Yes but we have a common law system and there's already tons of precedent that training AI systems is transformative.
It's also quite obvious just by looking at the generated images that it's clearly transformative. The images generated are unique and you can't trace the original copyrighted image from what's generated.
You really don't need a judge to see that Fair Use covers Stable Diffusion.
What happens if you give an image prompt like "mona lisa", "daffodils van gogh", or similar designed to describe an image the model was trained on. Will it generate that image?
Or for written works, start with a sentance from a copyrighted work, or part of licensed code. Will it start reproducing that work word for word (like code pilot can do with the GPL license)? Getting these to generate copies of GPL'd, company owned, or other code with restrictions can lead to complex issues for the person/company using that code. Or likewise if a story contains significant elements of copyrighted works; worse if the works have trademarked elements.
> The images generated are unique and you can't trace the original copyrighted image from what's generated.
That might not always be true. I've gotten some results back that had the Getty watermark on them and others with the artist's signature. Unless the AI is adding that to images that never had one before (which might be a trademark issue), then you might be able to determine the provenance of the image components.
Is there something equivalent to the yellow dots printers add to their output that would survive the AI transformation?
Federal lawsuits are not cheap and the default is that you pay your own costs, you have to win the argument that you should get court costs & attorney's fees.
Well, you can still be sued even if the reason is almost totally bogus, and you have to go to court and make a stand that the reason is bogus. Doing only 100% legal things won't protect you from being sued.
