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An IP attorney’s reading of the Stable Diffusion class action lawsuit

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Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#181

Post by haswell »

scotty79 wrote: post #172
anigbrowl wrote: post #110

Earlier quoted context omitted.

AI gives an artist a ticket to a lottery that can strongly boost their name without doing any additional service. Fame has a very short half-life and unless you have all the licensing/contractual machinery in place beforehand, you probably won't be able to cash on that boost. The line of thinking you articulate here is extremely familiar to anyone who does creative work. It's the same argument that producers use to g…

> Fame has a very short half-life and unless you have all the licensing/contractual machinery in place beforehand, you probably won't be able to cash on that boost. I'm not sure how did you manage to miss thousands of artists able to capitalize on sudden and accidental fame for decades without any prior arrangements. I'm not saying it's easy. I'm saying it's possible. Also to put this in context compare this with how…

> If AI people were forcing artist to create new art and paying them with the promise of exposure in their generated works I'll be completely on your side. However it requires zero work from artist to have their already published work to be used as learning material.

This seems like an odd way to frame this. The reality is closer to "artists were never included in the conversation to begin with". Arguing that "no one forced them to create anything new" seems irrelevant when you consider that without the content, none of this exists to begin with.

The problem is the assumption that artists are or should be universally fine with this.

> World without copyright and zero publishing cost is the one where authors and consumers are in control and negotiate through attention economy. World of copyright is the world where copyright hoarding dragon starve both artists and consumers.

If you want to argue against copyright, that's fine, and I have plenty of issues with the current iteration of this framework of rules. But that is not the same argument as "Tools like Stable Diffusion aren't infringing because xyz technical reasons".

I think it'd be helpful to be clearer about arguments for/against the spirit of the rules themselves vs. arguments about why generative AI tools do or do not create content that infringes those rules as currently designed or require an entirely new framework of thinking about the problem.

They are important but distinct problems.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#182

Post by shagie »

wvenable wrote: post #87
acomjean wrote: post #18

>"The output represents the model’s understanding of what is useful, aesthetic, pleasing, etc. and that, together with data filtering and cleaning that general image generating AI companies do,2 is what the companies consider most valuable, not the training data.3" This didn't make any sense to me. Without the curated training data (images) how are they making the models? No matter what, putting images into your mach…

> Machines aren't people. There's no reason why that is the significant detail. Why does it matter? If you can look at millions of images over your lifetime and faithfully reproduce famous works of art by hand, aren't you just as wrong?

Machines can't create copyrighted works.

Setting aside the question of "is the model a derivative work", running the program cannot create a work that is copyrighted. Only humans (and not monkeys) can hold a copyright.

And thus, the questions are: "is generating a model based on the data set a derivate work" and the unasked question "is asking the model to generate a work in the style of {artist} a derivative work by the person asking the model?"

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#183

Post by quadcore »

CrimsonRain wrote: post #179
quadcore wrote: post #160

Earlier quoted context omitted.

Human artists/writers are influenced by each other all the time. The flaw in this argument is the word "artist". If you remove all the pictures from the data source, the AI isnt capable of generating anything. Because it's not an artist.

So if you were born blind, you can draw pictures?

I can assure you I absolutely could. Myself to start with - and possibly better than you could :)

Only a bodyless, artificial brain cant draw anything, blind.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#184

Post by sct202 »

epistemer wrote: post #111
dns_snek wrote: post #49

> Stability AI has already announced that it is removing users’ ability to request images in a particular artist’s style and further, that future releases of Stable Diffusion will comply with any artist’s requests to remove their images from the training dataset. With that removal, the most outrage-inducing and troublesome output examples disappear from this case, leaving a much more complex and muddled set of facts…

It seems highly foolish from a marketing perspective for the artist too. I don't see how more people copying the artist style would not increase the value of originals. A smart artist here should promote that their style is staying in the dataset. It is as good free publicity as they will ever get.

It's not foolish at all. There's no value prop for an artist to advertise their work in the model as 1 of 400+ million. SD doesn't tell you anything about the art that inspired the output, no one will ever know the artists work was ever used, so this 'exposure' is as good as $0.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#185

Post by ShrimpHawk »

Timon3 wrote: post #170
quadcore wrote: post #160

Earlier quoted context omitted.

Human artists/writers are influenced by each other all the time. The flaw in this argument is the word "artist". If you remove all the pictures from the data source, the AI isnt capable of generating anything. Because it's not an artist.

Can a human "generate anything" beyond what essentially equates to random noise if they have never had any sensory input? Comparing a "trained" human brain with a "newborn" model seems strange if we actually want to delineate between what is and isn't art.

Ignoring the straw man argument here yes actually there are plenty of examples of individuals with no outside influence of art styles or references creating artworks. It's called outside art. https://en.wikipedia.org/wiki/Outsider_art

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#186

Post by jacquesm »

williamcotton wrote: post #177
jacquesm wrote: post #167

Earlier quoted context omitted.

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 Stab…

> 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 “Comp…

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.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#187

Post by jeroenhd »

sebstefan wrote: post #37

> Stability AI has already announced that it is removing users’ ability to request images in a particular artist’s style I hope it returns when they win and get rid of this legal bullying.

An artist's style is not copyrightable so I doubt it makes much of a difference. My guess is that showing good faith will make the lawsuit go over easier, because there's nothing illegal about paying someone to copy someone else's style (and not just a replica).

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#188

Post by jeroenhd »

usrbinbash wrote: post #72
antiterra wrote: post #57

Earlier quoted context omitted.

A computer program is not a person, so the argument that stable diffusion does what a person does is of limited relevance.

Is it? The model learns concepts from images, not the images itself. It has developed general solutions explaining light, colors, composition, objects and their relation to one another, facial features and too many more concepts to even begin enumerating them. How is this different from a human studying art, literature, music, etc. to learn concepts and then apply them in creating new pictures, novels or songs?

For one, a computer cannot hold a copyright so a work produced by a computer is not copyrightable, whereas a derivative work made by a human can be.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#189

Post by jeroenhd »

scotty79 wrote: post #48
TylerE wrote: post #33

Earlier quoted context omitted.

You understand that completely kills OSS as a concept, right?

Why would that be? Huge amount of OSS is released under fully permissive licenses.

Permissive licenses like "if you use this code you must also make your code available under the same license" form the basis of the world's most often used open source software.

Open licenses are not the same as abolishing copyright.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#190

Post by blibble »

ben_w wrote: post #77
sebstefan wrote: post #37

> Stability AI has already announced that it is removing users’ ability to request images in a particular artist’s style I hope it returns when they win and get rid of this legal bullying.

I don't. Information comes with many different rights: copy -right is the right to make copies; "moral rights" were mentioned in a few of my UK job contracts and that's "the right to be identified as the author of a work"; database rights are for collections of statements of fact that are not eligible for copyright but which were deemed to be worth protecting anyway for much the same reasons. Even if copyright is tot…

it's quite common in UK contracts of employment to try and transfer the moral rights to the Employer

but this isn't enforceable, they cannot be transferred

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