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Comment by visarga | Hacker News Reader

> 90%ish of a single input image

Oh, one image is enough to apply copyright as if it were a patent, to ban a process that makes original works most of the time?

The article authors say it works as a "collage tool" trying to minimise the composition and layout of the image as unimportant elements. At the same time forgetting that SD is changing textures as well, so it's a collage minus textures and composition?

Is there anything left to complain about? unless, by draw of luck, both layout and textures are very similar to a training image. But ensuring no close duplications are allowed should suffice.

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Oh, one image is enough to apply copyright as if it were a patent, to ban a process that makes original works most of the time?

The software itself is not at issue here. If they had trained the network on public domain images then there’d be no lawsuit. The legal question to settle is whether it’s allowable to train (and use) a model on copyrighted images without permission from the artists.

They may actually be successful at arguing that the outputs are either copies or derived works which would require paying the original artist for licenses.

Then I think any work of art or media inspired by past sources would fall into this category. It's a very grey line, and I haven't seen anyone or any case law put it into proper terms as of yet.

Olivia Rodrigo is a good case study here. Good For You was so heavily inspired by Paramore that Hayley Williams was given songwriter credit despite having no involvement in its making.

So humans can already run afoul of copyright this way, the bar for NNs might end up lower.

Does "inspired" equal to "learned by software neural network"?

> Oh, one image is enough to apply copyright as if it were a patent, to ban a process that makes original works most of the time?

The law can do whatever its writers want. The law is mutable, so the answer to your question is “maybe”.

Maybe SD will get outlawed for copyright reasons on a single image. The law and the courts have done sillier things.

All the handwringing about generative AI brings to mind the aphorism about genies returning to bottles. There can be lawsuits and laws--and there may even be cases where an output by chance or by tickling the input sufficiently looks very close to something in the training set. But anyone who thinks this technology will be banned in some manner is... mistaken.

So as a code author I am pretty upset about Copilot specifically, and it seems like SD is similar (hadn't heard before about DeviantArt doing the same as what GitHub did). But I agree with this take: the tech is here, it's going to be used, and it's not going to be shut down by a lawsuit. Nor should it, frankly.

What I object to is not the AI itself, or even that my code has been used to train it. It's the copyright for me but not for thee way that it's been deployed. Does GitHub/Microsoft's assertion that training sidesteps licensing apply to GitHub/Microsoft's own code? Do they want to allow (a hypothetical) FSFPilot to be trained on their proprietary source? Have they actually trained Copilot on their own source? If not, why not?

I published my source subject to a license, and the force of that license is provided by my copyright. I'm happy to find other ways of doing things, but it has to be equitable. I'm not simply ceding my authorship to the latest commercial content grab.

> Have they actually trained Copilot on their own source? If not, why not?

People have posted illegal Windows source code leaks to GitHub. Microsoft doesn’t seem to care that much because these repos stay up for months or even years at a time without Microsoft DMCAing them-if you go looking you’ll find some right now. I think it is entirely possible, even likely, that some of those repos were included in Copilot’s training data set. So Copilot actually was trained on (some of) Microsoft’s proprietary source code, and Microsoft doesn’t seem to care.

The question is not whether there's some of their code that they don't mind being incorporated, but whether there's any at all that they wouldn't allow to be. And more importantly, not used for their own bot, but for someone else's.

If licenses don't apply to training, then they don't apply for anyone, anywhere. If they do apply, then Copilot is violating my license.

IANAL, but they likely believe their unpublished source code contains trade secrets. They may believe that training a public model is okay on published source code (irrespective of its copyright license), but that doing so on unpublished source code containing trade secrets might legally count as a voluntary relinquishment of their trade secrets (if we are talking about their own code) or illegal misappropriation of the trade secrets of others (if they trained it on third party private repos)

I seriously doubt Microsoft / GitHub would care if Copilot or a similar model were trained on their proprietary source code. An advanced code completion tool does pose any significant risk of someone building a competitive product to GitHub or any other Microsoft products.

This is an intelligence augmentation tool. It’s effectively like I’m really good at reading billions of lines of code and incorporating the learnings into my own code. If you don’t want people learning from your code, don’t publish it.

I doubt Microsoft sees fragments of Windows source code as a particular crown jewel these days. That said, some of it is decades old code that was intended for the public to see (unlike, presumably, anything in a public GitHub repository). And some of it is presumably third-party code licensed to Microsoft that was likewise never intended for public viewing. So, while it would be a good gesture on the part of Microsoft to scan their own code--if they haven't done so--I could see why it might be problematic. (Just as training on private GitHub repos would be.)

tl;dr I think there's a distinction between training on copyrighted but public content and private content.

Private third-party GitHub repos is another good example. If licenses don't apply to training data, as GitHub has asserted, why not use those too? Do they think they'll get in trouble over it? Why doesn't the same trouble apply to my publicly-readable GPL-licensed code?

I assume there's something in their terms of service about not poking around in private repos and using the code even for internal purposes except for necessary maintenance like backups, court orders, etc.

I am not a lawyer but I also assume Microsoft's position, at least in part, is that they can download and use code in GitHub public repos just like anyone else can and developing a public service based on training with that (and a lot of other) code isn't redistributing that code.

Copyright is not the only law. Something might be permitted by copyright law (as fair use, an implied license, etc)-yet simultaneously violate other laws-breach of contract, misappropriation of trade secrets, etc.

Microsoft is not training copilot on your proprietary code that you keep on your own systems, just like they are not training it on their proprietary code.

But they are not original works, they are wholly derived works of the training data set. Take that data set away and the algorithm is unable to produce a single original pixel.

The fact that the derivation involves millions of works as opposed to a single one is immaterial for the copyright issue.

If I take a million copywritten images from magazines, cut them with scissors, and make a single collage, I would expect the resulting image to be fair use. Fair use is an affirmative defense, like self defense, where you justify your infringement.

People are treating this like its a binary technical decision. Either it is or isn't a violation. Reality is that things are spectrums and judges judge. SD will likely be treated like a remix that sampled copywritten work, but just a tiny bit of each work, and sufficiently transformed it to create a new work.

If I take a million copywritten images from magazines, cut them with scissors, and make a single collage, I would expect the resulting image to be fair use.

That’s not how it works. Your collage would be fine if it was the only one since you used magazines you bought. Where you’d get into trouble is if you started printing copies of your collage and distributing them. In that case you’d be producing derived works and be on the hook for paying for licenses from the original authors.

That’s not how fair use works. It’s not a binary switch where commercial derivatives automatically require licensing. Such a college would be ruled transformative and non competitive.

Me having bought the magazines also has nothing to do with anything. Would apply equally if they were gifted or free or stolen.

That is not true. The dataset is needed, the same way that examples are used by a person learning to draw. But the dataset alone is not capable of producing images not derived from any part of it (and there are many examples of SD results that seem so far to be wholly original), so you can’t reduce stable diffusion to being only derived from the dataset. It may “remember” and generate parts of images in the dataset - but that is a bug, not a feature. With enough prompt tweaking, it may even generate a fairly good copy of pre-existing work - which was what the prompt requested, so responsibility should lie on the prompt writer, not on SD.

But the fact that it often generates new content, that didn’t exist before, or at least doesn’t breach the limits of fair use, goes against the argument made in the lawsuit.

The model can generate original images, yes, and those images might be fair use. But it can also generate near verbatim copies of the source works or substantial parts thereof, so the model itself is not fair use, it's a wholly derivative work.

For example, if a publish a music remix tool with a massive database of existing music, creators might use to create collages that are original and fall under fair use. But the tool itself is not and requires permission from the rights owners.

The training data set is indeed mandatory but that doesn't make the resulting model a derivative in itself. In fact the training is specifically made to remove derivatives.

Go to stablediffusionweb.com and enter "a person like biden" into the box. You will see a picture exactly like President Biden. That picture will have been derived from the trained images of Joe Biden. That cannot be in dispute.

You've made some errors in reasoning.

First, there is a legal definition of a "derivative work" and there is an artistic notion of a "derivative work". If the two of us both draw a picture of the Statue of Liberty, artistically we have both derived the drawing based on the original statue. However, neither of these drawings in relation to the original sculpture nor the other drawing is legally considered a derivative work.

Let's think about a cartoonish caricature of Joe Biden. What "makes up" Joe Biden?

https://www.youtube.com/watch?v=QRu0lUxxVF4

To what extent are these "constituent parts" present in every image of Joe Biden? All of them? Is the latent space not something that is instead hidden in all images of Joe Biden? Can an image of Joe Biden be made by anyone that is not derived from these "high order" characteristics of what is recognizable as Joe Biden across a number of different renderings from disparate individuals?

I can draw Biden, yes, but SD can only draw Biden by deriving it's output from the images on which it was trained. This is a simple tautology, because SD cannot draw Biden without having been trained on that data.

SD both creates derivative works and also sometimes creates pixel level copies from portions of the trained data.

Yes, and we are now using the artistic definition of “derived” and not the legal definition.

You cannot copyright “any image that resembles Joe Biden”.

This isn't about what can be copyrighted but that there are copyrighted images being used without following the legal requirements.

Can you draw Biden without ever having seen him or a picture of him? So,why is it that you are not deriving but SD is?

Just because it generates you an image like Biden still does not make it a derivative either.

You can draw Biden yourself if you're talented and it's not considered a derivative of anything.

The difference is that computers create perfect copies of images by default, people don't.

If a person creates a perfect copy of something it shows they have put thousands of hours of practice into training their skills and maybe dozens or even hundreds of hours into the replica.

When a computer generates a replica of something it's what it was designed to do. AI art is trying to replicate the human process, but it will always have the stink of "the computer could do this perfectly but we are telling it not to right now"

Take Chess as an example. We have Chess engines that can beat even the best human Chess players very consistently.

But we also have Chess engines designed to play against beginners, or at all levels of Chess play really.

We still have Human-only tournaments. Why? Why not allow a Chess Engine set to perform like a Grandmaster to compete in tournaments?

Because there would always be the suspicion that if it wins, it's because it cheated to play at above it's level when it needed to. Because that's always an option for a computer, to behave like a computer does.

You’re acting like the “computer” has a will of it’s own. Generating a perfect copy of an image would be a completely separate task from training a model for image generation.

There are no models I know of with the ability to generate an exact copy of an image from its training set unless it was solely trained on that image to the point it could. In that case I could argue the model’s purpose was to copy that image rather than learn concepts from a broad variety of images to the point it would be almost impossible to generate an exact copy.

I think a lot of the arguments revolving around AI image generators could benefit from the constituent parties reading up on how transformers work. It would at least make the criticisms more pointed and relevant, unlike the criticisms drawn in the linked article.

> There are no models I know of with the ability to generate an exact copy of an image from its training set

Is it "the model cannot possibly recreate an image from its training set perfectly" or is it "the model is extremely unlikely to recreate an image from its training set perfectly, but it could in theory"?

Because I am willing to bet it's the latter.

> You’re acting like the “computer” has a will of it’s own. Generating a perfect copy of an image would be a completely separate task from training a model for image generation.

Not my intent, of course I don't think computers have a will of their own. What I meant, obviously, is that it's always possible for a bad actor of a human to make the computer behave in a way that is detrimental to other humans and then justify it by saying "the computer did it, all I did is train the model".

In theory, you can:

- Open Microsoft Paint

- Make a blank 400 x 400 image

- Select a pixel and input an R,G,B value

- Repeat the last two steps

To reproduce a copyrighted work. I'm sure people have done this with e.g. pixel art images of copyrighted IP of Mario or Link. At 400x400, it would take 160,000 pixels to do this. At 1 second per pixel, a human being could do this in about a week.

Because people have the capability of doing this, and in fact we have proof that people have done so using tools such as MS paint, AND because it is unlikely but possible that someone could reproduce protected IP using such a method, should we ban Microsoft Paint, or the paint tool, or the ability to input raw RGB inputs?

>The difference is that computers create perfect copies of images by default

are we looking at the output of the same program? because all of the output images i look at have eyes looking in different direction and things of horror in place of hands or ears, and they feature glasses meting into people faces, and that's the good ones, the bad one have multiple arms contorting out of odd places while bent at unnatural angles.

Storing and retrieving photos, files, music, exactly identical to how they were before, is what computers do.

Save a photo on your computer, open it in a browser or photo viewer, you will get that photo. That is the default behavior of computers. That is not in dispute, is it?

All of this machine learning stuff is trying to get them to not do that. To actually create something new that no one actually stored on them.

Hope that clears up the misunderstanding.

There is no need for rhetorical games. The actual issue is that Stable Diffusion does create derivatives of copyrighted works. In some cases the produced images contain pixel level details from the originals. [1]

[1] https://arxiv.org/pdf/2212.03860.pdf

> The actual issue is that Stable Diffusion does create derivatives of copyrighted works.

Nothing points to that, in fact even in this website they had to lie on how stablediffusion actually works, maybe a sign that their argument isn't really solid enough.

> [1] https://arxiv.org/pdf/2212.03860.pdf

You realize those are considered defects of the model right? Sure, this model isn't perfect and will be improved.

> You realize those are considered defects of the model right? Sure, this model isn't perfect.

You can call copying of input as a defect, but why are you simultaneously arguing that it doesn't occur?

I don't call these defects copying either but overfitting characteristics. Usually they are there because there's a massive amount of near-identical images.

It's both undesirable and not relevant to this kind of lawsuit.

Correction: if you draw a copy of Biden and it happens to overlap enough with someone’s copyright of a drawing or image of Biden, you did create a derivative (whether you knew it or not).

is that really how copyright law works? Drawing something similar independently is considered a derivative even if there's no links to it?

It's bad news for art websites themselves if that's the case...

No that’s not… at least in many countries. Unlike patents, “parallel creation” is allowed, this was fought out in case law over photography decades ago, because photographers would take images of the same subject, then someone else would, and they might incidentally capture a similar image for lots of reasons and thus before ubiquitous photography in our pockets, when you had to have expensive equipment or carefully control the lighting in a portraiture studio to get great results… well it happened and people sued like those with money to spare for lawyers are want to do, and thus precedent has been established for much of this. You don’t see it a lot outside photography but it’s not a new thing for art copyright law and I think the necessity of the user to provide their own input and get different outcomes outside of extremely sophisticated prompt editing… will be a significant fact in their favour.

So is your mental image of Joe Biden, unless you know him personally.

If I were to take the first word from a thousand books and use it to write my own would I be guilty of copyright violations?

Words have a special carve out in copyright law / precedent. So much so that a whole other category of Intellectual Property exists called Trademarks to protect special words.

But back to your point “if you were to take the first sentence from a thousand books and use it in your own book”, then yes based on my understanding (I am not a lawyer) of copyright you would be in violation of IP laws.

I doubt it would be a violation.

Specifically fair use #3 "the amount and substantiality of the portion used in relation to the copyrighted work as a whole."

A sentence being a copyright violation would make every book review in the world illegal.

This argument's pedantic and problematic for artists; take away a human's "dataset" and processes and they are also unable to produce a single original "pixel".

If I make software that randomly draws pixels on the screen then we can say for a fact that no copyrighted images were used.

If that software happens to output an image that is in violation of copyright then it is not the fault of the model. Also, if you ran this software in your home and did nothing with the image, then there's no violation of copyright either. It only becomes an issue when you choose to publish the image.

The key part of copyright is when someone publishes an image as their own. That they copy an image doesn't matter at all. It's what they DO with the image that matters!

The courts will most likely make a similar distinction between the model, the outputs of the model, and when an individual publishes the outputs of the model. This would be that the copyright violation occurs when an individual publishes an image.

Now, if tools like Stable Diffusion are constantly putting users at risk of unknowingly violating copyrights then this tool becomes less appealing. In this case it would make commercial sense to help users know when they are in violation of copyright. It would also make sense to update our copyright catalogues to facilitate these kinds of fingerprints.

how is that any different from new human artist that study other artists work to learn a style or technique. In fact it used to be that the preferred way for painters to learn was to repeatedly copy paintings of masters.

What you and many other in the thread seem to be oblivious about is that algorithms are not people. Yes, it may come as a shock to autistic engineers, but the fact that a machine can do something to what a person does does not warant it equal protection under the law.

It seems like you're using "autistic" as an insult here. If that's not your intention you might want to edit this comment to use different verbage.

What do you mean, autism is well established as a personality trait that diminishes empathy and the ability to understand other people's desires and emotions, while having a strong affinity to things, for example machines and algorithms.

Legislation is driven by people who are, on aggregate, not autistic. So it's entirely appropriate to presume that a person not understanding how that process works is indeed autistic, especially if they suggest machines are subjects of law by analogy with human beings.

It's not that autists are bad people, they are just outliers in the political spectrum, as you can see from the complete disconnect of up-voted AI-related comments on Hacker News, where autistic engineers are clearly over-represented, versus just about any venue where other professionals, such as painters or musicians, congregate. Just try to suggest to them that a corporation has the right to use their work for free and profit from it while leaving them unemployed, because the algorithm the corporation uses to exploit them is in some abstract sense similar to how their brain works. That position is so for out on the spectrum that presuming a personality peculiarity of the emitter is the absolutely most charitable interpretation.

So, is any sort of creation that relies upon copyrighted or patented works copyright infringement? Is any academic research or art that references brands or other creations illegal? This is such a clear case of fair use that it could be a textbook example.

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