Eh, there's a lot of space for argument and deliberation in a courtroom, moreso than a hacker news comment section... This is a rare issue with an obvious fix, so I wouldn't expect a ruling to hinge on it. (Additionally, the Lott image doesn't have any real harm; it's heavily reproduced already and freely enough licensed to appear on Wikipedia.)

My guess is that because there's a lot of these cases coming the courts are really going to want to come up with some tests for whether a model is ok or not. So even if they say SD did a bad thing with these few images, that's not going to be enough to rule out the broader class of algorithms - next week they'll have another Getty case against the algorithm with the technical mitigation for the rare copied images.

But a "rare issue with an obvious fix" sounds like a good Streisand effect type-target to me.

Technologically I know that this is a pretty honest statement of the problem, but I'd expect A LOT OF PEOPLE to read this as "oh, look, they're trying to tweak it to 'destroy evidence.'"