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
But it's virtually impossible for these models to make an exact replica – a photocopy - of an existing painting, because that would make it break some laws of information theory probably. It's not a lossless compression engine. Paintings like, "Girl With the Pearl Earring" appear so frequently in the datasets that the models tend to overfit on them – which is actually not something you want when designing a model. It tends to create issues for you. But that's why a painting like that can be simulated somewhat accurately. But even then – it's never going to be 100%.