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
In fairness, Diffusion is arguably a very complex entropy coding similar to Arithmetic/Huffman coding.
Given that copyright is protectable even on compressed/encrypted files, it seems fair that the “container of compressed bytes” (in this case the Diffusion model) does “contain” the original images no differently than a compressed folder of images contains the original images.
A lawyer/researcher would likely win this case if they re-create 90%ish of a single input image from the diffusion model with text input.
It does have Mona lisa because of over fitting. But that's because there is too much Mona lisa on internet.
These artist taking part in suit won't be able to recreat any of their work.
As a thought experiment, imagine a variant of something like SD was used for music generation rather than images. It was trained on all music on spotify and it is marketed as a paid tool for producers and artists. If the model reproduces specific sounds from certain songs, e.g. the specific beat from a song, hook, or melody, it would seem pretty straightforward that the generated content was derivative, even though only a feature of it was precisely reproduced. I could be wrong but as far as i am aware you need to get permission to use samples. Even if the content is not published those sounds are being sold by the company as inspiration, and therefore that should violate copyright. The training data is paramount because if you trained the model on stuff you generated yourself or on stuff with appropriate CC license, the resulting work would not violate copyright, or you could at least argue independent creation.
In the feature space of images and art, SD is doing something very similar, so i can see the argument that it violates copyright even without reproducing the whole training data.
Overall, i think we will ultimately need to decide how we want these technologies used, what restrictions should be on the training data, etc, and then create new laws specifically for the new technology, rather than trying to shoehorn it into existing copyright law.