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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

#301

Post by williamcotton »

BeefWellington wrote: post #283
williamcotton wrote: post #134

Earlier quoted context omitted.

> If the image is freely viewable (say you can browse to it), and you just look at it, are you violating any rights? This isn't the kind of question that the lawyers of the defendants are going to ask the court. They'll more likely ask if it isn't clearly fair use similar to Sony v Universal and Authors Guild v Google and then present evidence of significant non-infringing commercial use. > It seems that violation wo…

> Authors Guild v Google and then present evidence of significant non-infringing commercial use. The problem as I understand it is in all the likely "precedent" cases for this, what was being done with the scraped data was in some identifiable way different than the purpose of the source data itself. Authors Guild v Google for instance, the argument was that Google wasn't reproducing whole texts, it just used that da…

> In this case, it would seem a very key difference is that this is Art being consumed and Art being produced, with no different purpose.

Sure, I mean, anyone can sit on the sidelines and imagine any sort of fantasy legal doctrines.

The one you’re imagining would have the courts deciding the purpose of art works.

In this case an example is easy. If someone uses Stable Diffusion to remove a person from the background of an image they are clearly using the tool for a separate purpose than copying Sarah Anderson’s works and making competing desk calendars.

But I guess your silly argument is that the doctored photograph is a “picture” and Sarah Anderson made “pictures” and all pictures have the purpose of “being looked at” and you want courts to decide this based on this reasoning?

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

#302

Post by usrbinbash »

antiterra wrote: post #131
usrbinbash wrote: post #72

Earlier quoted context omitted.

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?

It is different simply because it’s not a human. We can and often do assign laws that affect the automation of something a human can do. For example, installing a device on a firearm that repeatedly pulls the trigger creates a machine gun that is highly restricted legally, regardless of whether a human can easily pull the trigger at the same rate. Further, just because we can talk about how artists, at a high level d…

> It is different simply because it’s not a human

So? An excavator clearly isn't a human, but it digs holes in the ground by the same principles that a human using only his bare hands would, only faster and more efficient.

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

#303

Post by usrbinbash »

jeroenhd wrote: post #188
usrbinbash wrote: post #72

Earlier quoted context omitted.

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.

Same as with cameras, brushes, etc. these models are tools, that humans use.

I can setup stable diffusion on a computer, I can put a brush next to a roll of canvas, or hammer and chisel next to a block of marble. Neither of these setups will create art on its own.

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

#304

Post by williamcotton »

jacquesm wrote: post #294
williamcotton wrote: post #277

Earlier quoted context omitted.

It’s not thin ice because you can’t prove that a snare was added into a mix behind another snare and then pitched up a little and compressed a little. And artists hardly care much about it more than they care that someone has access to a certain vintage microphone. It’s just some sonic characteristic at that point. I’m not talking about even noticeable sampling of a drum hit but the drum hit being used just to add to…

Good morning! > This is where transformative allowances come in as well, if not logically because no crime can be committed without any evidence. I really don't share that particular view. Crimes definitely can occur without evidence, there are plenty of examples. The fact that nobody gets convicted, that possibly the crime goes completely undetected does not mean that no crime occurred. Let me give you one example o…

Sorry, I’m unfamiliar with civil law societies but here in the Anglosphere if there is no body, there is no murder.

Obviously a witness testimony of a person being tossed into a volcano is evidence of a body, etc.

So maybe they are locking up and trying people in Europe without evidence of crimes as being committed and having people shift the burden of proof to the accused but here in the United States we really do assume that everyone is innocent until proven guilty.

Our courts don’t expect to waste time either. Why would they hear complaints without evidence? Why would they hear a trivial complaint?

Part of the disconnection I have in these conversations is that people skip over the legal details and want to go right to some deep philosophical discussion about originality or justice, which is fine, but also super annoying because our legal system has developed a pretty sophisticated understanding of those concepts through literal millennia of trial and error.

The current legal system works so much better than whatever I hear commonly described in these comments. If you let nerds get involved the courts would be nothing but people nitpicking over the finest of useless details in some vain attempt to score argument points, as if they’ve been trained on upvotes for decades.

There’s real wisdom in legal practice and I’m always going to lean heavily on those practices when talking about legal matters like copyright.

Originality in art is a different conversation entirely and frankly even if the courts want to view 10ms audio samples as worthy of copyright (which I’m pretty sure they would not concern themselves with), from an artistic standpoint I’m fully onboard with the idea that the musician who chopped up that sample into indistinguishable parts and then made new music is the sole author of an original work.

Ethically, copyright goes too far the moment is begins to choke the public domain and that yes, this weighs the needs of a given individual against anyone else. I’m sure the first person to record a I-IV-V progression would prefer to get a dollar every time a future composer used that but that would clearly be stifling to art in general. Copyright law in the US has evolved to capture this same ethical understanding and it’s not the only embedded wisdom.

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

#305

Post by williamcotton »

jacquesm wrote: post #261
km3r wrote: post #260

Earlier quoted context omitted.

I can put a similarly simple "prompt" into Ableton to create a simple drum loop, then copyright the resulting song. What makes AI significantly different then an audio rendering engine such that only one can be copyrightable?

That the one uses generic sounds as input and the other uses specific art as input.

Stable Diffusion uses all of the art as input and this is actually incredibly important. In fact, any specific piece of art can be removed and it will still work the same and this is also incredibly important.

Both show that there is no intent for individual infringement, with along with no infringing material being produced and the significant non-infringing commercial use like family photo touch-ups, it makes for a very strong narrative for the defense!

To change lanes to art for a second…

When I’m using a tool like Logic I can coax drums, Hammond Organ, 70s analog synths, out of my laptop. I can’t make any of those sounds with my body. I need a tool.

Without Logic I would have to own a drum kit (which I happen to do), know how to play it, know how to record it… with logic I just click a dozen times and I’ve got a drummer playing four-on-the-floor.

So when I do work with a real drummer don’t tell them exactly what to play on a grid like with a drum sampler in Logic, rather they just listen in contribute. Logic has a virtual drummer that does basically the same.

How different is it to fire up another piece of software and employ a virtual painter?

Ok, shift back over to technology and creative work… what are the pros and cons of drum samplers? Don’t they put drummers out of business? Isn’t the trade-off that now a lot more people have access to nice sounding drums and that the world has more music?

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

#306

Post by williamcotton »

jacquesm wrote: post #267
km3r wrote: post #264

Earlier quoted context omitted.

No, the input for Ableton is a simple set of commands for how to control the synths to create the beat, the input for AI is text, the "specific art" maybe have created the model, but the model won't do anything without a prompt. It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itse…

> It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itself is infringing. That's fair. But if you would sample Phil Collins (just to name one famous drummer) to create a Phil Collins sample pack and you'd then create your own drum loop with it that wouldn't mean you can't expect som…

I'm going to hone in on "original art"...

What is original to begin with? What's original about Bob Dylan's Blowin in the Wind? Certainly not the form! It's a standard AB folk song. Certainly not the chords! The melody? Sure, but very bounded by Western music theory and containing a number of common American melodic tropes. The words and specific rhymes have all be used before in previous poems and light verse. He used a standard 6-string guitar with standard tuning with standard guitar chords that have been strummed in similar patterns on hundreds if not thousands of previous recordings.

Beyond the technical skill required to create something there's nothing left but just a series of choices about how to rearrange what culture has provided for you. A truly original work would be incomprehensible to an audience in a way that a truly original language would be incomprehensible to an audience. The originality, the agency of the artist, stems from the choices being made, regardless of if that tool simulates a drummer based on the placement of notes on a grid or if that tool simulates a photographer based on the input of some key words.

Now, you can certainly say that if everyone has access to Stable Diffusion that the value of its output is relatively diminished and that is of course true. The same thing happened to drum machines. No one is that impressed by a four-on-the-floor beat coming out of a laptop and they soon won't be impressed by simulated painters but this is on a different axis of examination than originality.

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

#307

Post by sebzim4500 »

pcthrowaway wrote: post #285
sebzim4500 wrote: post #221

Earlier quoted context omitted.

> Those processes are viewed very different by the law, but if we anthropomorphize computers should we not view them the same? Not only do I think the two processes are essentially the same, but I can't think of any laws in my jurisdiction (the UK) which actually distinguish between them. E.g. we are allowed to make copies of digital media for personal use.

I didn't realize it's OK to record a film in a theater in the UK

I'm actually not sure about that. It's certainly against the terms of the theatre, but assuming you are only using the recording for personal use, I'm not sure if you would be breaking any laws.

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

#308

Post by sebzim4500 »

shanebellone wrote: post #276
sebzim4500 wrote: post #227

Earlier quoted context omitted.

I think there is a pretty big difference though. In the case of sampling you can play the original against the new media and show that they are 'the same'. I have no idea how you would go about doing something similar for Stable Diffusion. "Those three pixels look different when you remove image X from the training set" is probably not a convincing argument to anyone.

So the litmus test for IP theft is "efficacy of obfuscation"? Remember, input is fundamentally required. Without that dataset, Stable Diffusion delivers exactly nothing.

>Remember, input is fundamentally required. Without that dataset, Stable Diffusion delivers exactly nothing.

That's true of lots of things that are legally considered transformative though. E.g. without all those books that Google scanned, Google Books would be completely useless.

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

#309

Post by jacquesm »

williamcotton wrote: post #304
jacquesm wrote: post #294

Earlier quoted context omitted.

Good morning! > This is where transformative allowances come in as well, if not logically because no crime can be committed without any evidence. I really don't share that particular view. Crimes definitely can occur without evidence, there are plenty of examples. The fact that nobody gets convicted, that possibly the crime goes completely undetected does not mean that no crime occurred. Let me give you one example o…

Sorry, I’m unfamiliar with civil law societies but here in the Anglosphere if there is no body, there is no murder. Obviously a witness testimony of a person being tossed into a volcano is evidence of a body, etc. So maybe they are locking up and trying people in Europe without evidence of crimes as being committed and having people shift the burden of proof to the accused but here in the United States we really do a…

I'll just leave this here for now. I'm sure you'll have plenty of reasons to say that 'there was evidence after all' but 'no body no murder' is at least to my reading simply not true.

https://en.wikipedia.org/wiki/Murder_conviction_without_a_bo...

Other observations about how legal systems elsewhere work are ignored on account of the opening sentence.

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

#310

Post by jacquesm »

williamcotton wrote: post #306
jacquesm wrote: post #267

Earlier quoted context omitted.

> It is possible for a prompt to create a copyright violation, just like if I recreate an existing iconic drum loop it would be. But, just because a tool can infringe doesn't mean the tool itself is infringing. That's fair. But if you would sample Phil Collins (just to name one famous drummer) to create a Phil Collins sample pack and you'd then create your own drum loop with it that wouldn't mean you can't expect som…

I'm going to hone in on "original art"... What is original to begin with? What's original about Bob Dylan's Blowin in the Wind? Certainly not the form! It's a standard AB folk song. Certainly not the chords! The melody? Sure, but very bounded by Western music theory and containing a number of common American melodic tropes. The words and specific rhymes have all be used before in previous poems and light verse. He us…

> What's original about Bob Dylan's Blowin in the Wind?

The fact that he claims he made it, and that this went uncontested for decades is fairly strong proof that it really is his.

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