I don’t really understand the argument here anyway (although, as your typical commenter, I am reading this before actually reading the article).

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?

No, that is not the precedent set here. A legal claim was brought against the defendant, but (the judge found) that some of the evidence didn't have a specific property (copyright). Also the case was done in civil court, which has different rules and procedures than criminal court. This case is not about what one person did during the day.

That doesn’t seem to fit with the quote, though. The phrasing “not plausible that every training image used to train Stable Diffusion was copyrighted” makes it pretty explicit, I think, that what is protecting the data-set is the presence of non-copyright images, not the absence of copyright ones.

Actually, just to follow up, I think the crucial element here is:

> 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.

In short, the judge ruled that McKernan and Ortiz hadn't followed proper procedure for a lawsuit of this type, because they did not register their works with the U.S. Copyright Office before filing the lawsuit.

Copyright does at least in theory lapse, depending on the nature of the work. I don't think I've seen any AI companies claiming all their training dataset is pre-copyright however.

In what way is training "copying"?

This is just an attempt at a landgrab by idiot copyright maximalists.

Name-calling doesn't help your argument.

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

> 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.

Copyright is a human right only in that it's the right to stop your stuff from being stolen. Which really isn't a right, but a set of rules that are needed for a developed nation to prosper by ensuring people make productive work in pursuit of selfish riches. Otherwise, you could make something, and someone could come along, take your idea/work, and undercut you slightly to put you out of business.

> In what way is training "copying"?

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.

A lot of 'technical copying' actually is permitted by EU laws or US Fair use arguments. Think of browsing, caching, scraping, indexing, etc.

AI companies argue that insofar as they are copying, they are only making ephemeral technical copies.

> A lot of 'technical copying' actually is permitted by EU laws or US Fair use arguments.

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.

Ah sorry, I was trying to say two things at once referring to two different contexts. In both cases the only 'temporary copying' takes place.

- 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.

You browser loads a website. That is copying. Your browser saves a copy on a hard drive: copying. You integrate an image into a database: copying. Your CD player reads a song from a CD into its memory buffer: copying. All of these debates have already been hashed out in various courtrooms. There is a huge body of law that carefully defines was is and isn't copying, what is actionable copying and what is de minimus or ephemeral.

I'm not arguing whether or not this is copying. I"m pointing out that a seller of AI services could market their model as being trained on source material that is exclusively from outside the window that copyright currently applies to.

> 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.

Aren’t there visual art in the public domain?

INAL but the judge’s ruling seems technically correct, so what am I missing?

> Aren’t there visual art in the public domain?

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#:~:....

Most images found on Wikimedia sites actually require attribution to the original author, including for derivative works. So if you wished to include such images in training, you would also need an explainable AI that could tell you exactly what training inputs are influencing its output. (SVM is one machine learning method that can easily do this, but I'm not sure if it's ever been applied to image generation.)

> if you wished to include such images in training, you would also need an explainable AI that could tell you exactly what training inputs are influencing its output.

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.

You only have to make that leap if you suppose that machine learning algorithms actually learn and then become capable of creating their own original works, rather than producing mechanical transformations of their inputs.

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.

> You only have to make that leap if you suppose that machine learning algorithms actually learn and then become capable of creating their own original works, rather than producing mechanical transformations of their inputs.

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?

That seems pretty close to what I said in the next paragraph, just approaching from the other direction.

> including for derivative works

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)

> So if you wished to include such images in training, you would also need an explainable AI that could tell you exactly what training inputs are influencing its output.

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.

Publicly-licensed works are 100% copyrighted. That's why they need licenses. A true public work doesn't need or get any licensing. Linux is copyrighted, and licensed, to become f/oss. Shakespeare is actually public domain, no license required.

The terminology can be confusing, but "copyrighted" is often used interchangeably with "registered". Copyright in a work exists from the moment it's the work is created, but it's not "copyrighted" in the sense the judge is using until the work is registered with the Copyright Office. Registration is a requirement to sue for infringement. So a work is protected by copyright as soon as it's created, but it needs to be registered before one can sue for infringement. That can be done after the infringement occurs. For example, if a work is created in 2020 and someone infringes on the copyright beginning in 2021, the work can be registered in 2023 and the creator can sue for the past infringement (though not all of the same remedies are available).

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.

> So a work is protected by copyright as soon as it's created, but it needs to be

> 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.

You do have recourse available, but registering the copyright is a required step in seeking that recourse, and must be done before suing.

> 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

https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf

It's possibly an interesting wrinkle given that, especially for certain types of works, the vast bulk of material is likely copyrighted but not registered.

> interesting wrinkle

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.

All they have to do is register their works that they are claiming were specifically infringed, and they are fine.

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".

> All they have to do is register their works that they are claiming were specifically infringed, and they are fine.

Based on what legal reasoning?

That is another hair to split, between "registered" at time of infringement and "registered" at time of lawsuit.

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.