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

> I believe your argument comes down to “computers are super powered compared to humans doing the same thing”? Is that accurate?

No, that doesn't really touch it. The speed/power disparity between humans/computers at certain tasks are certainly a factor to consider, but the more fundamental point I was trying to make is much simpler: "computers and humans are fundamentally different, so let's stop building arguments on the mis-belief that they are the same".

> Because magnitude of ability, to me, makes no difference at all.

What is your position on autonomous AI weapons? Does that position change when there's a human in the loop? If such weapons were suddenly available to everyone, would that be functionally no different than allowing people to own firearms or baseball bats?

> It’s perfectly acceptable for a human to study the artwork of a specific person and then create their own works based on that style. Why wouldn’t it be the same for an automated process?

I'd turn that question around: why would it be the same for an automated process?

It is perfectly acceptable for a human to shoot an intruder entering their home in most states if they believe their life is in danger. An AI-controlled gun would be far more effective (I wouldn't even have to wake up!), but is clearly in a different category.

Is a human sitting on a neighborhood bench in view of your house the same thing as a surveillance camera on a nearby telephone pole? I think the answers to this question are useful when looking at the emerging issues of AI, at least to orient our basic instincts about what feels ok vs. what doesn't.

The AI software has only "learned" in the sense that it has operated on the input data such that it can now provide outputs that are of convincingly high quality to make it appear to "know" what it is doing.

Whatever the similarities, such learning lacks the vast majority of the context and contents of what a humans learns by viewing the same image, such that the word "learn" means something fundamentally different in each situation.

Also, Stable Diffusion is already on my laptop so I don’t need an Internet connection, but I digress.

You’re right, I can’t make the same art with Stable Diffusion as without. The same holds for the art I can make with DAW software like Logic Pro and without. Or my guitar and without. Basically you’re leaving me with nothing but my voice, and personally, I’m in luck because I do sing and have already put effort into getting better.

I can’t see how an image that has never existed before cannot be considered original… it might not have taken much effort, but that’s something else entirely! How is any part of photography even remotely considered original in your theory of art?

The burden is on the accuser but the accuser has been 'shredded' and that makes them all but anonymous. So if you dilute inputs enough then you can ignore the rights? There is a close equivalent to this in music sampling. The rule there is that if you want to remix someone else's production that you will have to ask for their permission, which, crucially, they are not required to give.

https://www.romanolaw.com/2022/10/14/music-sampling-rights-w...

This seems to me to be a reasonable middle ground. Once you start breaking things down further it gets harder and harder to nail down where the limit lies. In music you probably won't find any useful samples shorter than 1/32th of a beat and even that would be pushing the limits. But the rules don't say anything about how long those samples are: even the tiniest sliver would have to be accounted for: you would need permission. And yes the burden is on the accuser. But it would make sense from an ethical point of view and as an artist to just play by the rules, rather than to see what you can get away with and so even for short samples that might never be detected by that particular accuser as a rule permission is obtained.

> You’re right, I can’t make the same art with Stable Diffusion as without. The same holds for the art I can make with DAW software like Logic Pro and without. Or my guitar and without. Basically you’re leaving me with nothing but my voice, and personally, I’m in luck because I do sing and have already put effort into getting better.

That's disingeneous and you are likely well aware of it, but just to spell it out: Logic Pro 'Sample Packs' all have clear attribution and use rights attached, and your guitar is (unless it is some advanced model that I'm not currently aware of) unable to make you play like Al Di Meola without putting in the endless hours of practice. Neither of these contain a combined mountain of copyrighted artists works that you can then re-use at your discretion without attribution and if and when they do those are very carefully sourced and marked as such. So the comparison with SD doesn't hold.

> I can’t see how an image that has never existed before cannot be considered original…

Ok, so I have this little piece of software here, it allows me to extract the notes, durations and volumes of individual notes of a piano piece and then I can re-play those notes using any instrument from an enormous bank of synthesized sounds. Do you feel that this should count as original work because 'it has never existed before' or do you feel that this is a mechanical transformation and that the original creator should be able to sue me for creating a derived work? Does the mechanism of the derivation count?

> it might not have taken much effort, but that’s something else entirely

Agreed, Marc Rebillet comes to mind (https://www.youtube.com/watch?v=3vBwRfQbXkg) , but he has 3 decades of experience which allows him to create in a few minutes what would take others weeks (or they might never be able to do anything).

> How is any part of photography even remotely considered original in your theory of art?

Photography is original art when it goes beyond 'just reproduction'. My brother, who is a pretty good photographer has two 'modes' in the first one he is simply registering an event, a wedding or something else that needs to be documented. He most likely would not consider this to be even close to his best work and certainly not in the level of artistry involved. In his other mode he can spend a crazy amount of time arranging the shot, including getting up at odd hours of the night, creating special vantage points, the right time of the year to get an object to catch the light just so. In that mode he is an artist. And I'm sure he has made 1000's (or probably more likely 10's of 1000's) of shots that are somewhere in between.