Judge Dismisses Copyright Claims Against AI Image Generators
petapixel.com
petapixel.com
This is where I think the judge misspoke. "Copyrighted" does not mean registered. Copyrights attach at creation and does not require anything of the creator. What the judge is referencing is the fact that registered copyrighted works are given additional protections, notably the award of attorney fees in disputes. But the fact that a work was not registered, what the judge incorrectly describes as "copyrighted", does not mean it is outside copyright. All the same rules apply governing how the material may be used or not used. You just don't get as money when you sue over a non-registered work.
I would hazard that the vast majority of copyrighted works are not registered. Every holiday photo taken is copyrighted. Every word typed on HN is copyrighted. Virtually none are registered. That doesn't mean such things are public domain, free for use by whomever/whatever runs across them online.
Aren’t there visual art in the public domain?
INAL but the judge’s ruling seems technically correct, so what am I missing?
Yes, photos taken by people working for the government for example, and anything shared with Wikipedia should have a license for free use (typically CC0) [0] That’s an important, valuable part of all images, but a very small segment overall.
The vast majority of images (holiday photos, posts on social media, Deviant Art, etc.) are not in the public domain, even if they are online.
[0] https://en.wikipedia.org/wiki/Wikipedia:Image_use_policy#:~:....
This is a huge leap that would change copyright law dramatically, even for humans.
Youre asserting that copyright doesn’t just protect from reproduction, but from use as an example to learn from.
I think this would break copyright altogether. What musician or artist can say a work is 100% original and does not incorporate any details or concepts from work they’ve seen / listened to / read?
I know people hold that position, but it’s important to be transparent that applying copyright to training/learning (in addition to output) would be an overhaul of copyrigh, not a clear and obvious application of the law as it stands.
Which, I don’t think that’s an inherently absurd statement. I mean, at some point humans physically exist, so a sufficiently complex artificial being could exactly replicate our physically processes, and it would be hard (imo) to argue that such a thing isn’t a person.
But I don’t see the non-big-leap option. Either we admit that machines can actually perform creative works which are their own ideas, or we call the thing they do a derivative work, and we admit that we can’t just eyeball the difference between an original work and a derivative work anymore. That there’s something intrinsically special about having a human in the loop.
Why do you think humans can do that, and that what we call “original works” of humans are not just mechanical transformations of the human’s inputs.
How, in a universe of deterministic physical laws, is it possible for a human to do anything else?
This presumes that an input having influence on an output means that the output qualifies as a derivative work of that input. A work being in some way derived from another work does not mean that it is a "derivative work" for the purposes of copyright law. Many artists want to make this presumption, but IMO it's extremely dubious as a general claim. It is likely that when this all shakes out, specific works will be able to be established to be derivative works of specific other works, but simply being an input will not cause that. (caveat: IANAL, but I do have a law degree and IP experience)
That would be like requiring human artists to enumerate exactly every single influence on each piece of art they make. Did they see a painting by so and so at six years old that had a 0.1% influence on them? Better include it too.
This is just an attempt at a landgrab by idiot copyright maximalists.
But I do suspect that there are two overlapping schools among the most vocal supporters of this technology.
- Those who think that generative AI is so wonderful because they have a vested interest and/or have bought into the most breathless hype
- Those who more or less think copyright shouldn't exist in any case
I still believe a little bit in Jefferson's vision. It's just that that has so little to do with copyright that we're probably not even talking about the same thing. He envisioned copyright as being an incentive to create and do new things, to learn new things.
And here, as it would be used, it would shut down new technologies and quash new ideas. Clearly, such people are doing copyright wrong. I am not religious, I do not believe in "sin", but if that word did have any real use, it might be strong enough to describe those who would misuse copyright.
In any event, Jefferson was granting a very limited privilege and not describing a fundamental human right. This privilege was granted by the people, and the people do have the right to revoke that privilege if it continues to be misused. This, I think, is all the warning the misusers deserve. A comment that will be read by hardly anyone, that they will surely never see, and which will give them no headsup at all.
In the way in which you literally must make a copy of the dataset to use it in training, and that literal copy if not excused by fair use analysis including consideration of the downstream purpose, is a violation of copyright.
AI companies argue that insofar as they are copying, they are only making ephemeral technical copies.
US fair use analysis includes purpose, so copying which would be fair use for one purpose can cease to be when the purpose changes.
Since this is a case under US law, and the US is not currently a member of the EU, EU law is somewhat tangential.
- In the context of specifically training an AI-model under EU law: -
Article 5(1) of the Directive 2001/29/EC [1] is argued to apply. Of course, if sued, AI companies still need to show that their use is otherwise lawful (which should be fairly easy, since they actually do not retain anything remotely resembling a copy at all)
- In the context of specifically training an AI-model under US law: -
The purpose of the copy can be argued to be non-exploitative, incidental, for the purpose of enabling technology, and temporary.
By contrast: Google Books even argued that permanently retaining entire copies of books wholesale was fair use [2], provided they didn't provide copies of those books to 3rd parties.
OpenAI argues that there's no way they're doing anything even remotely close to that. [3]
Disclaimer: IANAL, YMMV.
[1] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX...
[2] https://en.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google,....
[3] https://www.uspto.gov/sites/default/files/documents/OpenAI_R...
See also:
[4] https://news.ycombinator.com/item?id=37879938 Previous thread where I looked up a bunch of sources.
Every day, I commit a huge number of non-criminal actions. So as long as I have some non-crimes, and I guess it doesn’t even need to be the majority under this standard, I’m fine to commit a bunch of crimes?
> The judge has offered the plaintiffs an opportunity to amend and clarify their theory as to how Stable Diffusion operates its training data.
Since they are allowed to amend part of their claims, it seems more like the judge is just asking them to be a little more specific about which copyright works were included.
The issue here is that the artists are making broad claims that DeviantArt infringed all of their works (by letting them be used as training data), even though they didn't register all of their works. Only some of the artists that are suing registered their works, and they may not have registered all of the works they are suing over. That's what the first sentence in the next paragraph is about: "[E]ven if plaintiffs narrow their allegations to limit them to Output Images that draw upon Training Images based upon copyrighted images..." The judge didn't misspeak here.
> registered before one can sue for infringement.
It's a little unclear quite what it means for a work to be protected if you don't actually have any recourse when infringement occurs.
> Title 17 U. S. C. §411(a) states that “no civil action for infringement of the copyright in any United States work shall be instituted until ... registration of the copyright claim has been made in accordance with this title.”
> ... however, a copyright owner can recover for infringement that occurred both before and after registration
Far more then that, it's an absolute show-stopper for any potential lawsuits, as it's really unlikely any potential litigant will be able to prove that even a large majority of the images have been registered, and thus eligible for a lawsuit.
Well, with the registration issue. They still have to prove us of an exclusive right and overcome any argument that the other side puts up that the use involved fell under fair use, but they'll have dealt with the threshold issue of “are we allowed to sue over the works we are alleging were used".
Based on what legal reasoning?
You need to register prior to bringing a claim. That isn't a big deal and can be done easily after any alleged infringement. But to get the attorney fees you need to have registered before the infringement occurred, something you cannot fix after you decision to sue.
Then to split hairs yet again, was the work registered at the time it was copied by the AI, or are you suing over infringement that occurred after a late registration? Are you claiming it was registered when the AI was trained on it, or are you claiming registration during the work's subsequent use by the AI after the training process? Maybe you can get attorney fees despite late registration if you can prove ongoing infringement after the pre-registration training process.
Tail end of the article:
>However, the judge allowed Andersen’s complaint that her 16 copyrighted works were used without her authorization to move forward.
I'm not loving this headline.
(edit: stamped comment w/ the current headline to be safe)
Again, I don't remember what the exact description was, but I remember it jumping out as obviously wrong (a layman's interpretation of a neural network). Feel free to go over that and it should be pretty obvious how the claims could be amended. Barring that, just wait for the filing because I'm sure the plaintiff lawyers will be jumping all over this.
I get the emotional appeal to companies are using my stuff without paying me or even crediting me. But, as I understand it, works are normally considered derivative of specific works—not some large corpus.
The argument as it went went like this. Is the theory that no infringement has occurred believable, or can it be said as a forgone conclusion that over the course of the operation that some specific copyrighted work has been infringed on at some point in time and that the operator knowingly were aware that such cases was likely to have happened.
It is true that many lawyers and legal experts thought that the pirate founders were immune to such claims since usually one need to produce specific cases of specific copyrighted works in order to find someone guilty of assisting. The case however illustrated that such requirements are not always needed, and the Swedish supreme court did not feel it necessary to analyze it further.
Though in this case, I assume that a great many lawyers would argue that it's hardly a foregone conclusion in this case.
AI developers has also started to add filters and other techniques to remove outputs that are too similar to existing works, which is both a good thing and a bad thing. It shows that the tools do output such works (as otherwise they wouldn't need to filter it out), but also show that they are working to minimize it. Courts would have to look at it and decide if such efforts are an admittance of the issue or if the mitigations are enough.
In this specific case, I doubt such discussion will occur at this point since the main point that the judge brought up is that the copyrighted works need to be registered first at the copyright office before it can go any further (except for 12 works which already are registered).
How is training an AI any different than "training" a human? In the human case, isn't any court case really based on the output (my art looks like previous work), not the input (I saw some art somewhere)?
I feel like I'm missing something (obv IANAL).
If a line appears on the page, it’s because that’s your intent. For an AI, when a line appears, that is always someone else’s intent.
AI can only copy.
I mean. Do we really need to go over all the reason why an art scanner that copies art and maybe paints it differently is fundamentally not the same as a human learning to create art?
That's just plain wrong. AI can generate things that are not in the training set, hence it can not "only copy" (on the other hand, I could understand trying to argue that AI can only create pastiche, or that it "uses" training examples in a fundamentally different way than we do).
Fundamentally, AI image creators stitch together images, then try to apply an art style.
You might call it “unique” because it stitches things together wrong (hello 10 fingers on one hand), but it is still fundamentally just copying, pasting, and then deforming lines together.
People claiming that AIs understand what they’re doing and that what AIs do is not fundamentally copying and pasting are the ones who have the burden of proof here.
That's called "photobashing", very common to see used by concept artists. Also, it's fair use.
So now you've got a bigger problem in that almost all concept artists are engaged in theft I suppose? Since they are "only" copying, pasting, and then deforming things together?
It is also massively frowned upon in art sharing circles.
[[citation needed]]
>a somewhat ambiguous grey area at the moment
That's a funny way of admitting I'm right.
>It is also massively frowned upon in art sharing circles.
Who gives a shit? What part of "commonly used in concept art", and among professionals in drafting and conceptual stages in general, do you deliberately seek to not understand?
You mentally unwell or are you just an internet troll?
I am not the one arguing that a computer has thoughts, feelings and intent as you are here. It is you that is deliberately attempting to misunderstand through ignorance, lies, and insult.
https://www.owe.com/is-fan-art-legal-fair-use-what-about-mas...
Your “carte Blanche fair use” claim is nonsense. Copyright owners can, in fact, today stop derivative works that they know about, including photobashing.
By your own admission, AI is barely doing photobashing, so is very obviously not creating original works and is subject to copyright claims.
It gets tiring listening to HN AI enthusiasts pretending that AI is an actual comparison to human intelligence when it’s actually demonstrably a specialized search engine that does little more than copy and paste. If this were not the case, then:
-An AI would be able to feed itself without becoming shit tier nonsense
-An ai would be able to create materials not discernible from its training material
Neither case is true for any AI, including diffusion models.
Since you seem to not be aware of this: Fair use is an affirmative defense. By definition nothing I have written is therefore "carte blanche" as no defense of fair use can be ever said to be "carte blanche". This is pure sophistry on your part and transparently so.
>Here’s an article specifically on the legality of photo bashing
And mashups, photobashing, and many things likewise, remain legal and with fair use defenses in the courts as precedent. You continue to reach to any dishonesty or deflection including projection to avoid dealing with any of the points anyone has brought up.
That it doesn’t copy it’s very easy to prove: ask for something that is not in the training set. Does it generate it? Then it’s not a copy.
“Copy-pasting and deforming lines” is such a generic description (and to a certain extent a misrepresentation of what is actually happening) that I don’t see how it’s useful, or relevant. Even if we supposed this was true, you would be claiming that many of Duchamp’s works or potentially Arcimboldo’s or mosaics or collages are “just copies”.
>humans copy techniques
And as I already addressed, when humans are creating, there is real intent. When an ai does it, it’s a copy and paste with no intent.
What is your actual intention here? Where does the "intent" in humans come from that AI doesn't, even when commanded by a human to perform something?
If you ask an AI to train itself from its own images, it’ll always actually become worse using its own evaluation.
If you ask a human to train themselves, the human will notable become better of their evaluation.
AIs are fundamentally limited to their training set. Humans are not.
The fact that you can tell an AI to draw a specific thing, and it’ll steal content from other people doesn’t result in the AI having uniquely created an image. It has searched and blended strings together. That’s it.
Diffusion models are exposed to a blank canvas and then instructed to produce something. At no point are they looking into a database. They simply produce an image that will score highly in their aesthetic estimations.
Train an AI just on a few techniques. Then a couple fundamental stock photos with nothing but the subject. Then have it generate things outside of the realm of the stock photos recombined in a general style. Let us see your completely unique and unpredictable results.
Exactly dude.
The human did it.
I don't know where I fall on the issue myself, I think there's many good arguments on both side, both in pure IP terms and economic ethics terms.
A good counter to that is that the training data that was chosen as an input, and the prompt, are sufficiently original to count as their own work. Kind of like how an artist might use a copyrighted stamp to create their own work (Campbell soup cans).
And a good counter to that is that a translation of a book into another language is still considered a derivation of the original work, not its own work, despite requiring a whole lot of creative human input on the part of the translator.
I don't know!
At the end of the day, it's all about legislation and case law--and judges making calls on the borderline cases, which creates new case law. It even plays into whether models themselves are copyrightable which, in turn, depends partly upon whether certain doctrines (like "sweat of the brow") apply under current copyright regime.
Styles would seem to be more in the trade dress / design patent side of IP law. Apple’s famous 22-element iPhone design patent, etc.
But it’s hard to imagine an artist reducing their style to clearly defined elements and applying for protection. “A geometric grid or squares and rectangles with white background and black lines extending entirely across the canvas horizontally and vertically. Some grid rectangles are filled in primary colors. The square intersections of two black grid lines may be filled in primary colors. At least some of the grid lines are spaced irregularly”
You're one of those people who think that if you can imagine something and then describe it poetically, that this has any relevance to the real world that the rest of us inhabit.
So clearly there is some threshold of "transformativeness" which an AI must possess in order to be trained on one image and produce a different one that is considered a new work. Where exactly that threshold lies is difficult to define from a legal perspective.
Separate to that is the issue of producing new works that are too similar to existing works you've seen. If you do that as a human then you're liable for copyright infringement.
I don’t think I want to live in that world.
None of that covers the idea that observing a copyrighted work is a violation of copyright only made acceptable by an implicit license. As the link you posted notes, that’s not what an implicit license is.
1. Copying is theft (contents of a CD [software], movies, stuff on a website sometimes, etc)
2. Copying is not theft (VHS copies of broadcasts, cassettes, etc)
Problem is "implied license" (eula-roofie) where we've, without any good reason I think, decided that,
(a) Copying is theft when someone unilaterally declares what you buy to be different from the medium (CD vs what's on it [software, movie, etc])
(a)(2) except when it's a really old medium like a book which you're allowed to quote, and use in derivation, but don't you dare "quote a movie" by copying portions off that DVD or blu-ray because that's different. Shut up is why.
(b) Copying is theft when someone unilaterally declares their putting something up to view, which necessarily requires copying to view (sent over internet), can't be copied for derivative fair use
(b)(2) except when it's over another old medium like public broadcast because... fuck you? I haven't a clue myself how this makes any sense and I suspect it is because "it doesn't".
(c) Copying is theft if you take the copy sent you over the internet and do anything with it somebody unilaterally declares they don't want you to be able to do
(c)(2) except if it's an old medium, like a book, where you can borrow it and quote from it and do all the fair use stuff, or borrow a picture, or a painting, or...
All the fair use and copying and other sensible stuff without this weird "implied license" stuff doesn't exist for formats we've had before to the extent it does now. These formats, in principle, are still just "you get a copy of a thing on some medium", and yet we have two completely different laws based on this pure fiction of an "implied license" that declares you can't copy even portions of one on some format because... because.
I am trying, desperately, to explain there is fundamentally and in principle no difference. The root of all of our problems and why the law doesn't make any sense is the pure fiction that there IS a difference. And I feel like a goddamn madman yelling in the streets trying to explain something that feels so dog gon obvious to me but seems like is obvious to nobody else.
You can, but it would be more correct to argue that memories in a human brain are not copies under the law at all, and so need no license (or fair use analysis) in the first place. This has different results than an implicit license argument, especially when there is an explicit denial of license or an explicit license which is also explicitly bounded to exclude any rights not explicitly licensed.
As a society, we agree that you, a human, copying art you’ve seen is original (or at least derivative enough that it warrants a new copyright).
We agree that a photocopy machine, or rather a human operating one, is copying art in a way that is not creative enough to warrant a copyright — so the human goes to jail.
As a society, we have not agreed upon how transformative a “work” from a generative AI has to be to count as original, or even if it can. A recent decision claimed that no machine work without human effort would count — ignoring the effort to find good prompts, pick an image and edit it further. An AI is different because no much was “trained” to make art before AIs: some animals were (elephants famously), and who owns their work is tricky — there’s a case of a photo, a selfie actually, taken by a macaque that is really interesting in that regard.
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
My recommendation would be to have a similar system to what we have for music (and I think plays) where there are two or three “authors”: the person who wrote the score, optionally the person who wrote the lyrics, and the interpret: the singer. It gets really fun when you have orchestras, animals involved in making music, or sound-sampling like in RnB.
We could have original human authors and AI adaptors, each paid based on use. If I like your work, I could commission OpenAI to make “a portrait in the style of alistairSH” based on your DeviantArt work, but of my mother (whom you’ve never met), using photos that I’ve uploaded of her. I can pay OpenAI, who would pay you. Style vs. theme could be separated with current AI technology, although that could get just as complicated as every intellectual property process very fast.
The monkey case seems fairly cut-and-dry to me - the monkey didn't steal the camera (as often reported) - the photographer engineered a situation to get the result (he set up the camera, the tripod, and held onto the tripod so the monkey wouldn't steal the whole rig). It's his art. If the monkey actually stole the camera, then it's nobody's art - just a random occurrence.
If an artist orchestrates a group of humans to create art, the art belongs to the artist, not the group (as far as I know - I'd love to hear otherwise).
I guess for me, given today's technology, I don't see an "AI" as any different than a Rube Goldberg machine hurling paint at a wall. A human had to create the AI and a human had to prompt the AI, one or both of them own the art. And in all cases, the art is always based on something the human saw previously. No art exists in a vacuum.
And I agree that a system like music rights might be appropriate. The AI author, the AI prompter, and probably anybody involved in the training data, all have some right to the output. Then the question is what % to each, but that's solvable.
It presents a sort of mirrored view of the GenAI issue: The human photographer does not get credit because the monkey is deemed to be the "agent of intent" rather than him, presumably because it's a living thing. If a photograph was triggered instead by a human tossing a rock onto the shutter, no one would claim that the rock now holds the copyright!
Interesting thought experiment to replace the monkey with other "organic agents" and some method for them to trigger a photo: A squirrel? A lizard? A cockroach? A slime mold? At what point is the organism so "simple" that you say it was just part of the system/mechanism?
Then on the artificial side, to replace the monkey with different mechanisms (as was your point): A photocopier seems quite different to a GenAI model. At what point does the human who set up the situation stop being the "agent"?
Relevant concept of the Intentional Stance: https://en.wikipedia.org/wiki/Intentional_stance
EDIT: Or at the far end of the spectrum, what about "art" that is made from DNA activity?! Does the copyright belong to the DNA? https://www.labiotech.eu/trends-news/gene-craft-laurie-ramse...
It just seems obvious to me that "human made thing to transform some set of things into a composite+transformation of those things" is fair use if fair use is to make any sense at all. Since analogously, like you said, in the same way you are taking your experience including experience of copyrighted stuff as a set of things you are drawing upon producing something of your own. All art is derivative.
It makes zero sense to me at all that it's suddenly a problem that art is derived if, instead of artist directly painting something, artist sets up some device that paints something. In both cases "human takes inputs and produces something unique" (not a copy, not a scanner, in case that was not clear from context).
Unless I'm missing something too, but based on what I see so far I just feel like I'm from mars and don't belong here.
I think a big difference in how this tech makes people feel is the amount of effort required. It's a problem we see with technology in other areas, too: it's not (much of) a problem if a cop sits outside a suspect's house for a few hours to monitor their behavior. Most people think it would be a problem if the cops pointed a camera at the house 24/7 for months. Pretty much everyone agrees canvassing society with cameras and creating a public space surveillance panopticon is bad. Where's the line?
Similarly, if some artists spend years learning the craft and mimicking a couple of styles with a relatively small output, it's not a huge problem. The scope is small. But if everyone on earth can do it to anyone on earth at massive scale just by typing "in the style of ..." to an AI, does that start to be a problem?
We've got much bigger problems though but if we, we as people generally not specifically you, can't even agree on something I see as so fundamentally basic bringing up things I think are problems would start war
Aye, there's the rub ;) How do you define "too similar"? If I invert the colors of Munch's The Scream, is that an original work? What if I pass it through a computer program I wrote to swirl it around in a spiral? I think those are clearly derivative works--you put the image in as input, put it through a mechanical transformation process, and get the same output for the given input. That description also applies to AI.
> these algorithms generate some general idea of the things it's trained on
Well, be careful here. AIs don't generate ideas. They take inputs, do some mechanical work on them, and output something derived from the inputs. There are no "ideas" involved here, it's a(n extremely complicated) mechanical transformation.
(To repeat myself, I don't know where I stand on the issue. I think there's good arguments on both sides.)
... Same ways I do for humans. That's why I wrote "the same as for people" that line was supposed to contextualize everything else I wrote and somehow it hasn't.
edited to fix a screwup. because somehow I swear I hit "copy" but it didn't copy
> The line is pretty simple for me...
When things seem so obvious and simple, it can be a good mental exercise to try to put yourself in the shoes of the "other side" for whom it also seems obvious and simple.
While never my main thing, I've worked as a professional artist and know people for whom art is their livelihood. The holy grail in that world is to create a unique style that will command a premium: an art director decides your style is perfect for their new campaign, a building designer decides your style fits the lobby of the new building, etc. This style is the result of years and years of refinement, false starts, watching trends, etc. And this style is why they get paid, and how they feed their family.
When you tell such an artist that now any schmuck can create art in their style just by writing "In the style of..." you should understand that —especially to a non-technical person—the end result is just a slight deviation of from a copy machine. To them it seems "pretty simple" and "obvious" that this is just a fancy way of stealing.
(And I'm not taking sides here, just saying that step one is to realize that the issue is not simple, and is thus super interesting.)
I would if I could but as I keep tryin to explain I can't because it requires I believe something that's a contradiction.
Just because it's a contradiction that makes ya more money don't mean it isn't a contradiction. Also I am that non-technical person.
The question is... Is fair use an exclusively human right? For example, we have many rights that do not extend to our possessions. Animals have no protected right to life or liberty. The human rights enjoyed by their owner do not flow to them.
Similarly, just because a human has a right to fair use, do AIs?
If the question is in how biologically we learn compared to and AI, the answer is that humans don't learn by calculating math in order to determine how pixels relate to each other. Humans uses chemical signals between neurons and neuron activiation among other things in order to approximate the concept of what we consider to be learning.
I find a similar and equal important question when asking whats the difference between an AI learning and a human learning, is to ask whats the difference when a computer remembers information by storing it on a file compared to a human remembering information by storing it in long term memory.
Judge is also letting the 'unauthorized use' charges move ahead.
To me, this feels like the right way to make sure the questions at the heart of the trial are satisfied by the results of the trial. SOP, for sure, but it definitely could have gone the other way, with the judge just throwing it out altogether, so I'm glad this is moving in this direction, instead.
Lots of data they trained on is available for purchase (e.g. artists often sell prints or reproduction rights, the books in books3 are widely available, etc). It's my understanding that companies like Stability and OpenAI did not attempt to determine if the data they trained on was available for purchase and then buy a legally purchased copy for training. That might cause them to run afoul of fair use doctrine in the US (not sure of other jurisdictions).
See these excerpts describing fair use for copying library materials [1] (many of these collections are being released by groups referring to themselves as libraries):
> Copying a complete work from the library collection is prohibited unless the work is not available at a “fair price.” This is generally the case when the work is out of print and used copies are not available at a reasonable price. If a work, located within the library’s collection, is available at a reasonable price, the library may reproduce one article or other contribution to a copyrighted collection or periodical issue, or a small part of any other copyrighted work, for example, a chapter from a book. This right to copy does not apply if the library is aware that the copying of a work (available at a fair price) is systematic. For example, if 30 different members of one class are requesting a copy of the same article, the library has reason to believe that the instructor is trying to avoid seeking permission for 30 copies.
> The copying, whether performed by the library or whether unsupervised by the library patron, cannot be for a commercial advantage. This means that the library (or a copying service hired by the library) cannot profit from the copying. In addition, the copying for the patron must be done for purposes of private study, scholarship, or research.
[1]: https://fairuse.stanford.edu/overview/academic-and-education...
That quote from Stanford's library is not discussing fair use doctrine in general, but rather is stating what is permitted in those specific circumstances. There are plenty of instances of fair use where the underlying work used was available at a fair price. That's the whole point of fair use law: some use of a work that is facially infringement escapes liability because the particular use is considered fair.
With the "edge computing in AI" push (offline processing on phones and the like), we might see soon enough.
Five billion images in compressed lossy format can easily fit into an active program. The only variable is quality. Five billion images in the original format and quality is a different matter, but then that requirement for copyrightable would be drastically insufficient.
One do not need 2 bytes per images if one million of images are blank, even if they are uniquely of different sizes. The amount of bytes to represent one million blank images in code is very few. One only need to store the unique aspects of the images, and if one compresses the images then the range of uniqueness drops based on the quality required.
Very unique images will naturally have larger footprint, based on the quality that one want to retain.
Like look how expensive AutoCAD is, why wouldn't Adobe charge that sort of money or more to access image gen if them and 2 other companies max can possibly provide it.
Sorry but at least with open models we all can benefit, you download it once and its FREE FOREVER you only pay for power used. It's petty and short sighted to try and take that away under the guise of "ethics".
> The three artists — Sarah Andersen, Kelly McKernan, and Karla Ortiz — immediately ran into problems as two of them — McKernan and Ortiz — did not register their works with the U.S. Copyright Office.
Two of them got bounced, Anderson remains.
> Judge Orrick writes that it is “unclear” as to whether Stable Diffusion holds “compressed copies” of the images and points to the defense’s argument that the training dataset, which contains five billion images, can “not possibly be compressed into an active program.”
Once again, regulation that's needed is complicated by the fact that people in power do not understand how this shit works.
However:
> The judge has offered the plaintiffs an opportunity to amend and clarify their theory as to how Stable Diffusion operates its training data.
And:
> However, the judge allowed Andersen’s complaint that her 16 copyrighted works were used without her authorization to move forward.
So the case is still developing.
However, this is frustrating:
> The problem for the artists is that the training data for these programs is a black box. Outside of LAION, very little is known about what exactly went into training AI image generators but it is widely assumed that the companies did an almighty scrape of images on the internet which included taking copyrighted and copyrightable pictures.
I'm not sure if the publication stated "widely assumed" here because of legal reasons or because the author doesn't understand this either, but the entire crux of Anderson's case here is that if you include the proper prompts, you get comics out of these generators that strongly resemble hers, in both style and content, which are copywritten. That an generator can do that basically requires that a good amount, and I mean a LOT of her comics were pushed into the training data, and not only that, but were tagged explicitly as her work. Given how much of LAION is scraped from social media, this is not surprising.
In order for the generator to know what Sarah Anderson's style looks like, her comics must be in the data set. Period, paragraph.
My read on the case is that it happened, John made a big public outrage post, and then gradually after news interest died down, more facts were revealed that made it much more obvious that oculus was in the wrong but nobody cared anymore.
It's also not relevant to making an ai model. That is at best relevant to producing a similar output using an ai model
This an entirely new schema and the endless slap fights between people trying to say "well the computer is just learning like a person does" is just, bafflingly, wildly wrong headed. No it's not. A person learns so they can accomplish a goal, and an ML algorithm by it's nature wants nothing, it is incapable of want, versus the people who are saying "well ML lets people copy other people" which is also wrong headed, because it isn't copies, it's remixes and re-imaginings of similar material are just not productive. On the one side people trivialize the act of learning how to art being just looking at shit and reproducing it, which is just wrong, completely wrong, and on the other side people think it lets the ML model copy artists, which it dooooooes, kind of? But that test also fails because they aren't strict copies and them being copies isn't the goddamn problem. The problem is the style, the vibe, the unique look of a given creative is trivialized into something you can get from stable diffusion after a few tries with the right prompt. This isn't a problem because Sarah Anderson lost a sale or whatever the fuck. It's a problem because it completely undermines the notion of the output of paid creatives having value, which is already a shaky proposition for most people and why tons and tons of prominent creatives cannot earn a living via their creations. This is going to make that situation even worse and no matter how many times this is explained to people, they just run back to this "well I wasn't going to buy things from them anyway" and the entire thing makes me want to fucking scream.
All that to say: AI is not AI, it's ML. ML is not learning like a person does, it's fundamentally different, stop equivocating. If you're so determined to cheer on as silicon valley knocks already struggling creative professions down a hill with systems that COULD NOT POSSIBLY EXIST without their pre-existing output to exploit, without permission, fundamentally unethically, if you just don't give a shit about that and are going to gleefully cheer that process on, then all I really ask is you be honest about that. Just say "I know this is fundamentally corrosive, unethical, and undermines an entire segment of the economy, but now I can get as many over-tuned generic shitty pieces of art as I want, and that's just more important to me." Just say it, and stand by it.
I don't find the rest of this readable tbh
I have ZERO issue with image generators on their own. They're quite cool technology. The only thing I and tons and tons of other people have requested is they not use images without permission to train them, that's literally it. That's my sole, single, solitary objection and yet every AI interested person, advocate, and company rep will do intellectual back-flips to explain why this is unreasonable.
It's not unreasonable to ask permission before you use something. It just isn't.
It's also not unreasonable to look at and learn from things that people have put on public display.
But if I "copy" the experiential knowledge of your art into my brain by viewing it, I'm not violating your copyright. My brain doesn't contain a copy of the art, it's just been influenced by viewing it, and I might be more capable of producing art that mimics your style.
What these models are doing feels, to me, vastly more like the second case.
In this way, ML training is just not the same as a person being inspired by or even being asked to recreate another person's creative work. Over the course of making something, an artists' "voice" would be best characterized I feel as the tiny choices they make along the way that all point to and reinforce a larger point or purpose to the piece. This "voice" shows up in all creative output, not just spoken word. That is what I feel people are feeling is lacking in generated art: because a machine-learning model does not have a voice, it does not have intent, it has a mandate from a third party from which it tries to draw from, and instead of making numerous, tiny but contributory choices, it instead decides on a weighted average of all the choices made in the art that the model was trained upon, which is simply not the same thing.
It makes all generated art have this very sterile, soulless feeling to it because these tiny choices that would otherwise be made by a person trying to illicit an effect are instead just the machine sort of shrugging and being like "well in most things I've seen where a woman is sitting this way, her hand is tilted this way" but it doesn't know why the hand is tilted or what that means for the subject, which means the hand-tilt might be applied to subjects for whom it makes absolutely no sense at all to tilt the hand.
I am capable of doing this.
> If you show someone a painting and ask them to recreate it, even setting aside the skill gap, you do not get the same painting back. You get a different painting, with some overlap, with the "focus" of it being what the person paid the most attention to during their viewing.
same for ai models. in fact, more true for ai models. You'll have a much harder time recreating an image from popular models than from human memory.
> It makes all generated art have this very sterile, soulless feeling to it because these tiny choices that would otherwise be made by a person trying to illicit an effect are instead just the machine sort of shrugging and being like "well in most things I've seen where a woman is sitting this way, her hand is tilted this way" but it doesn't know why the hand is tilted or what that means for the subject, which means the hand-tilt might be applied to subjects for whom it makes absolutely no sense at all to tilt the hand.
this will surely age well
People are already experimenting and/or deploying systems that run an LLM before doing text2image [1]. This helps a lot with 'understanding'.
The next low-hanging fruit would then be to go back and improve the labeling used for training the image-generation models in the first place (using new multi-modal LLMs).
[1] eg. the current GPT+ standard model will do Prompt -> GPT-4 -> DALL-E
AI companies argue (long story short) that their usage is closest to taking statistical data, and thus doesn't trigger the need for a license.
I do realize that some people find this to be a somewhat unfair outcome as is, but
A) It is the current law as is. (caveat: we still have to see if the courts actually confirm this particular interpretation)
B) I'm not actually sure we should let those people have their way in the first place.
Of course, ignorance of the law is no excuse.
I feel like some creative folks never actually bothered to learn the laws they were working under, or (more charitably) this turned out to be a corner case, and they were caught by surprise.
It can be unreasonable if it makes it harder to society in general to reuse and innovate on previous works. Intellectual property in general can be quite destructive. Heck, take a look at Permission Culture, which is actually a negative thing:
Permission culture is a term often employed by Lawrence Lessig and other copyright activists such as Luis Villa[1] and Nina Paley[2] to describe a society in which copyright restrictions are pervasive and enforced to the extent that any and all uses of copyrighted works need to be explicitly leased. This has both economic and social implications: in such a society, copyright holders could require payment for each use of a work and, perhaps more importantly, permission to make any sort of derivative work.
Lawrence Lessig describes permission culture in contrast with free culture. While permission culture describes a society in which previous creators or those with power must grant people permission to use material, free culture ensures that anyone is able to create without restrictions from the past.
...
An implication of permission culture is that creators are blocked by systemic procedures and this discourages innovation. Requiring permission in this sense means that creators will have to prove their usage of material is fair, even where legally unnecessary,[4] which is a process that some would decide not to continue.[5]
The "style" certainly isn't copywritten because you can't copyright a style. Someone creating doodles in her style is absolutely allowed.
She doesn’t own black and white scribbles and striped clothes.
Especially when really she’s just deriving from Tim Burton and other similar styles.
> However, the judge allowed Andersen’s complaint that her 16 copyrighted works were used without her authorization to move forward.
So there is that and Stability is already having another lawsuit with Getty with obvious watermarked images as well.
Bits are not a bug.
As for easily recreated, it is not hard for anyone to make a wooden block and then use it to make prints but if you made a wooden block print of Campbells soup cans you would probably face a copyright claim from Andy Warhol depending on the "look" of the print.
Because as soon as you create it and try to sell it for $1, someone else will recreate it instantly and put it up for $0.50, and so on until the value of all non-physical works is effectively $0 the moment after creation.
Feels like that would result in way less human art being made.
Seems more like quality would matter. Hard copies would matter; perhaps the disc you issue your media on is rated to last 100 years, whereas someone's digital copy can be deleted with a keystroke.
Copyright is bullshit in a market of perfect reproducibility.
It's worth noting that copyright is rather destructive since it impairs people from building and innovating on previous works [2], so any benefits need to be weighed against that.