| HN Mirror

> > not the 1s and 0s that make up the image.

> Now this is plainly false. I cannot start selling a Mickey Mouse JPEG stripped straight from Disney's site.

You can absolutely go to the Disney website right now, download any JPEG, convert that image to a series of 1s and 0s, and then print that series of 1s and 0s on a t-shirt that you sell on your website.

Once those 1s and 0s are in a new non-digital medium they are no longer a copy of the image. Historically, the digital copy is a special case because practically there is no difference between the "expression" of a byte sequence in a digital medium and the "idea" of a byte sequence in a digital medium.

A t-shirt is not a digital medium so the rights holders don’t get to extend their monopolization of speech to a screen print of an unintelligible pattern of 1s and 0s.

> A t-shirt is not a digital medium so the rights holders don’t get to extend their monopolization of speech to a screen print of an unintelligible pattern of 1s and 0s.

Can you point me to a ruling where this form of expression is successfully defended via fair use?

Seems unlikely that a judge would agree that a simple transformation between "digital" vs "non-digital" medium avoids copyright infringement (ex: if I produce a digital image, I definitely maintain copyright over digital and non-digital forms of that image; you can't just start printing and selling posters of my image).

You could try to argue that the change of medium is transformative, but that's not a generic argument for "digital" vs. "non-digital"; that's particular to the circumstances of the case.

Briefly, more to come:

What are you missing about the fact that a t-shirt with Mickey Mouse on it and a t-shirt with a pattern of 1s and 0s are completely different. Is anyone buying and wearing the 1s and 0s shirt instead of buying and wearing a Mickey shirt?

You can’t say the same thing about digital copies! Is anyone buying the 1s and 0s of a JPEG in a digital medium and expecting to just have a bunch of 1s and 0s?

BTW, if anyone wants access to those 1s and 0s they only need to go to the Disney website to download the JPEG… they don’t need to buy my 1s and 0s shirt.

You’re just not thinking about this in legal terms: who has wronged who and how did they wrong them. These lawsuits are not criminal, not public wrongs, but rather private wrongs. People must show that there are concrete damages against their specific property!

I’m having a hard time figuring out what it is you’re missing here but I’m enjoying that I get to hone my rhetorical chops with this argument.

Finding the relevant case law is going to take me a little bit of time and it will probably require a bit of exposition so please be patient!

> If they figure out how to get it to stop generating training data, they'll be fine.

How does that change anything at all? Take any of the plaintiffs in the Stable Diffusion lawsuit. Let’s say that their work was left out of the training data or if it was allowed to remain that the tool never reproduced training data… is Stable Diffusion any more or any less useful? Is literally anyone using Stable Diffusion with the intent to reproduce one of the plaintiff's copyright protected works?

> Let’s say that their work was left out of the training data or if it was allowed to remain that the tool never reproduced training data… is Stable Diffusion any more or any less useful?

This doesn't really have much to do with copyright.

> Is literally anyone using Stable Diffusion with the intent to reproduce one of the plaintiff's copyright protected works?

Intent isn't really a factor in terms of damages for copyright infringement. But I assume we'll figure out the extend of the damages if/when damages are awarded, since that's when they measure it out. Granted, I expect the liable parties to settle far before it gets to that; the payout seems cheap (~100k - 1m) relative to the risk (penalties for copyright infringement are per unit, and it's easy to hit millions of units on the internet).

And yes, a lawyer for the defense will show that, unlike a zip file of photos that can ONLY be copies of protected works and that anyone distributing such a zip file cannot reasonably say that they are expecting non-infringing works, with Stable Diffusion there is basically no one expecting to get copies of any of the plaintiffs protected works.

Like, literally no one who made or uses SD knows or cares about the plaintiffs, is interested in their drawing style, and even remotely interested in any of their individual protected works. If I were the defendants I would train a model without any of the plaintiffs’ work and then show the court that the results for an astronaut riding a horse are no worse without their works.

And no, some lawyer is not going to scream out “objection, intent has nothing to do with copyright”, because, again, all that is meant by the intent is this: if Stable Diffusion output an image but your intent was not to copy another image… well too bad, you’re still infringing… this all happens where the liability for disseminating the copy and foregoing any fair use is on the person using the tool. Is using the tool worth the risk? Maybe not!

The intentions of the toolmakers are very important to the courts. A tool like a torrent website that does literally nothing to police their content and even actively promotes piracy is going to be treated differently than publicdomaintorrents.info.

> > Let’s say that their work was left out of the training data or if it was allowed to remain that the tool never reproduced training data… is Stable Diffusion any more or any less useful?

> This doesn't really have much to do with copyright.

It is not specific to copyright but any private wrong heard by the courts needs a clearly defined plaintiff, defendant and property in question.

How can the plaintiffs accuse anyone of infringing on their copyrights when no one has used the tool to produce the protected works? Which of their specific works was infringed upon? Is that specific work a requirement for the tool to function?

The plaintiffs seem to be “everyone” and their property “every single digital image”, which is legally incoherent. How exactly would someone reasonably ask permission for every single digital image? Is everyone entitled to part of the settlement or just the plaintiff’s and their lawyers?

Intent is absolutely a factor when accessing the tool. Intent is not a factor when accessing the infringing work.

The intentions of Sony when they manufactured the Betamax VCR were absolutely taken into consideration in the judgment.

> But all of this "it's just math"/"it's just data"/"it also creates non-copyrighted images" stuff doesn't cut it as far as the law is concerned.

What you mean is that you would prefer if Stable Diffusion was not considered fair-use by our legal system.

However, based on my more than cursory understanding of copyright law in the US, it seems more likely that the courts will find these tools fair-use than otherwise.

> What you mean is that you would prefer if Stable Diffusion was not considered fair-use by our legal system.

I think you misunderstand me. Despite my feelings about Stable Diffusion and laws around copyright, I believe the law will find in favour of the artists, assuming they have the funds/will to see it through. The law unfortunately doesn't really care how I feel about it.

Granted, they're up against some fairly large corporations that have both time and money to stall for a while, so I don't know how far their lawsuit will go.

> And yet torrent sites have been found to violate copyright, despite not hosting any of the copyrighted content.

BitTorrent itself is legal. The torrent sites that were shut down were found to have basically no non-infringing utility. There were and still are other torrent sites that have non-infringing utility which are of course allowed to exist.

> BitTorrent itself is legal.

Yes, and so is Winzip, and the code that trains Stable Diffusion. But that doesn't have much to do with the resulting data that is used and generated by those files.

> There were and still are other torrent sites that have non-infringing utility which are of course allowed to exist.

Can you point me to a torrent site that withstood a legal challenge for copyright infringement?

https://www.publicdomaintorrents.info/