Getty Images v Stability AI - Getty unsuccessful in secondary copyright infringement claim
In a much-anticipated judgment, Mrs Justice Joanna Smith today held that Getty Images’ claim against Stability AI for secondary copyright infringement has been unsuccessful. In an ambitious (and somewhat ingenious) argument, Getty Images had alleged that the act of importing and distributing Stable Diffusion, Stability’s GenAI image generator, into the UK breached sections 22 and 23 of the Copyright, Designs and Patents Act 1988 (“CDPA”).
Stability AI (and AI tool providers more generally) will be breathing a sigh of relief at Mrs Justice Smith’s decision, the first in the UK relating to generative AI tools. Victory for Getty could have had dramatic and far-reaching consequences, including the possibility of injunctive relief against distribution of any AI tool in the UK trained on a claimant’s copyright works (even if trained overseas) and/or the payout of potentially considerable damages.
While Getty will take some satisfaction from Mrs Justice Smith’s finding of trade mark infringement against Stability (discussed in our article here), its primary focus will undoubtedly have been on its secondary copyright infringement claim.
The decision will also disappoint copyright owners whose copyright works make up the training dataset of AI tools including Stable Diffusion. Prior to trial, Getty had dropped its primary copyright infringement allegations (given that all training of Stable Diffusion had taken place outside the UK) and had pinned all its hopes on a secondary copyright infringement claim.
As it stands, while some commentators will likely argue that the outcome of this case continues to support the notion that UK copyright law cannot prevent training of AI models outside the UK, it is notable that other claims, such as that Stability was authorising its users to infringe using the Stability Diffusion tool, were dropped and today’s judgment provides no guidance for or against the viability of such claims.
Mrs Justice Smith also acknowledges in her judgment that the claim raises novel issues of law and we will be unsurprised if Getty appeals the decision. Given this context, in the remainder of this article we examine (a) Getty’s and Stability’s arguments, (b) Mrs Justice Smith’s decision. and (c) whether this decision stands up to scrutiny.
Secondary copyright infringement: key issues
As alluded to above, by trial Getty had dropped its primary copyright infringement allegations and relied solely on two related acts of secondary infringement under ss.22-23 CDPA.
More specifically, it argued that by enabling customers in the UK to access and/or download the Stable Diffusion model Stability had imported, possessed, sold and/or distributed in the UK an “article” (namely, the weights of the Stable Diffusion model) which was and which Stability knew (or had reason to believe) was an “infringing copy” of the copyright works in question.
While Getty acknowledged that Stable Diffusion’s model weights do not store or comprise a reproduction of any specific copyright work, it stated that this did not matter. Pursuant to section 27(3) CDPA, it argued that all that is required is to show that the article’s making in the UK would have constituted an infringement of the copyright work, had it been made in the UK.
Stability denied these allegations of secondary copyright infringement, arguing that:
- “article” is limited to tangible objects, and therefore the Stable Diffusion models which are distributed over the Internet in intangible forms are not articles; and
- the term “infringing copy” cannot apply to Stable Diffusion given that copies of the copyright works were never present within the Stable Diffusion model and the act of training did not involve storing or reproducing the images in the model’s weights.
There were therefore two key questions at trial:
- Is “article” limited to physical objects, or can it extend to intangible or abstract information distributed over the Internet?
- Is an article an “infringing copy” if it does not or no longer contains a copy of the relevant copyright work?
What is an “article”?
In her decision, Mrs Justice Smith concluded that the term “article” can extend to intangibles.
In our view, this is a correct and logical assessment. A decision otherwise would lead to a bizarre scenario whereby AI models distributed via physical means (e.g. on a USB stick) could breach the secondary copyright infringement provisions, whereas AI models distributed over the Internet could not. Agreeing with Getty, Mrs Justice Smith concluded that “if the word “article” were construed as only covering tangible articles, this would deprive authors of protection in circumstances where the copy is itself electronic and it is then dealt with electronically”.
Mrs Justice Smith acknowledged Stability’s arguments, including that (a) the word “article” (and concepts of “importation” and “possession”) ordinarily relate to physical items (or transfer of such items), and (b) that Parliament could have, but did not, refer to electronic copies in the secondary infringement provisions, citing extracts from Hansard and unregistered designs provisions elsewhere in the CDPA in support. However, Mrs Justice Smith preferred Getty’s arguments, namely that:
- Just because the term “article” is commonly used for tangible objects, this doesn’t mean it is incapable of applying to something intangible, such as a newspaper article;
- S.17 CDPA refers to copying “in any material form” including “storing by electronic means” and this cannot be ignored – the words of the statute must be construed in their proper context to ensure coherence and consistency; and
- The “always speaking” principle of interpretation of statutory provisions applies, meaning that a statute should be considered in light of changes that may have occurred since the statute was enacted (including the fact that cloud storage had not yet been invented).
Mrs Justice Smith also referred to the earlier case of Sony v Ball (relating to a RAM chip) in support of her conclusion. While we are unconvinced that this case sheds any light on the proper interpretation of “article” (it is more relevant to “infringing copy”), we do not think anything turns on this point. Overall, we would anticipate Mrs Justice Smith’s assessment of “article” to be confirmed by the Court of Appeal, if appealed.
What is an “infringing copy”?
Under s.27(3) CDPA, the article (here, the model weights of Stable Diffusion) will be an “infringing copy” if it has been imported into the UK and its making in the UK would have constituted an infringement of the copyright works (had it been made in the UK).
The arguments of the parties
Stability’s core argument here was that, whether or not the article is tangible or intangible, an “infringing copy” must continue to be a copy, i.e. a reproduction of a copyright work. On Stability’s argument, the model weights do not store the copyright works and therefore cannot be a “copy”.
Getty’s rebuttal to this argument was straightforward: s.27(3) CDPA simply does not require this. It argued all that is required is that the model’s making would have constituted an infringement. Accordingly, because the making (i.e. training) of Stable Diffusion involved use of the copyright works, s.27(3) is engaged and Stable Diffusion is an infringing copy. In Getty’s submission, there is no requirement that the article once made must continue to retain a copy of the work. In support of this argument, it cited Sony v Ball, in which Laddie J observed:
“an article becomes an infringing article because of the manner in which it is made. Whether it is an infringing article within the meaning of the legislation must be determined by reference to that moment. It matters not whether it remains in that state, since retention as a copy is no part of the definition in the section”.
However, as Stability pointed out, in this case Laddie J separately (and seemingly in conflict with the above) also stated that the RAM chip “is always an article but it is only an infringing article for a short time” (being the period it contains the copy of the copyright work).
Stability also argued that while “infringing copy” is defined in the CDPA as a phrase, this did not negate the meaning of the constituent words. Stability contended that the word “copy” in “infringing copy” was not arbitrary and instead informed the interpretation of “infringing copy”. In particular, at trial Stability had argued that the concept of copying and copies “runs through [the CDPA] like a stick of rock”.
Mrs Justice Smith’s decision
Overall, Mrs Justice Smith held that Stable Diffusion is not an infringing copy of the copyright works. In her judgment, she agreed with Stability that an “infringing copy” must also be a “copy”, observing: “I cannot see how an article can be an infringing copy if it has never consisted of/stored/contained a copy”.
Distinguishing Sony v Ball, in which the RAM chip was an infringing article/copy for a short time, Mrs Justice Smith concluded that “in its final iteration Stable Diffusion does not store or reproduce any Copyright Works and nor has it ever done”. She dismissed Getty’s argument that there is no requirement that an article which is an infringing copy must continue to remain a copy because “it is implicit in the word “continue” that at some point the article has in fact contained an infringing copy”. Mrs Justice Smith then reiterated once more that “the model weights for each version of Stable Diffusion in their final iteration have never contained or stored an infringing copy”.
Finally, Mrs Justice Smith rejected Getty’s policy argument on this point, namely that failure to side with Getty would allow people to circumvent copyright protection by carrying out infringing acts abroad and then “importing the fruits of those acts into the UK”. She dismissed this point, concluding that where an AI model is itself not an infringing copy, it cannot have been Parliament’s intention that it should fall within the meaning in s.27.
Analysis
The overall decision that the weights of Stable Diffusion do not constitute an “infringing copy” is logical. It is a well-established principle that copyright law is territorial and (subject to certain exceptions) acts undertaken in an overseas territory engage the copyright laws of that territory. To have determined that the weights of Stable Diffusion constituted an “infringing copy” would seem to circumvent this territoriality principle and go beyond Parliament’s intentions. Whether or not UK copyright law should protect against overseas training of AI models is, ultimately, a separate policy question.
The legal basis of Mrs Justice Smith’s judgment on this point, however, could be subject to challenge. The decision concludes that the process of training means that model weights never contain a copy of the copyright works and therefore cannot be an infringing copy. In our view, there may be more nuance here and it might be better to consider Stable Diffusion as no longer constituting an infringing copy. As an extreme example, the weights of an AI model trained on a single copyright work would inevitably comprise a copy of that copyright work – aside from being a lousy model, it would also be destined to reproduce the copied copyright work in response to all variety of prompts.
We appreciate, however, that Mrs Justice Smith’s factual conclusion certainly makes her interpretation of s.27(3) more straightforward. Rather than having to read in words into the CDPA about when an article will cease to be an infringing copy, a factual decision that the model has never incorporated a “copy” (and therefore cannot be an infringing copy) neatly side-steps the issue. Will this issue be one that makes its way up to the Court of Appeal (and beyond)? We will wait and see.
