法律翻译︱艺术家集体起诉Stability AI等公司著作权侵权：法院驳回大部分诉请？

译者｜邵子恒 北京大学 J.M & J.D.

审稿｜邓雅元 复旦大学法本

         赵文磊 波士顿大学 LL.M.

编辑｜卢晓洋 香港大学法本

         王冰子 烟台大学法本

责编｜李   薇 浙江工商大学法本

艺术家起诉Stability AI

等公司著作权侵权：

法院驳回大部分诉请？

美国联邦法院裁决AIGC案件

Three visual artists brought putative class action against company that created software library, an artificial-intelligence (AI) model that was trained on existing images, for generating images based on text prompts from users and that offered a software product or service for generating such images, against related company, against operator of platform for visual artists' work that also allegedly provided products or services based on same generative-AI software library to allow users to generate images from text prompts, and against software company that allegedly used same software library in its product for generating images from text prompts, alleging that the AI model underlying the software library was trained on class members' works without authorization and asserting claims against all defendants for direct copyright infringement, vicarious copyright infringement, violation of the Digital Millennium Copyright Act (DMCA), violation of California's statutory and common-law rights of publicity, unfair competition in violation of California's common law and its Unfair Competition Law (UCL), asserting a breach-of-contract claim against platform operator, and seeking damages and declaratory relief. Each defendant separately moved to dismiss, and platform operator filed special motion to strike under California's anti-SLAPP statute.

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The motions to dismiss are GRANTED in full, except for the direct copyright infringement claim asserted by plaintiff Anderson against Stability. Plaintiffs are given leave to amend and attempt to cure the deficiencies identified above. The amended complaint, if any, must be filed within thirty (30) days of the date of this Order.

A. Copyright – Counts I & II

指控著作权侵权 — 指控一和二

a. Identifying Infringed Works

被侵权作品的识别

As to Anderson, defendants argue that she cannot proceed with her copyright infringement allegations unless she identifies with specificity each of her registered works that she believes were used as Training Images for Stable Diffusion. In the Complaint, Anderson alleges that she “has created and owns a copyright interest in over two hundred Works included in the Training Data” and that “[e]xamples of Ms. Andersen's Works included in the Training Data can be found here:

https://haveibeentrained.com/?search_text=sarah% 20andersen.cites.”

Defendants contend that those allegations are insufficient and argue that Anderson should be required to identify which specific works from which of her registered collections she believes were copied into the LAION datasets and ended up as Training Images for Stable Diffusion.

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Anderson does not identify which of her specific works covered by a registration were used as Training Images but relies on the output of a search of her name on the “ihavebeentrained.com” site to support the plausibility and reasonableness of her belief that her works were, in fact, used in the LAION datasets and training for Stable Diffusion. She attests that her review of the output pages from that search confirms that some of her registered works were used as Training Images. That is a sufficient basis to allow her copyright claims to proceed at this juncture, particularly in light of the nature of this case, i.e., that LAION scraped five billion images to create the Training Image datasets. At this juncture, the plausible inferences are that all of Anderson's works that were registered as collections and were online were scraped into the training datasets. Her assertions regarding the results of her search on the “haveibeentrained” site supports that inference and makes it reasonable for this case. While defendants complain that Anderson's reference to search results on the “haveibeentrained” website is insufficient, as the output pages show many hundreds of works that are not identified by specific artists, defendants may test Anderson's assertions in discovery.

b. Direct Infringement Allegations

直接侵权指控

Plaintiffs’ primary theory of direct copyright infringement is based on Stability's creation and use of “Training Images” scraped from the internet into the LAION datasets and then used to train Stable Diffusion. Plaintiffs have adequately alleged direct infringement based on the allegations that Stability “downloaded or otherwise acquired copies of billions of copyrighted images without permission to create Stable Diffusion,” and used those images (called “Training Images”) to train Stable Diffusion and caused those “images to be stored at and incorporated into Stable Diffusion as compressed copies.” In its “Preliminary Statement” in support of its motion to dismiss, Stability opposes the truth of plaintiffs’ assertions. However, even Stability recognizes that determination of the truth of these allegations – whether copying in violation of the Copyright Act occurred in the context of training Stable Diffusion or occurs when Stable Diffusion is run – cannot be resolved at this juncture. Stability does not otherwise oppose the sufficiency of the allegations supporting Anderson's direct copyright infringement claims with respect to the Training Images.

Stability's motion to dismiss Count I for direct copyright infringement is DENIED.

原告直接著作权侵权的主要理论依据是，Stability公司创建并使用了从互联网爬取到的LAION数据集的“训练图像”，并将其用于训练Stable Diffusion模型。原告充分指控了直接侵权行为，认为Stability公司“未经许可下载或以其他方式，获取了数十亿张受著作权保护的图像作品副本，用以创建Stable Diffusion”，并将这些图像（称为“训练图像”）用于训练Stable Diffusion，使这些图像以压缩副本的形式存储在了Stable Diffusion模型中。在驳回动议的“初步声明”中，Stability公司反对原告主张的真实性。然而，即使Stability公司也意识到，目前阶段无法确定违反《著作权法》的图片复制行为是发生在Stable Diffusion模型训练过程中，还是发生在Stable Diffusion模型运行过程中。Stability公司并未就安德森提出的训练图像行为存在直接侵权的指控的充分性提出异议。

法院否认了Stability公司驳回直接著作权侵权指控一的动议。

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ii. Against DeviantArt

Plaintiffs offer three theories of DeviantArt's direct infringement:

(1) direct infringement by distributing Stable Diffusion, which contains compressed copies of the training images, as part of DeviantArt's DreamUp AI imaging product; 

(2) direct infringement by creating and distributing their DreamUp, which is itself an infringing derivative work; 

and (3) generating and distributing output images which are infringing derivative works.

原告针对DeviantArt公司的直接侵权行为提出了三种理论：

（1）作为DeviantArt公司开发的DreamUp图像产品的一部分，DeviantArt公司传播包含训练图像压缩副本的Stable Diffusion模型，构成了直接侵权；

（2）DeviantArt公司开发和传播了属于侵权衍生作品的人机界面DreamUp，构成了直接侵权；以及（3）DeviantArt公司生成和传播了作为侵权衍生图像的AI生成图像。

Plaintiffs will be required to amend to clarify their theory with respect to compressed copies of Training Images and to state facts in support of how Stable Diffusion – a program that is open source, at least in part6 – operates with respect to the Training Images. If plaintiffs contend Stable Diffusion contains “compressed copies” of the Training Images, they need to define “compressed copies” and explain plausible facts in support. And if plaintiffs’ compressed copies theory is based on a contention that Stable Diffusion contains mathematical or statistical methods that can be carried out through algorithms or instructions in order to reconstruct the Training Images in whole or in part to create the new Output Images, they need to clarify that and provide plausible facts in support.

In addition to providing clarity regarding their definition of and theory with respect to the inclusion of compressed copies of Training Images in Stable Diffusion, plaintiffs shall also provide more facts that plausibly show how DeviantArt is liable for direct copyright infringement when, according to plaintiffs’ current allegations, DeviantArt simply provides its customers access to Stable Diffusion as a library. Plaintiffs do cite testimony from DeviantArt's CEO that DeviantArt uses Stable Diffusion because Stability allowed DeviantArt to “modify” Stable Diffusion. The problem is that there are no allegations what those modifications might be or why, given the structure of Stable Diffusion, any compressed copies of copyrighted works that may be present in Stable Diffusion would be copied within the meaning of the Copyright Act by DeviantArt or its users when they use DreamUp. Nor do plaintiffs provide plausible facts regarding DeviantArt “distributing” Stable Diffusion to its users when users access DreamUp through the app or through DeviantArt's website.

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A problem for plaintiffs is that unlike in Range Road – observed wholesale copying and performing – the theory regarding compressed copies and DeviantArt's copying need to be clarified and adequately supported by plausible facts. The other problem for plaintiffs is that it is simply not plausible that every Training Image used to train Stable Diffusion was copyrighted (as opposed to copyrightable), or that all DeviantArt users’ Output Images rely upon (theoretically) copyrighted Training Images, and therefore all Output images are derivative images.

Even if that clarity is provided and even if plaintiffs narrow their allegations to limit them to Output Images that draw upon Training Images based upon copyrighted images, I am not convinced that copyright claims based a derivative theory can survive absent “substantial similarity” type allegations. The cases plaintiffs rely on appear to recognize that the alleged infringer's derivative work must still bear some similarity to the original work or contain the protected elements of the original work.

DeviantArt's motion to dismiss Claim I is GRANTED with leave to amend.

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With respect to the other theories, each of them fails for the reasons identified above with respect to DeviantArt.

Midjourney's motion to dismiss Claim 1 is GRANTED with leave to amend.10

c. Vicarious Infringement

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B. DMCA

指控违反《数字千年版权法》

Section 1202(b) of the Digital Millennium Copyright Act (“DMCA”) provides that:

No person shall, without the authority of the copyright owner or the law—

1. intentionally remove or alter any copyright management information;

2. distribute or import for distribution any copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner ... or

3. distribute, import for distribution ... works [or] copies of works ... knowing that copyright management information has been removed or altered without authority of the copyright owner ...

knowing or having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right under this title.

17 U.S.C. § 1202(b).

《数字千年版权法》（"DMCA"）第1202(b)条规定：

未经版权所有者或法律授权，任何人不得

1. 故意删除或更改任何版权管理信息；

2. 明知版权管理信息在未经版权所有者授权而被删除或更改的情况下，传播或以传播为目的导入任何版权管理信息，......或

3. 明知版权管理信息在未经版权所有者授权而被删除或更改的情况下，传播或以传播为目的导入任何作品或作品副本...

明知或有合理理由知道其行为将引发、促成、便利或隐瞒对本标题下任何权利的侵犯。

《美国法典》第17卷第1202(b)条

In the Ninth Circuit, to establish knowing or having reasonable grounds to know that conduct will “induce, enable, facilitate or conceal,” a plaintiff “must make an affirmative showing, such as by demonstrating a past ‘pattern of conduct’ or ‘modus operandi,’ that the defendant was aware or had reasonable grounds to be aware of the probable future impact of its actions.” At the summary judgment stage, this claim requires providing evidence that the alleged infringer knew that the removal of the CMI would “induce, enable, facilitate, or conceal” copyright infringement. At the pleading stage, the claimant must plead facts plausibly showing that the alleged infringer had this required mental state. While “[a]t the pleading stage, mental conditions generally need not be alleged with specificity,” a plaintiff must still “allege sufficient facts to support the reasonable inference that the defendant ‘knew or had a reasonable basis to know that the removal or alteration of CMI ... w[ould] aid infringement.’ ”

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In addition, plaintiffs must clarify and then allege plausible facts regarding which defendants they contend did the stripping or altering in violation of the DMCA and when that occurred.

The DMCA claim is DISMISSED as to each defendant with leave to amend. Plaintiffs shall identify the specific CMI each named plaintiff included in the images that each plaintiff contends was used to training Stable Diffusion. Plaintiffs shall not allege violations of the DMCA by “defendants,” but shall instead identify with specificity the theory of DMCA liability for each defendant and plausible facts in support with respect to each defendant.

原文链接：https://casetext.com/case/andersen-v-stability-ai-ltd