They don't own the copyright, but they do have a "non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works". https://www.facebook.com/help/instagram/478745558852511
If they didn't have that (or something similar) they couldn't serve the image to other users. Well, they could, but without something like that someone will sue them for showing a picture they uploaded to someone they didn't want to see it (or any number of other gotchas).
They store the image or video (host/copy), distribute it over their network and to users (use/run), they resize it and change the image format (modify/translate), their site then shows it to the user (display/derivative work), and they can't control the setting in which a user might choose to pull up an image they have access to (the "publically" caveat)
It sounds like a lot, but AFAIK that's what that clause covers and why it's necessary for any site like them.
It certainly does cover the needs of hosting and display to other users, but it doesn't permit just that. It's expansive enough to let them do just about anything they could imagine with the pictures.
Only insofar as legal precedent has established it to mean that. If someone sues you for a use that hasn't been found in court to fall under this clause it will be more difficult to win that case.
IANAL, and my jargon may be off, but I think that in the scenario where you get sued for something that's been litigated to fall under this clause in the past, you can basically say "even if we assume the evidence and claims are accurate, it's obviously in the clear based on prior cases", if the judge agrees, you win without going to trial, which is a "summary judgement" I think.
On the flip side, if someone is trying to apply the clause in a novel, not previously litigated way, you're way less likely to get that summary judgement and it will have to be argued in court.
It works the other way too, if I wrote a eula that used different phrasing than what's been established prior, say to make it more obviously cover just the normal stuff for user uploaded images, summary judgement is less likely to succeed because no court had ever weighed in on my novel phrasing as covering those actions in that way.
There's also the risk that if you make the phrasing too narrow (specifying resizing of the image) then when a new tech comes along that's reasonable to apply (e.g. some ML process to derive a 3d scene from images, or make them) exactly zero user uploaded images you store at that point could benefit from that until you go back and ask the user to agree to that too. The question then becomes how worth is narrowing the wording when you can accidentally paint yourself into a corner.
Or how about if it had been phrased "display on a monitor" had been used years back pre-smartphone era? You could be sued for making user uploaded media available to view on phones since that wasn't in the license granted to you by your users!
When you cover all the little edge cases, you end up with the seemingly overbroad clause most companies use.
An important thing to remember is that the legal interpretation of a text can differ almost arbitrarily from the plain English meaning of the text as written.
Training generative ML tools is qualitatively different from showing on website, even if both are technically “derivative works”, so this is a massive bait-and-switch. Is it the first time something is acceptable by the letter of pre-existing law but not the spirit?
> Is it the first time something is acceptable by the letter of pre-existing law but not the spirit?
Well .. no. It happens each time that Google et. al find a new way to use your data. It's what all we German "privacy nuts" have warned people about for years and the reason that the older German data protection laws and now EU regulations require you to state exactly what you are doing with data ("purpose limitation"). If companies can just write "oh well, we will use it for something" how can anyone evaluate whether they should accept without knowing the future? Right. They cant.
So, this could be another case of the EU kicking Facebook in the face. We'll see.
You're just stating an agreement between Meta and cowboyscott. The copyright holder of Ironman image never agreed it.
The problem here is cowboyscott doesn't own a copyright of Ironman image. But his uploading of image may match the condition of fair use of US or similar copyright exemption rule in their country's copyright law. It effectively works as copyright laundering.
You don't even really need the middleman - Disney has surely uploaded pictures of Ironman to these sites so it would have them either way.
But I don't know if it's really laundered anything. If you say "Hey Meta AI, make me poster for my cookie company that has Iron man eating my cookies" I'm pretty sure Disney could still sue you. It could still sue you if you instructed a human to draw a picture that had Ironman in it so I don't even know if you need a new legal framework.
Copyright law as it exists today allows one to create transformative works. There is little to suggest that an AI trained on copyrighted works is in any way violating that copyright when inference is run.
Copyright law as it exists allows a creative process to create transformative works.
Computers cannot create copyright. They are not creative. Just because I save your image as webp or jpeg or whatever doesn't mean I have changed the copyright. Just because I zip it up with a hundred other images doesn't mean the zipfile is free of your copyright.
Effectively, computers are executing math, and math by itself does not construct new copyright, since copyright is the result of a creative human process.
As far as I can tell, current AI are fundamentally not too different from wildly complex compression algorithms. You compress a billion images down to a model. The model now can reproduce a fraction or the whole of the copyrighted work with some low probability. Rote and probabilistic compression.
The creator of the AI might own the copyright for what it produces if constructing the AI was suitably creative, i.e. if you construct an AI that trains on random noise and produces images, those are clearly something you, the author of the AI's code, can claim copyright over... But current AI seem like math more than anything else. It's plausible that reinforced learning or some other part of training does imbue creativity into the process, but that doesn't seem obviously true to me.
You’re confusing the training process with inference, you’re confusing the copyright status of a model with the copyright status of the model output, and your confusing compressed data with a compression algorithm.
Argument "it's just math underneath" is flawed. Photoshop also has math underneath - does it mean that if you use Photoshop, you're not doing a creative process?
Also, saying that it's math ergo it's not creative is something that most people on HN would not agree with.
As for "it's just compression" - compression means that you can recover the original data - perhaps with a loss of quality, but still you can. With modern ML you mostly can't.
The human using photoshop is providing the creativity, and thus the human using photoshop owns the copyright, if they do sufficiently creative work (like actually drawing).
However, when using the current image gen AIs, the input you provide is a sentence of text and a couple parameters, a minimal amount of creativity.
This would be akin to opening photoshop and doing minimal work, such as choosing "resize image, apply blur filter".
If you open photoshop and do a few rote transformations, you indeed have not imbued enough creativity to create a new copyrighted work, the work retains its original copyright if you just open it in photoshop and resize it.
'the input you provide is a sentence of text and a couple parameters, a minimal amount of creativity"
Have you tried creating art with AI? Usually it takes hundreds of iterations of text-to-image, image-to-image, inpainting, outpainting using dozens of different models.
"A sentence is all it takes" is like saying all it takes to make a million is crossing some numbers on a grid.
308.2 Creativity
A work of authorship must possess “some minimal degree of creativity” to sustain a
copyright claim. Feist, 499 U.S. at 358, 362 (citation omitted).
“[T]he requisite level of creativity is extremely low.” Even a “slight amount” of creative
expression will suffice. “The vast majority of works make the grade quite easily, as they
possess some creative spark, ‘no matter how crude, humble or obvious it might be.’” Id.
at 346 (citation omitted).
> The model now can reproduce a fraction or the whole of the copyrighted work with some low probability. Rote and probabilistic compression
The VAE can be thought of as a codec, but the denoising process can recover images that are far removed from anything that is in the training data. Nobody has ever created an impressionist painting of Winston Churchill riding a purple lizard through the gates of retrofuturist Constantinople, yet almost infinite variations of that image exist in the latent space. If anything, it can be thought of as an intricate form of collage, which we do give special treatment for copyright purposes.
