Copying Is Not Theft [video]
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I feel that "copying is not theft" is a truth that needs to be clarified because a lot of discussion around copyright and piracy tends to conflate copying and theft, which makes it natural to skew towards the point of view that the unauthorized sharing of content and ideas is an objectively immoral act, and paint the issue of piracy in terms of right and wrong, as opposed to legal vs. illegal. Whereas in my point of view, copyright law is an artificial construct that we as a society have chosen to enact, in order to support a certain model for financially compensating those who make creative works. Other societies may choose differently; copyright law is not a reflection of natural, fundamental morality regarding the sharing of ideas and creative works.
In conclusion, when I personally say "copying is not theft", I'm simply saying, let's not conflate the issues, so we can have a more nuanced discussion. I'm not advocating piracy. And I would encourage others not to interpret "copying is not theft" that way.
There is nothing moral in dictating the "democratic majority"'s point of views on everyone. And not only because the government is corrupt and that's what the top 0.01% wants, not the majority - but because imposing ANY kind of freedom restriction (which doesn't violate the Non Aggression Principle) is violence.
I'd recommend not to violate copyright (or other illegal victimless endeavours, eg. drugs), purely to stay away from trouble: the government has an armed force and can extort you even more money - or put you in a cage.
Breaking the law is often considered immoral, depending on the person.
> copyright law is an artificial construct
Any human-made rule is artificial, any form of order in a society is artificial. Copyright laws are just on a very high level, compared to other rules.
> copyright law is not a reflection of natural, fundamental morality regarding the sharing of ideas and creative works.
There is nothing natural in creativity. It's all in your mind. There is also nothing natural about ownership, it's just rules that any higher society at some point considers as necessary.
> In conclusion, when I personally say "copying is not theft", I'm simply saying, let's not conflate the issues, so we can have a more nuanced discussion.
There is no nuanced discussion about this. Theft and stealing are legal terms. If you break the laws, they apply. If they not apply, you have not broken the law. The nuanced discussion is only about the laws themselves, whether they should exist and in which form and details. But this discussion is usually about whether people are willing to accept the foundation of society itself or not. In which case you could debate "nuanced" about any law.
I think you missed OP's point; those calling copyright infingement "theft" (or "stealing") are being disingeneous to try and gain support for their argument - they're conflating legal terms about ownership with the idea of copyright infringement and they are not the same as theft/stealing include the concept of depriving the owner the use of whatever it is that was stolen.
And whilst IANAL, my understanding is that copyright infringement is a civil issue, whereas theft is a criminal one - they're trying to move the burden of the courts onto the taxpayer
If you're interpreting things strictly in legal terms: Copying is not Theft.
+edit: (And much copying is in fact explicitly permitted, in which case it's even more clearly something else. Case in point: This video is CC-BY-SA: You are permitted to copy this particular video, provided you credit it to Nina Paley et al. , and extend similar terms to people who would copy it from you)
Note that much of the world has signed the Berne convention[1], and thus most countries tend to have similar laws when it comes to copyright.
There is a very different aspect going on here: the author acknowledges and approved of this licensing arrangement. If I allow you to copy my proprietary, trade-secret autonomous self-driving software, there is nothing wrong with that. If you illegally copy it without my consent, there is. The whole point is the act of copying without consent of the owner. Adhering to licensing agreements is a different point entirely.
In many cases, it's not a problem.
In your hypothetical case, it's a civil matter.
Either way, it's not theft.
(And CC is imho a bit more than merely another (set of) licensing agreement(s). It sets up an alternate ecosystem where copying is beneficial. It has been set up by people who disagree with the erosion of the copyright system that happened in the 20th century.)
Previously I was discussing copyrights, since that is what the video is about. My statements above do hold for copyrighted information.
Unlike copyrights, trade secrets are a not something I come across very often, so I'll politely bow out and defer to your expertise on that particular topic.
With digital goods, it isn't about stealing a product. It is more about stealing an income stream or someone's time and labor. When I deprive someone of an income stream that they are able to generate without coercian (by forcing others to buy), I am stealing their income stream which is really stealing their labor and time. The object (in this case digital) is simply a proxy.
Another angle to come at this from is to take it to the other extreme. If I spend all my days creating a digital product that people want, and everyone copies it, they are stealing my labor, my time, and I had no say in it.
It is not a crime to deprive someone of their income stream, so I don't follow why that argument by itself concludes anything about ethics of digital copying. If it does, lock me up as well because I'm going to keep eliminating income streams for the rest of my life.
You can't just fire people without a reason though right? Some job rights are protected to some extent in some countries.
> It is not a crime to deprive someone of their income stream
No, but it is a crime to steal. If someone has created digital goods, put them up for sale, and you acquire them without paying, that is stealing. The fact they didn't "lose" some physical product in the process is irrelevant. You have cheated them out of their commensurate half of an even exchange they have offered. If you don't like the exchange, find it too expensive, the product not worth it, what have you, that's fine, you are free to not complete the transaction. You are not free to bypass it and gain the thing you weren't willing to pay for without paying.
Because the author has offered it at a price because they have invested time, energy, expertise, and skill to create it. That's the value.
It would be akin to saying to a cabinet maker that they are not owed money for their cabinet because they didn't make the wood, the tree did, which completely trivializes the labor and craft involved.
In an ideal world, we wouldn't need to be paid. We'd provide what we could and get what we need in return, but we don't live in that world.
That being said you're engaging in all manner of motivated reasoning to get around basic theories of value and clinging to this notion that if you could somehow get a flawless copy of a thing someone is selling that is in all other ways equivalent to the original that you haven't committed a crime, and while technically true, it utterly obliterates the notion of intellectual property. Now, IP law as it exists has many problems and pitfalls that require reform, however you are seemingly arguing that the theory of intellectual property is invalid, which is quite an interesting viewpoint for someone who apparently earns their living writing software.
In so far as the following assumptions are true:
- The world in which you live requires that you earn a living to subsist yourself - The world in which you live desires intellectual creations that can be copied harmlessly (movies, software, art, music, basically all entertainment products, design blueprints, et al) - Reality consists of a finite amount of time, of which a given individual receives a certain amount, and during which said individual must balance activities that generate income to cover the cost of assumption 1 - The reliable way for an individual to satisfy assumptions 1 and 3 is to dedicate a certain amount of time to the creation of products that can be sold
While you taking a copy of something that you never intended to buy doesn't technically cost an author a sale that would, by your statement, never occur, it nevertheless means that you now possess their creation that was made with their energy, skills, and time which are individually all expressions of their finite time on the planet, assumption 3. That is, no matter how you want to excuse it, unethical. Energy is conserved, matter is conserved, theft of someone else's time and effort to produce a thing you wanted is theft.
Intellectual property is a bit strange, as it can be copied at zero cost and effort. If material goods could be duplicated for free we would have a decidedly different society, I think.
Going back to the example of the furniture maker. If I just copy his designs roughly but procure the wood myself, learn woodworking, put in the work to saw, sand and hammer the wood into shape, would I be in the clear? What if I copy it by carefully measuring all his dimensions? What is the difference to the furniture maker if I just magically copy his furniture instead of toiling in my workshop to recreate it?
I get what you're saying, but I'm not sure if I really agree with it. If everyone just copies everything at zero cost, no-one would make any money. But on the other hand I would never have bought any furniture from the craftsman anyway, so where is the harm?
It's a conundrum. At least for me...
I think more or less yes. There are plenty of makers out there who don't sell the furniture but instead sell the blueprints and instructions on the tools you'll need and how to go about building it, and buying that would be substantially cheaper than buying the finished piece, with the obvious trade-off being you then need to actually, y'know, build it.
That being said these are very ethically gray questions. If you took for example, the rotted and destroyed pieces of a hundred year old hutch, and from them, reverse engineered how to build a new one, filling gaps along the way where pieces you don't have would be, then are you "stealing" from the original craftsman who made that hutch in the 1900's? I think most people would say no, because that artisan is probably long dead and you aren't depriving him of anything by recreating his work. In fact I think some people would say, were he alive, he might even be excited that someone took the care and time to recreate something he put a lot of work into that was destroyed by the passing of time, and appreciate the level of craftsmanship in turn that effort would demand.
However, on the flip side, if you went to a hand-craft furniture shop and somehow convinced the owner of it to let you take extremely detailed documentation on one of their pieces that would normally sell for a substantial amount of money, and assuming you had the skills to accomplish this work, took that home and used it to create your own copy of it, I think the artisan behind it at least might have some feelings about it? People who invest large amounts of time and effort into a craft like that (it's in the name, craftsman) put a lot of themselves into their work necessarily; they can't not, what with the sheer time commitment. But that's a much muddier version: some of them might try and take legal action, others might offer you a job. That's an interesting question.
However I feel it's important that we acknowledge what you're talking about is not the same as taking those detailed measurements and spending many many hours constructing an identical hutch: what you're talking about is essentially right clicking something, clicking Copy, and clicking Paste: this activity takes no skill, no energy on your part, probably some amount of time but that's time spent where a computer is working, not you, and you can go do anything from make a coffee to play a round of golf. The ethics of if you could do this same thing with a piece of furniture are largely irrelevant. You can't.
A more apt metaphor that would bridge the gap better I think would be the hobby/industry of 3D printing. You download objects that are designed by others, some paid for many not, and you plug that model into a slicer program which generates instructions that permit a machine you own to construct an object that is, more or less, identical to one constructed by the author of the file barring things like slicer settings. Many models are available for no charge; more artistic and detailed models, the author sometimes does ask for some money for them, again because of the investment of time and effort on their part spent creating it.
> But on the other hand I would never have bought any furniture from the craftsman anyway, so where is the harm?
The harm is that you have taken the fruits of the labor of another person without their consent and used them to your own end. That's really the beginning and end of it.
While some people feel there are some ethical similarities, the law in most countries certainly does not treat them as the same thing.
Very often, copyright infringement is not even treated as a crime. More commonly it is a civil matter.
(Law is complicated, exceptions exist, I am not a lawyer, this is not legal advice)
If someone is selling fresh air, the fragrance of a stew, a public performance - I am free to breath, smell, see and listen and I don't have to agree to buy what they don't own.
Independent of what politicians and lawmakers believe, a few humans out here think copying a digital good is like listening to the echoes of a concert you don't have a ticket to attend.
It is in some cases, for example, DCMA and copyright that make it illegal to copy digital goods, the topic of this thread.
But as an aside, laws are (generally) based on ethics, ethics are not based on laws, so even though it is illegal, it doesn’t conclude anything about the ethics of a situation.
There are many arguments for why piracy is unethical, but the simplest might be using Kant’s categorical imperative “a universal ethical principle stating that one should always respect the humanity in others, and that one should only act in accordance with rules that could hold for everyone” [1].
So could piracy hold for everyone? If everyone pirated Marvel movies then Marvel would not be able to make $100+M movies and these movies would not exist, which is a contradiction. Therefore piracy violates Kant’s categorical imperative, therefore piracy is unethical.
Here is where your use of the categorical imperative breaks down: creating an economy that prevents Marvel from making movies is not in itself unethical. Undesirable, perhaps, but not unethical.
No one is entitled to have their favorite business model work regardless of whether or not it makes sense in a given economy.
I believe a sound argument for copyright/DMCA would require:
1. Arguments to be made for the social utility in laws enabling such business models to exist, and
2. ethical considerations that come into play when said laws are violated (for example, a creator operating under the assumption of those laws being followed loses out on revenue when those laws are broken)
I still think there are cases to be made for both of these claims, but this might be one reason why the two sides are so at odds with each other.
I particularly like the bit from your point 2. here:
> a creator operating under the assumption of those laws being followed loses out on revenue when those laws are broken
I'm not 100% certain - I'm trying to think this through now - but I feel that this is an ethics issue, related to honesty and fairness.
It is if it's owed. It's a crime not to pay for a car, it's a crime not to pay taxes, and it's a crime not to pay your employees. I'm betting you'd lawyer up if nobody ever paid for your software.
It is in the US. Besides the copyright issue, there’s the concept of tortious interference in contract law.
Very murky argument, because pirating something doesn't mean that if the piracy option was not available, a purchase would happen. So, was the income stream really stollen, or did it not exist to begin with?
Also, the "without coercion" is also shaky. Copying (for most digital goods) is practically free/unlimited. Everyone is being coerced by force of law/jail to abide by artificially scarcity rules. I wonder about the % of University students that would be facing legal consequences if laws were always enforced when some pages of study books are copied (and these aren't even as simple to copy as something digital)
> they are stealing my labor, my time
The labor already happened, it was not stolen, the revenue speculation was just wrong. It happens to any kind of business, regardless of piracy or not, I would argue that relying solely on income that comes from a good that is replicated almost freely is not a good business practice.
Same shit with Free Software movement, FOSS is not a business model, you can make money with it, but FOSS itself is not a business model, it's up to you to figure a way to make money with it. (And nobody is being stolen of labor when someone clones a repo/downloads some package). Plenty of people made their careers with just Free Software business, and there have been DRM-free games in #1 spot on Steam.
The same applies to any other digital artifact, it's up to you to figure a way to make money, the easiness of copy-ability is part of the physical reality, "artificial scarcity" is "artificial" for a reason.
For example bypassing a NYT paywall with archive.is doesn't deprive the NYT of any income since I would never subscribe to their paper or pay them any money.
Think of it like this. If you are flicking through channels on your TV, you might find something halfway interesting that you want to watch, and so you do. But you never would have paid for it.
Same thing with piracy. You might check something out of curiosity or boredom, but never would have paid $20 for it, and me personally, I'm not going to 'rent' something that requires DRM to play, and don't want to own it on physical media, so piracy is the clear choice.
This is pretty normal human behavior, and I see no ethical issue with it. There is only the fallacy of the lost sale as a flimsy counter-argument, the rest is greed and lies.
But they are available for free. I can go to any torrent site and get anything I want.
You don't think they should be available for free, but that's quite a different argument.
> You're right that greed is normal human behaviour, but that doesn't make it okay, let alone good.
Downloading a movie to watch on a Sunday afternoon that you would never pay for is not greed, it's curiosity more than anything. It's greed to try and punish that behavior.
I'm sorry to see you've been so successfully indoctrinated.
If I steal a Porsche, I'm depriving someone of a Porsche.
If I download Ace Ventura, I'm not depriving anyone of anything.
Yes, it was! The context was very clearly piracy.
> If you want to be more specific, then say things that aren't so easily countered.
Nah. Context was clear. You simply have no argument and made an argument in bad faith.
In any event, now that you do understand the context, surely you have a counter? Or did those MPAA commercials not provide you your next line?
E.g., if I had pirated Photoshop I would not have been depriving Adobe of anything, because there was no way I would pay the several hundred dollars they were charging for it at the time.
But Adobe is not the only company selling image editing software. Rather than pirate Photoshop I bought the much less expensive Pixelmator. They would not have gotten that sale if I had chosen to pirate Photoshop.
In fact, I would use open source software instead, since I'm not in the mood for paying. I use Krita now because I don't need the extra Photoshop features
First, the premise completely ignores the costs related to producing the original work being copied. That cost of development can at the very least be assigned to each copy made. And the assertion that "copying digital goods has a zero cost" is also false: if you've managed free access to electricity, storage, bandwidth, computer equipment, etc. let me know where so I can look to moving there. To be fair, many of those costs on a per unit basis are typically very small, but they are crucially not zero.
Second. Prices are not a reflection of cost, but of value to the purchaser. Sure, when you produce a product, digital or otherwise, you are thinking about the cost to produce and trying to manage that aspect, but whatever the cost is it doesn't determine what the market will pay nor should it. If the product is highly valuable to a buyer, they'll pay more. To the degree you manage your costs relative to what the market will bear for the price, you will either profit to some variable degree or... if the market doesn't value you product for as much as it cost you... you'll lose your shirt. And yes, if I take a year to produce a piece of software and value my time producing it at say a modest $100k for my time, I could copy that software a billion times over only sell 10 copies: I'd only even break if each copy were sold at $10k each. It's true this isn't exactly a "Costs of Goods Sold" scenario in the regular sense, but it ultimately ends up meaning the same thing.
So looking at just the cost of copying a digital asset without considering both the full cost of producing the asset relative to sales tells you nothing about what is fair in pricing. To be clear: a fair price is one where the money you spend on the product is less than the value you receive from that product in return. The actual dollar amount is irrelevant to it being a digital good, tangible good, or service.
It's a natural market tax for being popular, which likely means you are making plenty of money in sales as well. Of course I'll try to reduce the ways people can get my product for free so I can make more money, but
I'm way more pissed about income tax, let's make that one illegal (as it once was).
I can understand condemning the breach of contract of someone copying something they received and promised not to copy - but making simple for massive corporations to track and go after users is downright criminal and the nth demonstration that governments are corrupted and serve only the wealthy and powerful.
Also, if I copied from someone else and I never accepted a contract with you, why should I limit what I can do?
This is definitely not the pressing problem which needs a solution.
While we're at it, let's get rid of patents too and allow copying ideas in our own country - so that we won't have to wait for a chinese rip-off in order to get cheaper products.
Just moving around bits from one machine to another isn't viewing in a traditional sense, though we might say our computer is viewing it without authorization. In which case, arrest the computer.
The intent of limiting "copying" is that it protects the incentive of people to create, and through creation, progress of "science and useful arts." This video takes an overly simplified view of intellectual property. Imagine you spend a decade researching and developing a new tech product; as soon as it's to market everyone gets to copy it and, at least from a financial standpoint, you get nothing. That means most of the advancement will be left to those who already have the times and means to be scientific dilettantes, like the 18th and 19th centuries.
For me the proper range should probably be around 20 to 30 years, but I'd be willing to entertain special restrictions in certain conditions.
Beyond that, I think that we don't do enough for the sake of preservation. I think for software to have full copyright protections it should be required to preserve a copy of the source code in the library of congress. And any library or tool licensing from the era should be restricted to the same duration as the copyright.
Ironically of course, Teams comes free with most corporate licences. You have to pay more to use alternatives, but the IT bureaucrats have deemed it was best for you. The reason alternatives exist is they're worth paying for.
And that's what I'm saying. I'm not introducing a dichotomy but you may not understand the point. In a hybrid model, high-risk ventures are funded by the government because there are few comparable entities that can shoulder that risk burden. Once the industry proves itself, it opens itself up to more private ventures. The government funds and sets goals, and the private sector innovates and delivers. That's not a dichotomy and most of the examples you provide that I'm familiar with support that model. I'm not denigrating private or public pathways, just acknowledging each have aspects that can compliment the other.
I do think it is a very salient point to bring up that when those words were written the concept of digital ownership and copying did not exist, nor did any meaningful parallels to such.
If the principle doesn't hold up now, say why. What you're saying is salient is absolutely not. It's just "old thing bad". If it's bad it could've been written yesterday or a thousand years ago; same if it's good. Why do you think it's bad? Or do you only think in ad hominem?
As I see it, the Constitution should be re-evaluated once in a while and adapted to the modern world. There are (again, just my opinion) a lot of rules in there that were very useful and important in the past but shouldn't be in there anymore, or even state the exact opposite of what they do now.
In the modern age it costs nothing to duplicate knowledge. That should be reflected in law. I'd like to see society work towards making life in society better. One of the ways to do that is to give freely to society. If we recognize intellectual property at all (I'd rather we'd not) then the time to reverting to public domain should be significantly shorter.
The obvious counter is: if I spend 5 years writing a brilliant musical, and someone else takes the script and score and produces it worldwide, where is my incentive to make such a brilliant thing? You seem to be promoting a world where people with resources can steal the best and latest free ideas out there and commercialise them. I don't see how that would work.
> One of the ways to do that is to give freely to society.
People can give freely right now. You're talking about forcing people to not be in control of their work.
There is a trend in societies that don't respect intellectual property rights and it tends towards less innovation.
What is being brought up, and seems to be lost on many, is that the law that governs copyright has an underlying principle that is not addressed in the video in discussion. That video seems to have an erroneous view of the intent of the law. As a consequent, the position in the video isn't particularly valid.
"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. " -- Thomas Jefferson [1]
This is the core of the message that Nina Paley is trying to get across here.
My understanding is as follows: Copyright in the US was always intended as a balance. You get an exclusive right to your works for a limited time (to encourage you to publish them in the first place) , and in return the works are supposed to enter the public domain afterwards (to enrich society in general). Throughout the 20th century this "limited time" kept getting stretched and stretched to the point where people worried it'd become indefinite.
Currently the balance is a bit off-kilter imo, and could use a bit of re-tuning. But it has always been about some sort of balance.
[1] https://press-pubs.uchicago.edu/founders/documents/a1_8_8s12...
I also think there is a hierarchy of principles. In this case, the constitution is the fundamental law of the U.S. and trumps any (potentially out-of-context) quip by someone, even if they are one of the authors of that document.
I provided a reference so you can confirm the context for yourself. It is not a random quip, but part of a larger thought framework. It clearly explains (part of) this particular framer's intent when writing the constitution. In general, framer's intent does seem to (sometimes) be taken into account by judges.
I agree with you that the us constitution has turned out to be very well thought out.
I do happen to disagree with 20th century legislators who very much went against the intent of the constitution here, only managing to keep to the letter by a hair.
Are we referencing the same video? I do not believe there is a nuanced argument in a < 1 minute cartoon. It's a very sophomoric argument predicated on a misunderstanding. The reason why I put the specific law verbiage in my first reply is to underscore the fact that the law regarding intellectual property is not about her central claim in the video (having access to a good) but about providing an incentive to "promote the progress of science and useful arts."
>I provided a reference so you can confirm the context for yourself.
People seem to have the misconception that the founding fathers were a monolith. They weren't. They had varying opinions on virtually every issue in the Constitution. But what matters is what was codified into law. If law could be undermined by finding a founding father with a dissenting opinion, the Constitution would have been in tatters years ago.
After having been protected for a limited time, works fall into the public domain where they remain in perpetuity. I think he got everything he wanted!
Well, until the mid-20th century, at least.
What do you mean by "the indivisibility of intellectual property." ?
I think Jefferson was making a more nuanced point, namely that someone should not be given exclusive ownership of an idea in perpetuity, and specifically rails against the concept of inheritability of intellectual property. But he also carved out a caveat that “Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society” That falls right in line with what the constitution conveys. There is nothing contradictory between Jeffersons words and what ended up in the constitution as I read it.
With all that said, again, it doesn’t necessarily matter what a single founding father thought. What matters is what they codified into law as a group, and if society has modified that law.
I’m not saying I like the current regime; I’m saying this ain’t the solution.
If we released our source code it would do absolutely nothing, since you don't have our business partners or customer base. All you could do is publish pages that look like ours
Much of the current internet is based on Free/Libre/Open Source Software at least somewhere in the stack. Of the world's top 10 most visited websites, at least one is 100% Creative Commons. Several others have large chunks of FLOSS in the software stack.
Feel free to disbelieve, but be aware that you've already been out-competed by people who DO participate in and/or make use of our digital commons (fairly or unfairly).
Sidestepping the meaning of the word "theft", our situation is as follows. There are 3 ways to finance intellectual work:
1. $
2. ads
3. nothing (and rely on gift-style work)
EDIT: I should note that I don't think the anti-copyright movement was bad during its time. They were definitely on the right side of things like Authors Guild v. Google. But I think the internet economy has gotten more mature and we now need more nuance than they provided.
HN does not agree that AI should be allowed to train on copyrighted data and says that AI companies are "stealing" other people's work.
Whether HN as a community has formed a consensus on this issue I don't know, but it's worth noting that different communities absolutely form opinions on issues because if you don't know that you can easily and unknowingly become susceptible to that community's bias.
This HN thread has a bit more detail, including links:
https://news.ycombinator.com/item?id=37879938
If you don't want to click through and just read the argument presented by OpenAI on this topic, you can find it here:
https://www.uspto.gov/sites/default/files/documents/OpenAI_R...
OpenAI may or may not believe in copyright, but they don't believe it applies in their case. From a different angle the US Copyright Office tends to agree, not accepting copyright registration for AI works. [2]
We may end up agreeing that AI models and their output should be open source or even public domain. However, I would not argue that on the basis of "because the makers do not believe in copyright". I think the copyright argument might be orthogonal in general.
[2] https://www.federalregister.gov/documents/2023/03/16/2023-05...
For your specific example, it depends on how inexact the "copy" actually is.
The four factors of fair use are:
1) the purpose and character of your use
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken, and
4) the effect of the use upon the potential market.
At some point your algorithm might be so lossy that the court rules that the amount and substantiality of what is taken is sufficiently low that your output may count as fair use. (eg. if the end result is something like [1] )
Say we argue for the sake of argument that -say- Stable Diffusion is some sort of lossy compression algorithm. it turns out that -on average- SD only notes down a few bits per image that it trains on. Thus it easily meets the amount and substantiality factor.
If you argue that SD is not a compression algorithm (and I really don't think it is), you may start to meet some of the other factors as well.
The analysis under EU law is a bit different, since there's no fair use per-se. But there's a separate rule for scraping which applies.
[1] https://fairuse.stanford.edu/2014/12/22/much-photo-need-alte...
But capitalism has failed in the era of intellectual property. Students can not afford text books or online, machine-run certification prep classes. Authors and inventors get far less money than do corporate lawyers.
I do not know of a good solution.