Technology

But where is the infringement?

This NYT article includes the same several copyrighted images and they surely haven't paid any license. It's obviously fair use in both cases and NYT's claim that "it might not be fair use" is just ridiculous.

Worse, the NYT also includes exact copies of the images, while the AI ones are just very close to the original. That's like the difference between uploading a video of yourself playing a Taylor Swift cover and actually uploading one of Taylor Swift's own music videos to YouTube.

Even worse the NYT intentionally distributed the copyrighted images, while Midjourney did so unintentionally and specifically states it's a breach of their terms of service. Your account might be banned if you're caught using these prompts.

Because this proves that the “AI”, at some level, is storing the data of the Joker movie

I don't think that's a justified conclusion.

If I watched a movie, and you asked me to reproduce a simple scene from it, then I could do that if I remembered the character design, angle, framing, etc. None of this would require storing the image, only remembering the visual meaning of it and how to represent that with the tools at my disposal.

If I reproduced it that closely (or even not-nearly-that-closely), then yes, my work would be considered a copyright violation. I would not be able to publish and profit off of it. But that's on me, not on whoever made the tools I used. The violation is in the result, not the tools.

The problem with these claims is that they are shifting the responsibility for copyright violation off of the people creating the art, and onto the people making the tools used to create the art. I could make the same image in Photoshop; are they going after Adobe, too? Of course not. You can make copyright-violating work in any medium, with any tools. Midjourney is a tool with enough flexibility to create almost any image you can imagine, just like Photoshop.

Does it really matter if it takes a few minutes instead of hours?

I've had this discussion before, but that's not how copyright exceptions work.

Right or wrong (it hasn't been litigated yet), AI models are being claimed as fair use exceptions to the use of copyrighted material. Similar to other fair uses, the argument goes something like:

"The AI model is simply a digital representation of facts gleamed from the analysis of copyrighted works, and since factual data cannot be copyrighted (e.g. a description of the Mona Lisa vs the painting itself), the model itself is fair use"

I think it'll boil down to whether the models can be easily used as replacements to the works being claimed, and honestly I think that'll fail. That the models are quite good at reconstructing common expressions of copyrighted work is novel to the case law, though, and worthy of investigation.

But as someone who thinks ownership of expressions is bullshit anyway, I tend to think copyright is not the right way to go about penalizing or preventing the harm caused by the technology.

Wasn't that known? Have midjourney ever claimed they didn't use copyrighted works? There's also an ongoing argument about the legality of that in general. One recent court case ruled that copyright does not protect a work from being used to train an AI. I'm sure that's far from the final word on the topic, but it does mean this is a legal grey area at the moment.

Because this proves that the “AI”, at some level, is storing the data of the Joker movie screenshot somewhere inside of its training set.

Is it tho? Honest question.

If the training data is obviously copyright infringement, then the data must be retrained in a more appropriate manner.

This is the crux of the issue, it isn't obviously copyright infringement. Currently copyright is completely silent on the matter one way or another.

The thing that makes this particularly interesting is that the traditional copyright maximalists, the ones responsible for ballooning copyright durations from its original reasonable limit of 14 years (plus one renewal) to its current absurd duration of 95 years, also stand to benefit greatly from generative works. Instead of the usual full court press we tend to see from the major corporations around anything copyright related we're instead seeing them take a rather hands off approach.

So let’s say I ask a talented human artist the same thing.

Doesn’t this prove that a human, at some level, is storing the data of the Joker movie screenshot somewhere inside of their memory?

But its not like our laws have changed

And that's the problem. The internet has drastically reduced the cost of copying information, to the point where entirely new uses like this one are now possible. But those new uses are stifled by copyright law that originates from a time when the only cost was that people with gutenberg presses would be prohibited from printing slightly cheaper books. And there's no discussion of changing it because the people who benefit from those laws literally are the media.