IANAL but if I were to guess, I would think the defense here would center on how would what Stability AI has done differ in any meaningful way from human artists browsing through Getty's collection themselves, to train their human brains on what art to generate. The latter activity, even Getty would likely have to agree, is surely legal.
It would be a weak defense, undone because Stability AI is not a human and will never be one. It's a computer based tool using assets whose license explicitly say not to use them that way.
It may have nothing to with copyright just the terms under which you accessed them .
Most TOS boilerplate typicall prohibit commercial usage of their library without explicit license , Getty and every other company has that foresight if there is money to made they would want their cut is all that really need .
Let’s say you even just wanted to consume all images just sell an analysis of how many b/w images are there in their catalog it would still breach of their terms unless their TOS allowed you to do so the novel copyright question may simply not even matter in this particular case.
Also NAL, but I'm cynical enough to believe that Getty's lawyers would avoid answering this question directly. And then wax lyrical about how their client should indeed receive a royalty for anyone attempting to use Getty's copyrighted works to learn the art.
> Stability AI is well aware that Stable Diffusion generates images that include distorted versions of Getty Images’ watermark and other watermarks, but it has not modified its model to prevent that from happening.
> Making matters worse, Stability AI has caused the Stable Diffusion model to
incorporate a modified version of the Getty Images’ watermark to bizarre or grotesque synthetic imagery that tarnishes Getty Images’ hard-earned reputation, such as the image below
(see page 18 for an example)
Getty is going to win something. There is clearly a problem with the model. The outputs are often not novel enough to make them indistinguishable from the training data.
IANAL either, but there are attacks you can use to extract the original training data from the models: https://arxiv.org/abs/2301.13188. I’d guess these attacks will get better with time.
So in some ways, you can argue that Stability is also directly redistributing the original images (albeit in a compressed format).
IANAL either, but I believe for something to be copyrightable (and not an infringement on someone else's copyright), there needs to be a "modicum of creativity" in the new work. It makes me wonder if at least part of the case will depend on whether the court things an AI can be creative.
It kind of already means human-generated. Courts decided that a monkey cannot hold a copyright over a selfie it took. Another part of copyright law is the actual ability to sue over copyright infringement, and they decided a monkey does not have the ability or right to do so.
