Disney sues Midjourney

[Blue]

Why should legal systems need to "catch up" to every new technology?

Please don't try to dismiss my points with your hyperbole that 'every' new technology needs laws. That's a logical fallacy and not something I said.

The law needs to catch up when there are new types of crimes that didn't exist before.

The invention of trains created crimes that didn't exist before.

Transmission of electricity via poles came with new types of crimes that didn't exist.

Credit cards needed additional laws after they were introduced because of crimes that didn't exist before.

Hacking wasn't a crime before computers, but needed to become one after.

Denial of service attacks also came once there were remotely accessible realtime services. Might have come as early as the telegraph, but definitely by the time of the internet.

 

[Blue]

It doesn’t make sense and is not true. I already pointed to one alternative deterrent, by holding end users accountable for produced copyrighted works that will incentivize end users to not use ai’s that produce copyrighted works, essentially lowering the demand, making them less profitable than those that don’t produce copyrighted works. (Or derivatives of them).

Yes, and I've explained why I've dismissed that one in an earlier email.

Please return the favor instead of just 'it doesn't make sense' and us having to take your word on it. Make us understand why it doesn't make make sense.

Explain why those who are collecting the material should have absolutely free reign to collect everything they want, often for commercial gain, regardless of copyright status and with no responsibility to see that it is used responsibly afterward.

Please, if you leave out aspects of that, it won't explain the case, so try to be complete.

 

[FrogReaver]

Yes, and I've explained why I've dismissed that one in an earlier email.

Please return the favor instead of just 'it doesn't make sense' and us having to take your word on it. Make us understand why it doesn't make make sense.

I just explained that. Actually twice now.

Explain why those who are collecting the material should have absolutely free reign to collect everything they want, often for commercial gain, regardless of copyright status and with no responsibility to see that it is used responsibly afterward.

Seems simple enough. If Collecting the material and using it to create an AI is deemed fair use then that places no further obligation on them to enforce how others use the ai. This is the ai is a tool philosophy.

 

[Umbran]

Show why that’s a necessity in this scenario. Else it’s just wishful thinking.

Hardly. I don't wish for this at all. It is just a consequence of what you're insisting upon.

Do not start from the position that middle-men are immune - that part is wishful thinking. Historically, they aren't immune.

Start from the position that a publisher can sue anyone involved in the violations, because, historically, that has been the way of things. Over time, those suits have led to carve-outs for ISPs and the makers of hard drives and the like not being liable for the actions of users. But, those carve-outs have been much more rare for applications - like Napster, or Kazaa.

Also, do not start from the idea that the generative AIs are even "middle-men". The issue at hand isn't really about exact duplication of extant works like a Xerox machine. Generative AI goes beyond that, to creating entirely new works with enough points of similarity to be infringing. That's playing a more active part than Xerox does.

So, when an infringing work comes out, your AI-maker is getting sued. They will lose, because they demonstrably do put out works with enough points of similarity to be infringing. The generative-AI is guilty. Sorry.

In the past, your ISPs made arguments that they did not know, and could not control, what data moved over their wires. Your AI-maker doesn't have that argument. They can control what data is in the system, and they do know what requests are made. So, no carve-out for that.

Generative AI makers have tried to control what kind of requests they allow. They may offer that up here. But those controls generally suck, and are easy for users to circumvent, so more infringing content will be created, and we will go through this loop again, with those controls off the table.

From there - you don't want the AI company to control their data to only stuff they've licensed, and don't want enforcement to fall on the generative AI company? The rights holders will... rightfully.. then insist that the data on who is making what requests be handed over to aid enforcement. Use of generative AI will then be restricted to authenticated users whose activity is tracked, and periodically handed over to auditors for review.

 

[Umbran]

Particularly because the copyright holder isn't selling more of them so they cause no monetary harm.

In general, incorrect, from a legal standpoint. As I understand it, making a copy for personal use is the carve out.

If you made a million copies, and started handing them out, even for free, you'd probably be in violation.

You may ethically feel that, since they aren't going to sell any more, you feel no guilt over it. But the law does not recognize you as having the right to make that call.

You see, the rights holder actually not only has the right to publish. They have the right to control and restrict publishing. Think Disney's Song of the South here. They hold the rights to restrict duplication of that thing into the public market. They will never sell it again, but they will sue you into the ground if you copy and distribute it, even for free.

 

[Umbran]

Seems simple enough. If Collecting the material and using it to create an AI is deemed fair use then that places no further obligation on them to enforce how others use the ai. This is the ai is a tool philosophy.

Oh, but that's not how liability works at all! Tool makers are successfully sued regularly over misuses of their tools that they didn't do enough to prevent!

This is why there are warning stickers all over aluminum ladders, and why bags used for packaging have warnings to not let babies stick their heads into them and suffocate....

 

[Morrus]

But the law does not recognize you as having the right to make that call.

Yep. I think that's the important part. It simply isn't up to you to determine whether or not the copyright owner will be OK with it. It's up to the copyright holder--that's the right that they hold. It's less about stealing content and more about depriving them of their rights. In this case, the right to decide what happens with their IP.

Depriving people of their rights is generally frowned upon.

 

[Ryujin]

Why? Xerox isn’t liable if a user reproduces a copyrighted image without knowledge.

I have said this before, up-thread. The Xerox doesn't come standard with the infringed work preinstalled. Trust me on that. I spent a year as a photocopier refurbishing tech, a lifetime ago, and routinely stripped them down to the chassis. There ain't no pictures already inside them.

 

[FrogReaver]

I have said this before, up-thread. The Xerox doesn't come standard with the infringed work preinstalled. Trust me on that. I spent a year as a photocopier refurbishing tech, a lifetime ago, and routinely stripped them down to the chassis. There ain't no pictures already inside them.

Not sure what that has to do with anything. The whole premise is that using those copyrighted works to make an ai will be counted as fair use. In a discussion with that assumption then theres a notable difference between xerox that doesn’t have such fair use claim and an ai that does.

 

[Snarf Zagyg]

Not sure what that has to do with anything. The whole premise is that using those copyrighted works to make an ai will be counted as fair use. In a discussion with that assumption then theres a notable difference between xerox that doesn’t have such fair use claim and an ai that does.

The Disney lawsuit isn't about scraping, it's about the derivative works created by AI. The output.

Assuming, arguendo, that the trial court decision in the other action is correct (that so long as the AI company bought copies of each work originally, they are entitled to use it to train the LLM as fair use), then the correct analogy isn't a photocopier, it's an artist.

In other words, an artist buys a bunch of books to learn how to make art. That's fine- fair use.
Now, the artist sits down and makes his own drawing. If his artwork is just derivative of a copyrighted work, then that's a problem.

If you look at the actual decision by the judge in the other case, he actually points this out. That derivative works will likely be actionable. Further, "scraping" without buying originals or licensing will still lead to liability even when used to train.