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Picking apart intellectual property: AI and the great copyright debate

To what extent can copyrighted material be used without permission as training data to train an AI system?

Facial recognition technology continues to advance. - Image © Tim Sandle
Facial recognition technology continues to advance. - Image © Tim Sandle

A recent class action lawsuit in the U.S. under the name Andersen v. Stability AI represents the latest in raising questions about copyright infringement and the use of AI-generated works. This is a recently filed class action suit by three artists that alleges that three such AI products that generate images both copy and steal copyrighted material.

Looking at the significance of this is patent and copyright partner Randy McCarthy, who is a partner at national law firm Hall Estill and a registered U.S. patent attorney who practices in all areas of intellectual property law prosecution, litigation, and counseling.

McCarthy has many articles published on the use of AI and how it impacts copyright, trademarks and patents.

Of Andersen v. Stability AI, Mr. McCarthy explains to Digital Journal the important questions the case raises – and the possible outcome and impact for AI technology.

McCarthy outlines the legal significance of the case: “The class action lawsuit (Andersen v. Stability AI) raises some very important questions that need to be resolved, one way or another, regarding the rights that artists and other content creators have in the face of AI systems. The resulting judgment could be a landmark case that shapes the AI landscape for many years to come.”

With the specifics McCarthy observes: “In this particular case, the complainants are arguing that direct copyright infringement has taken place by the Stability AI system, both from a training data standpoint and from an internal algorithm standpoint.”

“The case raises some of the most basic and fundamental questions regarding AI systems that need to be resolved, either by the Courts or by Congress”, McCarthy continues.

“These include, to what extent can copyrighted material be used without permission as training data to train an AI system? Is it permissible as here to physically embody copyrighted material in the actual AI algorithm without permission, or is this permissible transformation? To what extent does substantial similarity play a role in evaluating AI generated content as infringing?”

“It is highly unlikely that the case will be dismissed outright, although the Federal Judge is currently considering a motion to dismiss filed by the defendants. It is likely that the Judge will not grant the motion by the defendants and instead require further pleadings on the part of the plaintiffs. At present, the plaintiffs are alleging direct infringement of the works rather than substantial similarity of the output AI product, the latter of which is the more traditional path used to demonstrate copyright infringement,” says McCarthy.

“There is another pending case (Getty Images (US), Inc. v. Stability AI.) that was also filed earlier this year in Delaware. This case is more directed to the substantial similarity of the output images, including the improper notations of the Getty Images watermark. Between these two cases, most of the issues that need to be addressed are covered, and both should be watched closely,” concludes McCarthy.

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Dr. Tim Sandle is Digital Journal's Editor-at-Large for science news. Tim specializes in science, technology, environmental, business, and health journalism. He is additionally a practising microbiologist; and an author. He is also interested in history, politics and current affairs.

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