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Comment by bradley13 | Hacker News Reader

Perhaps worth noting: That picture comes up in a Google search on numerous websites. It was apparently one of the images distributed to generate publicity for the film.

This prompt is very specific: it references not only a film, but also two actors with unique names. It's not really a surprise that it generates an image out of its training data - what else is it going to do? In this kind of situation, I think Midjourney should just give a reference, something like "Due to an overly specific prompt, this image is very similar to XXX".

As I have posted elsewhere, I see no copyright problem using such images for training. If an image is online, it is going to be looked at, maybe by people, maybe by automated systems. If you don't want your image looked at, don't put it online. The only problem here is the lack of a reference.

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> If you don't want your image looked at, don't put it online. The only problem here is the lack of a reference.

This is an incredibly toxic take. If I as an artist, want to share something I made with the world, but don't want others to take something I care about and claim it as something that they created, so they using their popularity can sell my work. My only option is to not share it with anyone?

It's the artists fault that midjourney is duplicating their work! They should never have created anything if they didn't want some one else to do <bad thing>!

I'm of the strong opinion that all information should be free (secrets excluded). I also agree with you that there's nothing wrong with using public information for training data, but the only problem isn't lack of attribution. And victim blaming isn't the answer to the question.

> If I as an artist, want to share something I made with the world, but don't want others to take something I care about and claim it as something that they created, so they using their popularity can sell my work. My only option is to not share it with anyone?

Don’t share it publicly with no viewing restrictions, yes. If you want to limit who can view it, then limit who can view it.

It’s like driving around with a banner on your car and then complaining because a certain subset of the population looked at it.

There are many ways to restrict access to content. The simplest is to create a login and TOS that restricts usage. Just do that and it won’t be used for any training.

But putting it on a server with anonymous http access means that the whole world (including robots) can see it.

It’s not victim blaming, it’s just reason. If you don’t want people to see something, don’t show it to them.

The issue isn't models viewing it, it is reproducing and selling it, Imo.

>Don’t share it publicly with no viewing restrictions, yes.

They did share it with legal restrictions (copyright) and everyone is already bound by the TOS (law) so there is no need to sign. Viewing is fine, resale is not.

Do you think there is something special about the internet that changes this? Dont let anyone read read copies of your book if you wont want them to sell copies of it? Dont let people listen to your music if you dont want them to be able to resell it?

The model is a tool, like photoshop. You as the author of the prompt produced the image by explicit intent. If you then take it and distribute it, you are violating the copyright with criminal intent that’s demonstrable by the prompt itself. According to some friends that are professors of law, that’s likely the most clear violation. The consumption of copyright material to produce a commercial product without license is likely a civil copyright violation, but it’s unclear that’s true. Browser caches for instance were litigated as copyright violations, and CDNs. Obviously they were not found to violate copyright because while they handle and copy and manipulate copyright material they do so incidentally, without intention, and it functions without the copyright material. A lot of the argument on the AI side, which is likely legitimate legally, is these images are incidentally ingested, the models function fine without the copyright material, and don’t produce the copyright material without explicit intent by the user. The case that are the strongest are where the training data is known to have pirated or large copyright libraries inside them and are used regardless.

Finally by posting publicly samples of your work you implicitly grant limited fair use rights to your work. You do not retain full rights prohibiting reproduction of those samples. That’s why artists usually will not post full portfolios. Obviously there are limits but they’re much more egregious than what you see in models where the imagery is consumed into a lossy model that mathematically aggregates it with every other image it ingests.

How is ingesting an image, laundering it via a prompt, and then spitting it back out without attribution fair use?

One major test used by the Supreme Court is if the work is an economic competitor to the original. Similarly, infringement depends on the use, not object.

An image coming out of mid journey may or may not be used in an infringing way.

I can download movie stills from Google or midjourney without breaking copyright. If I print and sell posters of them, that is different.

If that were the primary intended use then it wouldn’t be. However the product incidentally has that behavior if you specifically choose to use it in that way, which is not the intended use or the common use.

I think we basically agree. It seems to me that a lot of the confusion stems from the connotation of “training" on copyrighted materials, and if that connotation is commercial or not.

A individual reading and learning from a book on woodworking isnt commercial use. However, if a business includes the same book as part of literal corporate training program, that would be commercial use.

Training doesn’t violate copyright (although this may change in time).

And TOS doesn’t apply to people who don’t agree. Court cases have ruled that you can’t prevent people scraping with a TOS as the data are publicly available and don’t require acceptance to access.

If someone buys my book, I can’t limit how they read it, or who they resell it to. If I give my book away for free, I can’t limit either.

It’s the same with giving out access to my web content.

The restriction point is selling. If I don’t want someone to read my book, I don’t sell it to them. If I don’t want someone to view my web content, I restrict their access and don’t let them view it.

If you put your image on a web server that serves it to anybody then it's public information as far as my morals are concerned. I don't see what's wrong with training on it.

Generally speaking, I agree. But it's often more nuanced than that. For example, what if I upload my photo to Facebook such that only my friends can see it, but then one of my friends posts it to a publicly accessible URL?

The argument that "if it's accessible to me, then I have the moral right to read it" assumes that the person who made it accessible to you had the moral right to publish it. It also implies you can bypass moral responsibility by deputizing your moral transgressions to someone less scrupulous.

Is there anything besides 'training' you think would be wrong?

What about resale?

Nitpick: Claiming authorship over an output from an AI model is as infringing as falsely claiming authorship over a work produced by a human (or group of humans), but fraudulent claims of authorship have only minimal relation to the question of whether the model itself infringes on copyright.

> If you don't want your image looked at, don't put it online.

Looking at things doesn't produce nearly identical copies, so you may be glossing over some important bits.

The keyword is nearly. It's still off enough that a talented artist could paint it from memory after looking at it.

That's a separate issue. The act of producing a new image is a very different process than looking at one, and it comes with an exciting new set of legal consequences.

With that in mind, isn’t the legal burden on the model output rather than the model weights and training?

An artist has the capability to reproduce something copyrighted, but that’s generally only a problem if they try to sell that reproduction.

In that regard, Midjourney probably is in violation of copyright because they profited from making a close reproduction of an existing work. But a solo person running Stable Diffusion locally probably isn’t, even if they made the same output.

An artist producing it from memory, and then distributing the copy without permission, is clearly a copyright violation.

The process of looking at an image online produces many identical and nearly identical copies of it. The DMCA just declared that those copies don't count for the purposes of copyright law, because it would not otherwise be feasible for any copyrighted material to live on the Internet. If you think LLMs are valuable and can't avoid this kind of thing fully, it seems reasonable to argue they do or should fall under a similar exemption.

> If an image is online, it is going to be looked at, maybe by people, maybe by automated systems.

You cannot use a copyrighted image to produce derivatives without obtaining authorisation from the copyright owner of the original work. Even if you are a human, copying the random image from the internet into photoshop and start modifying it could lead you into trouble (it is usually not enforced though, because it is hard to find. But AI systems would simplify scanning for such violations).

Your understanding of copyright and actual copyright are two different things. Or at least you cannot share the produced image - which Midjourney does here.

> copying the random image from the internet into photoshop and start modifying it could lead you into trouble

That's only if you intend to sell the resulting image, right? If you just post it online for free then it should be fine

No. Non-commercial uses are not automatically fair use. Commercial uses are not automatically infringing. And the purpose of the use is only one of the four prongs of fair use.

> You cannot use a copyrighted image to produce derivatives without obtaining authorisation from the copyright owner of the original work.

You can produce derivatives as long as the derivative doesn't contain anything substantially similar to the expression in the original work [1]:

> To win a claim of copyright infringement in civil or criminal court, a plaintiff must show he or she owns a valid copyright, the defendant actually copied the work, and the level of copying amounts to misappropriation.

...

> In the first context, it refers to that level of similarity sufficient to prove that copying has occurred, once access has been demonstrated.

No similarity means no copying means no infringement. Simply using someone else's work is not infringement.

An AI model can produce outputs similar to the original works, but that's almost always if not always because the prompt contains a reference to an author, an existing work, or a characteristic/style strongly associated with an author or an existing work. So there is infringement, but the most of the liability should belong to the person who chose the prompt, assuming the model creator responds to notifications of such situations from the relevant copyright holders by preventing the model from responding to prompts. Think DMCA.

[1] https://en.wikipedia.org/wiki/Substantial_similarity#Substan...

The user may be asking for it, but that doesn't matter. Every piracy website is producing pirated content at user request. They're still breaking the law.

They basically built a piracy website by accident.

> If you don't want your image looked at, don't put it online.

Same with writing. The inability to effectively prevent stuff being used to train AI is a serious problem that is why I (and at least several other people I know of) have removed their content from the open web and likely won't put new content on until/unless there is some effective way to control bot access.

I find it incredibly sad that this issue is making people stop using the web in this way.

> It was apparently one of the images distributed to generate publicity for the film.

And we assume it didn't understand this context? If it did it arguably did well not creating anything new.

I cant imagine the copyright owner being very upset that, when asked about their movie, it shows a promotional image.

How would you implement your solution technically though? There isn't a reference set of images in the model, it's just weights.

and data on disk is just ones and zeros.

> If you don't want your image looked at, don't put it online

Classic victim blaming. Absolutely gross...

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