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Comment by karpierz | Hacker News Reader

That's fair, I should've been more precise.

We can break this into (1) and (2):

(1)

The model is a copyright violation as it contains untransformed copyrighted material. You can show this by simply asking for a picture of Mickey Mouse.

To preempt a few (obvious) arguments about what it means to be "transformed", keep in mind an encrypted zip file containing images of Mickey Mouse would not be considered transformative, even if it happens to contain images that aren't copyrighted.

(2)

> then it does so to exactly the same degree as it would if it wasn't AI generated.

This is the conclusion of an argument, but I'd need to see how you show that "it does so to exactly the same degree". Right now, it looks like you're taking that as a base assumption.

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> (1) The model is a copyright violation as it contains untransformed copyrighted material. You can show this by simply asking for a picture of Mickey Mouse.

This is a strong argument and gave me pause. I think if Disney sued they could probably win.

However - examples such as this are probably quite rare. Mickey Mouse is so uniquitous that is massively overrepresented in the training and data and that has resulted in overfitting. For the vast majority of artists and almost certainly for the plaintiffs in this case, the demonstration wouldn't work. You most likely cannot produce an infringing image from a concise text prompt.

Arguably one of the outcomes of legal action might be the need for a lot of effort to remove examples similar to the Mickey Mouse example. This would be a good thing but wouldn't prevent AI image generation from broadly doing the things that the plaintiffs want to stop it doing.

> (2) but I'd need to see how you show that "it does so to exactly the same degree".

Not sure I follow? If I produce an infringing image and a court agrees it's infringing then I'm liable. It doesn't matter how the image was produced. I don't see what there is to dispute here?

I think we're agreed on (2)

For (1), I think it's handy to think of an encrypted zip file that contains a bunch of images. If you give it a valid password, it'll give you a corresponding image. If it produces an image that violates copyright, it clearly violates copyright, even if most of the images contained in it don't.

It's possible that if the model required sufficient instruction to reproduce Mickey Mouse ("create a line from (0,20) to (20,30) of thickness 2, then a line from ..."), and could not do so without that, then the argument wouldn't apply. And there's definitely a grey area once we're outside of the territory of reproducing images. But we definitely aren't anywhere close to that with these models, and looking at the "AI Safety" work, it doesn't seem possible to get these models to "behave".

> This would be a good thing but wouldn't prevent AI image generation from broadly doing the things that the plaintiffs want to stop it doing.

Yeah, I agree that the plaintiffs aren't suing solely because the model can easily regenerate their images. But I think we'll find its insanely hard to get these models to avoid producing copyrighted images. They may be forced to license the training images.

You directed the model to create an image of Mickey Mouse. You would also be the one who would then decide to 1.) hang that picture on your wall which is totally legal even if you photocopied a still from a Disney cartoon or 2.) put that image on a t-shirt and sell it.

You, and only you, are liable.

I don't think this is really a legal interpretation.

If someone was distributing a password protected zip-file where if I type in "Mickey Mouse", I get a photo of Mickey Mouse, the zip file violates copyright. It doesn't matter that the underlying representation of Mickey Mouse is distorted in storage and recovered later. It doesn't matter that in order to retrieve the image, I have to go through a series of operations.

Of course, if I opened the zip file and put the image on a t-shirt, I would also be violating copyright. But the zip file itself is copyright infringing.

If you print out the 1s and 0s that make up the zip file and sell that on a t-shirt then you are not infringing on a copyright. If you buy that shirt, scan the 1s and 0s, unzip, print and sell the resulting image on a t-shirt, the you are infringing.

At this point we can just wait until the courts clarify this for you because you seem to be missing a fundamental aspect of how our legal system operates. I’d much rather go and watch football.

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