It’s not exactly the same thing, but here’s an article by Kit Walsh, who’s a senior staff attorney at the EFF explains how image generators work within the law. The two aren’t exactly the same, but you can see how the same ideas would apply. The EFF is a digital rights group who most recently won a historic case: border guards now need a warrant to search your phone.
Here are some excerpts:
First, copyright law doesn’t prevent you from making factual observations about a work or copying the facts embodied in a work (this is called the “idea/expression distinction”). Rather, copyright forbids you from copying the work’s creative expression in a way that could substitute for the original, and from making “derivative works” when those works copy too much creative expression from the original.
Second, even if a person makes a copy or a derivative work, the use is not infringing if it is a “fair use.” Whether a use is fair depends on a number of factors, including the purpose of the use, the nature of the original work, how much is used, and potential harm to the market for the original work.
And:
…When an act potentially implicates copyright but is a necessary step in enabling noninfringing uses, it frequently qualifies as a fair use itself. After all, the right to make a noninfringing use of a work is only meaningful if you are also permitted to perform the steps that lead up to that use. Thus, as both an intermediate use and an analytical use, scraping is not likely to violate copyright law.
it does trouble me to think that the creators of stable diffusion could be financially punished. Did they at least try to compensate the artists in anyway?
It “feels” as though it parallels consultation. These creatives are literally paid for their creations. If a software constructs a neural network to emulate intellectual property, does that count as consultation? Could/Should it apply to the software developers or individuals using the software?
From the technical side, I don’t understand how all the red flags aren’t already there. the source material was taken, and now any individual could acquire that exact material or anything “in the spirit of” that material through a single service. Is this a new way to pirate?
stable diffusion is a great opportunity for small businesses. especially in an increasingly anti-small business america (maybe that’s just california?) I’d hate for it become inaccessible to creators that would wield it properly.
as long as creatives retain the ability to sue the bad actors, i’m glad. I personally don’t need Open or whomever is directly responsible for stable diffusion and its training data to be punished.
In the US, fair use lets you use copyrighted material without permission for criticism, research, artistic expression like literature, art, music, satire, and parody. It balances the interests of copyright holders with the public’s right to access and use information. There are rights people can maintain over their work, and there are rights they do not maintain. We are allowed to analyze people’s publically published works, and that’s always been to the benefit of artistic expression. It would be awful for everyone if IP holders could take down any criticism, reverse engineering, or indexes they don’t like. That would be the dream of every corporation, bully, troll, or wannabe autocrat.
The consultation angle is interesting, but I’m not sure applies here. Consultation usually involves a direct and intentional exchange of information and expertise, whereas this is an original analysis of data that doesn’t emulate any specific intellectual property.
I also don’t think this is a new way to pirate, as long as you don’t reproduce the source material. If you wanted to do that, you could just right-click and “save as”. What this does is lower the bar for entry to let people more easily exercise their rights. Like print media vs. internet publication and TV/Radio vs. online content, there will be winners and losers, but if done right, I think this will all be in service of a more decentralized and open media landscape.
It’s not exactly the same thing, but here’s an article by Kit Walsh, who’s a senior staff attorney at the EFF explains how image generators work within the law. The two aren’t exactly the same, but you can see how the same ideas would apply. The EFF is a digital rights group who most recently won a historic case: border guards now need a warrant to search your phone.
Here are some excerpts:
And:
I’d like to hear your thoughts.
thanks for the sauce. Its very enlightening.
it does trouble me to think that the creators of stable diffusion could be financially punished. Did they at least try to compensate the artists in anyway?
It “feels” as though it parallels consultation. These creatives are literally paid for their creations. If a software constructs a neural network to emulate intellectual property, does that count as consultation? Could/Should it apply to the software developers or individuals using the software?
From the technical side, I don’t understand how all the red flags aren’t already there. the source material was taken, and now any individual could acquire that exact material or anything “in the spirit of” that material through a single service. Is this a new way to pirate?
stable diffusion is a great opportunity for small businesses. especially in an increasingly anti-small business america (maybe that’s just california?) I’d hate for it become inaccessible to creators that would wield it properly.
as long as creatives retain the ability to sue the bad actors, i’m glad. I personally don’t need Open or whomever is directly responsible for stable diffusion and its training data to be punished.
In the US, fair use lets you use copyrighted material without permission for criticism, research, artistic expression like literature, art, music, satire, and parody. It balances the interests of copyright holders with the public’s right to access and use information. There are rights people can maintain over their work, and there are rights they do not maintain. We are allowed to analyze people’s publically published works, and that’s always been to the benefit of artistic expression. It would be awful for everyone if IP holders could take down any criticism, reverse engineering, or indexes they don’t like. That would be the dream of every corporation, bully, troll, or wannabe autocrat.
The consultation angle is interesting, but I’m not sure applies here. Consultation usually involves a direct and intentional exchange of information and expertise, whereas this is an original analysis of data that doesn’t emulate any specific intellectual property.
I also don’t think this is a new way to pirate, as long as you don’t reproduce the source material. If you wanted to do that, you could just right-click and “save as”. What this does is lower the bar for entry to let people more easily exercise their rights. Like print media vs. internet publication and TV/Radio vs. online content, there will be winners and losers, but if done right, I think this will all be in service of a more decentralized and open media landscape.