[haldujai]

I wonder if that analogy represents the same thing. Speaking purely from a non-legal perspective on the ethics in my mind:

When you use Photoshop on propriety data you're providing the original data and choosing what manipulation to make (i.e. what tool) and directly creating the output. It makes sense that if you redistribute this it may be copyright violation.

When you use Copilot or ChatGPT for programming you're typically asking a non-proprietary question or accepting suggestions it's making based on non-proprietary (or proprietary to you) code in the file. You also don't dictate the manipulation process a black box deep learning model does (i.e. I haven't asked it to do something that could be reasonably thought to be a copyright violation).

Am I then responsible for the fact that Copilot is fooling me with effectively copy-pasted copyrighted code when it's being presented to me as generated by the software and I haven't instructed the software to commit a copyright violation? I'm not sure if intent matters for copyright, I assume it doesn't but perhaps that's a missing piece to this.

Diffusion models are gray to me, if you're asking/prompting with "Mickey Mouse riding a horse" I can see the argument that the prompt itself can be interpreted as asking the model to commit copyright violation and the user is just hiding behind a layer of abstraction. If I ask the model to spit out "a picture of a smiling cartoon woman" and it generates a Betty Boop lookalike is that still the users fault?

It seems to me like passing the burden to the user could be reasonable but would need some safe harbor type of exception. It'll be really interesting to see what the courts decide.