[SLSMan]

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.

[sandworm101]

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.

[tsukikage]

> 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.

[leereeves]

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

[ghaff]

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.

[MichaelZuo]

> 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.

[dragonwriter]

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".

[MichaelZuo]

> 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?