That’s going to be hard to argue. Where are the copies?
“Having copied the five billion images—without the consent of the original artists—Stable Diffusion relies on a mathematical process called diffusion to store compressed copies of these training images, which in turn are recombined to derive other images. It is, in short, a 21st-century collage tool.“
“Diffusion is a way for an AI program to figure out how to reconstruct a copy of the training data through denoising. Because this is so, in copyright terms it’s no different from an MP3 or JPEG—a way of storing a compressed copy of certain digital data.”
The examples of training diffusion (eg, reconstructing a picture out of noise) will be core to their argument in court. Certainly during training the goal is to reconstruct original images out of noise. But, do they exist in SD as copies? Idk
A recreation of a piece of art does not mean a copy, I've personally seen hundreds of recreations of Edvard Munch's 'The Scream', all of them perfectly legal.
Even in a massively overtrained model, it is practically impossible to create a 1:1 copy of a piece of art the model was trained upon.
And of course that would be a pointless exercise to begin with, why would anyone want to generate 1:1 copies (or anything near that) of existing images ?
The whole 'magic' of Stable Diffusion is that you can create new works of art in the combined styles of art, photography etc that it has been trained on.