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Culture War Roundup for the week of December 19, 2022

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Begun, the Butlerian Jihad has:

/r/dune is not accepting AI-generated art.

This applies to images created using services such as DALL-E, Midjourney, StarryAI, WOMBO Dream, and others. Our team has been removing said content for a number of months on a post-by-post basis, but given its continued popularity across Reddit we felt that a public announcement was justified.

We acknowledge that many of these pieces are neat to look at, and the technology sure is fascinating, but it does technically qualify as low-effort content—especially when compared to original, "human-made" art, which we would like to prioritize going forward.

Ok, the Dune one's a little funny given the in-universe history, but a pretty wide breadth of art-focused hosts have banned AI-generated art (to the extent they can detect it) or have sometime-onerous restrictions on what AI-genned art can be used. Some sites that still allow AI art, such as ArtStation or DeviantArt, have had no small amount of internal controversy as a result. Nor is this limited to art: StackOverflow's ban on ChatGPT-generated responses makes a lot of sense given ChatGPT's low interest in accuracy, but Google considers all AI-generated text spam as a category for downranking purposes, to whatever extent they care to detect it. And a lot of mainstream political position seems about what you'd expect.

Most of these are just funny, in no small part because alternatives remain (uh... maaaaaybe excepting Google?). This is a little more interesting:

We are writing in response to your correspondence of October 28, 2022 as counsel to Kristina Kashtanova. Kashtanova was recently granted copyright registration no. VAu001480196 for her work “Zarya of the Dawn” (the “Work”).

Subsequent to Kashtanova’s successful registration of the Work, the Office initiated cancellation of her registration on the basis that “the information in [her] application was incorrect or, at a minimum, substantively incomplete” due to Kashtanova’s use of an artificial intelligence generative tool (“the Midjourney service”) as part of her creative process. The concern of the Office appears to be that the Work does not have human authorship, or alternatively that Kashtanova’s claim of authorship was not limited to exclude elements with potential non-human authorship. We are writing to affirm Kashtanova’s authorship of the entirety of the Work, despite her use of Midjourney’s image generation service as part of her creative process.

Zarya of the Dawn isn't actually a good piece -- and not just for the gender Culture War reasons; its MidJourney use isn't exactly masterful and probably just an attempt to cash in on Being First -- but most art isn't good. Quality isn't the standard used by the Copyright Office or copyright law more broadly.

The standard is complicated, not least of all because copyright itself is complicated. Sometimes that's in goofy ways, like in Naruto v. David Slater et al. (better known as the Ape Selfie case), whether an animal had the ability to bring a copyright suit for a picture taken by that animal. While Naruto fell on statutory standing questions in an unregistered copyright suit, the Copyright Office issues a regularly-updated compendium of practices for those seeking registration that seems to reference it or a similar case, among other pieces:

As discussed in Section 306, the Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable.

The U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit. Examples:

  • A photograph taken by a monkey

But while animal pictures or naturally-formed rocks are one example left outside of the scope of "authorship", it's not the only one:

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

Most of these examples are trivial : size changes, manufacturing requirements, simple changes to a song's key, or direct output of diagnostic equipment. The most complex currently listed example is "A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern", which is the sort of highly specific thing that makes you sure someone's tried it.

It'll be interesting to see if the next update has text on AI-generation, and if so, if the Office tries to separate different levels of human interaction (or, worse, the models themselves).

The US Copyright Office's determinations do not control court interpretation of the Copyright Act, so it's possible that prohibitions on registering ai-generated or ai-assisted art or text would still leave some ownership rights. But it's unlikely, and registration is required before someone can get statutory damages. Now most people aren't going to care much about the legal exactidues of copyright for their Original Character Donut Steel 8-Fingers to start with. Because all copyright claims are federal or international law, and there is no federal small claims court (and no meaningful international court), these protections are fairly minimal for hobbyist or end-users even when present and when the user cares, anyway.

But it isn't too hard to think of problems that could come about, anyway. There's already a small industry of pirates that scrape public spheres for artwork and creations to repeat (cw: badly drawn cartoon butts). To what limited extent these have been kept in check, that's because traditional retailers are at least worried about the outlier case where someone's willing and obnoxious enough to prove a point, or at least unsure they're at far enough distance for tort and PR purposes. And this is a signal, if a weak signal, for other matters like whether the business would care for liability if their USB cable burns down your house, or you demand a return for the clothing that fell apart seconds after you put it on, or a thousand other minor things.

It's... not clear how long that lasts, if AI-gen is outside of copyright, categorically, but also hard for humans to detect (and filtered for AI-art humans find hard to detect). I was cautiously hopeful that tools like StableDiffusion could end up a helpful tool for artists, but a lot of artists are concerned enough about the concept to be willing to burn down the field and join hands with Disney to do it. I don't think people are going to like what happens when the groups optimized for a copyright-free existence become hard to distinguish from their own sphere, and able to happily intervene within it.

And, from a deeper level, it's not hard to miss some writing on the wall for the broader concept. StableDiffusion 2.0 has released a few weeks ago, closely followed by 2.1, with some nice new features and also a couple somewhat noticable subtractions: the new tokenizer has removed tags related to celebrities and almost all living or recently-living artists, along with anything that triggered the NSFW filter. The upcoming StableDiffusion 3.0 plans to allow a manual opt-out for artists from the training side.

The stated reasons for these changes are condensed here, but the less overt reason is probably public controversy and things like this. I reallllllly don't want to get into the legal questions of the state actor doctrine, but I would like to suggest that there's legal spaces around this discussion that might be weighing heavily on his mind..

Now, in theory, there's some technical advantages to this approach, not just the bizarre legal ones. Furry Diffusion trainers have already found many problems in tuning 1.x-variants due to the often-overloaded nature of common terms, and the broad concept of encouraging models more specifically focused for the interests and desires of specific people makes a good deal more sense than the limits and flaws of post-generation filtering.

But in turn, that personally-optimized tuning is hard and energy-intensive, and currently not available for a lot of people, even as GPU prices have dropped a bit.

Or it might be reasonable to argue that these excluded spaces not that important, were we not also having thousands of culture war battles to the teeth over everything else remotely related to sex, or spending tremendous amounts of (tbf, unuseful) attention on celebrities, or near-worshipping some of the excluded artists. And it's hard to see why all three are uniquely reasonable to set-aside.

And accepting these limitations at the OpenAI initial training level risks anyone trying to uncollar a locally-tuned version being stigmatized and viewed as interested solely in the very bad acts that OpenAI fears being tarred with themselves. That Eshoo letter, after all, is just as pissed about locally-generated 'bad' art as that made on a server.

Perhaps coincidentally, attempts to fund a porn-friendly version just got kicked off Kickstarter, on the tail end of this rather vague post.

I'm somewhat skeptical that the only pressures being applied are the public ones.

Really enjoyed these posts, two comments I'd add.

On the copyright side, I think it makes sense that the output of AI art generators can't be copyrighted. At least, as long as the use of copyrighted art to train an AI model isn't copyright infringement (I think it would pretty clearly be fair use currently). Otherwise you could do something like:

1. Find an artist whose style you like

2. Train an AI art generator on that artists works

3. Produce new works in that same style, whose copyright you own but the original author doesn't

That seems problematic to me. Especially since if you had spent time learning to produce art in that same artists style without the AI it could be a copyright violation. Laundering copyright violations through an AI seems like a problem to me.

On the legal front, I can't believe anyone is surprised by this arising as an issue. I remember when AI dungeon was new and it got used so often for the production of NSFW content that the model started to produce it in response to ordinary queries, eventually leading the developers to make some of changes to the model. The legal questions also seem complex. If I generate photo-realistic CP of a child who does not actually exist, is that a crime? Does it generate liability? Just for the individual actually producing or possessing the image or for the model developers? What if I create nudes of a celebrity? Would that be a tort? Maybe related to the use of likeness or image? What about various states revenge porn laws?

These questions do not have obvious answers to me and I understand why no one wants to be the first to find out!

Especially since if you had spent time learning to produce art in that same artists style without the AI it could be a copyright violation.

I don't understand this; it is my understanding that this absolutely would NOT be a copyright violation. A style cannot be copyrighted, AFAIK, and the styles of influential artists have been copied forever (indeed, that is what it means to be an "influential artist). Can you elaborate?

If I generate photo-realistic CP of a child who does not actually exist, is that a crime?

Not in the US but possibly elsewhere. Unless of course the image is obscene or somehow is unprotected and illegal speech in another way, which is unlikely.

Unless of course the image is obscene

How could such an image possibly not be obscene

Because in the United States, a work is obscene only if 1) the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; AND 2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; AND 3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

In contrast, a work can be child pornography even if it is not obscene. So, a work which has substantial literary value, when taken as whole, is not obscene, but might be child porn. Similarly, a work which does not depict sexual conduct (or excretion, as some courts have said) cannot be obscene, but it can nevertheless be child pornography, because "the legal definition of sexually explicit conduct [in the federal child porn statute] does not require that an image depict a child engaging in sexual activity. A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive." See here. And see US v. Knox, 977 F. 2d 815 (3rd Cir 1992)[Child porn conviction upheld where "[t]he tapes contained numerous vignettes of teenage and preteen females, between the ages of ten and seventeen, striking provocative poses for the camera. The children were obviously being directed by someone off-camera. All of the children wore bikini bathing suits, leotards, underwear or other abbreviated attire while they were being filmed. The government conceded that no child in the films was nude, and that the genitalia and pubic areas of the young girls were always concealed by an abbreviated article of clothing. The photographer would zoom in on the children's pubic and genital area and display a close-up view for an extended period of time . . . with the obvious intent to produce an image sexually arousing to pedophiles. "].

Hence, many works can be child porn, yet not obscene.