bee_rider 3y ago

I don’t really understand the argument here anyway (although, as your typical commenter, I am reading this before actually reading the article). Every day, I commit a huge number of non-criminal actions. So as long as I have some non-crimes, and I guess it doesn’t even need to be the majority under this standard, I’m fine to commit a bunch of crimes?

gosub100 3y ago
No, that is not the precedent set here. A legal claim was brought against the defendant, but (the judge found) that some of the evidence didn't have a specific property (copyright). Also the case was done in civil court, which has different rules and procedures than criminal court. This case is not about what one person did during the day.
- leereeves 3y ago
  In short, the judge ruled that McKernan and Ortiz hadn't followed proper procedure for a lawsuit of this type, because they did not register their works with the U.S. Copyright Office before filing the lawsuit.
- bee_rider 3y ago
  That doesn’t seem to fit with the quote, though. The phrasing “not plausible that every training image used to train Stable Diffusion was copyrighted” makes it pretty explicit, I think, that what is protecting the data-set is the presence of non-copyright images, not the absence of copyright ones.
  - bee_rider 3y ago
    Actually, just to follow up, I think the crucial element here is: > The judge has offered the plaintiffs an opportunity to amend and clarify their theory as to how Stable Diffusion operates its training data. Since they are allowed to amend part of their claims, it seems more like the judge is just asking them to be a little more specific about which copyright works were included.

SLSMan 3y ago

The terminology can be confusing, but "copyrighted" is often used interchangeably with "registered". Copyright in a work exists from the moment it's the work is created, but it's not "copyrighted" in the sense the judge is using until the work is registered with the Copyright Office. Registration is a requirement to sue for infringement. So a work is protected by copyright as soon as it's created, but it needs to be registered before one can sue for infringement. That can be done after the infringement occurs. For example, if a work is created in 2020 and someone infringes on the copyright beginning in 2021, the work can be registered in 2023 and the creator can sue for the past infringement (though not all of the same remedies are available). The issue here is that the artists are making broad claims that DeviantArt infringed all of their works (by letting them be used as training data), even though they didn't register all of their works. Only some of the artists that are suing registered their works, and they may not have registered all of the works they are suing over. That's what the first sentence in the next paragraph is about: "[E]ven if plaintiffs narrow their allegations to limit them to Output Images that draw upon Training Images based upon copyrighted images..." The judge didn't misspeak here.

tsukikage 3y ago
> So a work is protected by copyright as soon as it's created, but it needs to be > registered before one can sue for infringement. It's a little unclear quite what it means for a work to be protected if you don't actually have any recourse when infringement occurs.
- leereeves 3y ago
  You do have recourse available, but registering the copyright is a required step in seeking that recourse, and must be done before suing. > Title 17 U. S. C. §411(a) states that “no civil action for infringement of the copyright in any United States work shall be instituted until ... registration of the copyright claim has been made in accordance with this title.” > ... however, a copyright owner can recover for infringement that occurred both before and after registration https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf