Those cases hinged on republishing works or significant parts of works as themselves, they weren't trying to pass them off as new, original works in their own right.
And this is exactly what this court case is about, whether or not Stable Diffusion ultimately is just another - complex - form of mechanical transformation or whether it creates original work.
In my opinion the only things all of these companies get wrong is that they (1) failed to obtain consent from the suppliers of the inputs to their models and (2) that they themselves have not contributed even a little bit of the input data.
The ultimate laugh test is whether or not these companies themselves slap (C) signs on everything and are willing to litigate when they believe their rights are the ones that are infringed upon. I hope for an outcome where opt-in will become the norm, that would seem to be a reasonable middle ground.
Finally, note that copyright is not a local concept but a global one - and has been for a long time - and that anything that happens on that front will have to ratified in a different forum than some US court.
No, it's not at all. This court case is about:
Plaintiffs Sarah Andersen, Kelly McKernan, and Karla Ortiz (“Plaintiffs”), on behalf of themselves and all others similarly situated, bring this Class Action Complaint (the “Complaint”) against Defendants Stability AI Ltd. and Stability AI, Inc. (collectively “Stability”); Midjourney, Inc. (“Midjourney”); and DeviantArt, Inc. (“DeviantArt”) (all collectively “Defendants”) for:
1.) direct and vicarious copyright infringement under 17 U.S.C. § 501;
2.) violation of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201–1205 (the “DMCA”);
3.) violation of Plaintiffs’ statutory and common law rights of publicity, Cal. Civ. Code section 3344;
4.) violation of Unfair Competition law, Cal. Bus. & Prof. Code §§ 17200, et seq.;
5.) and declaratory relief.
So for each of those complaints the defense needs to establish that their actions fit a different narrative, one that is legally coherent and against the claims for damages.
So for copyright infringement they are going to go for a fair use defense. I'm sure they won't only reference VCRs and Google Books! I'm certain they won't talk about "aggregators" and "generators" because this is not a Supreme Court opinion. They're going to use the established legal doctrines. I'm sure that their lawyers have plenty of other relevant case law at their disposal.
As for DMCA and rights of publicity, this seems to be what motivated Stability AI to adhere to "takedown requests" as they probably had some lawyer whispering in their ear that they probably don't want to spend the time and money testing this in court if it doesn't really impact the marketability of their tool.
I haven't ready anything about the Unfair Competition law in California.
Judges are far from stupid and a fair use defense requires that you primarily acknowledge that you are in fact infringing but that you feel that because it is fair use you should be allowed to continue to do so. This is a pretty risky strategy, especially when you are a party that is in the business of hosting other people's creative content.
We'll see how it all pans out, personally I think their position would be much, much stronger if they had bothered to obtain consent, even an opt-out email that if not responded to within say 3 months would count as consent (and no: obviously that's not the same but we're comparing the relative size of fig-leaves here).
As it stands I don't see how their 'fair use defense' will hold together under scrutiny without opening a much bigger can of worms.
[1] They had to admit infringement because of their first line of defense, then the fall-back required them to point at the site where they presumably took the code from which they could not. Don't interrupt your opponent when they are making mistakes.
This doctrine gives the lower courts a clear test that doesn't require diving deep into arguments about what it means for "computers to learn ideas" or for "language models to author".
The problem with an opt-in model is that it puts enough of a burden on a language model that it discourages non-infringing commercial creation. The opt-out-on-request model, which would need some form of legislation and probably informed by both the DMCA and right-to-be-forgotten in Euro area, would be preferable as it would have much less of a burden on model creators.
