Seems like a microscopically thin line, though. If an LLM gets too close to recreating a recognizable subject, it's all hell from there on where to draw he line.
I don't like this logic for the legality of AI images because we wouldn't allow it with non-AI images. For example, should CSAM be legal if the person in the image and all their family is dead? There is "no real subject" around to be harmed anymore, so by this logic it should be legal. But we don't make this stuff illegal just because of the people harmed in creation or distribution. We make it illegal because most of us don't want to live in a society that tolerates it.
In your example I would think that harm being rendered against the now dead is still harm that occurred against a person who was living at the time??
Dead people generally lose most protections from stuff like invasions of privacy and defamation (obviously not every jurisdiction handles this the same way).
To use an innocuous example nobody here is likely to get riled up about... The film "Let the right one in" had a scene where the eternally 11 year old girl vampire lifts her skirt to reveal... Nothing. No genitals at all. It was shocking and disturbing, and was supposed to be on a few levels. Genius filmmaking. Back when IMDB had forums it was pages of people saying it was a pedo's dream and the film should be banned. (I must have missed some scholarly article where pedophiles were into children with no genitals)
I do wonder from time to time about French filmmakers if I am honest...
The discomfort around discussion stems more from cancel culture, which is a relatively recent phenomenon, and also not Puritan.
We absolutely would, and, in fact, this rule articulated in this ruling does.
> For example, should CSAM be legal if the person in the image and all their family is dead?
That's still actual CSAM and not obscenity that is unconnected to any actual abuse, and so the rule that already makes actual CSAM outside of the coverage of the prohibition the Supreme Court has found on criminalization of mere possession of obscene material continues to apply to it under this ruling. Non-AI imagery that would be legally situated similar to AI imagery here is, e.g., drawn imagery.
> But we don't make this stuff illegal just because of the people harmed in creation. We make it illegal because most of us don't want to live in a society that tolerates it.
That's true of most of the things that would be banned but for the protections of the First Amendment, and is not, itself, a good argument against First Amendment protection.