Getty Images v Stability AI - UK trial begins (Part 3 - Defences)

This is the third in the series of posts on the opening days of the Getty Images v Stability AI trial. The posts covering the trade mark claims and copyright and database rights claims are here and here. Today we look at the defences raised by Stability.

Pastiche 

It is worth mentioning to begin with that Stability has dropped its pastiche defence. This is a shame in some respects, as this would have added to the relative paucity of decisions on this defence (like Shazam). 

E-Commerce Safe Harbours

Stability relies on regulations 18 and 19 of the Electronic Commerce (EC Directive) Regulations  2002, which implemented articles 13 and 14 of Directive 2000/31/EC in the UK, namely the caching and hosting defences. As the proceedings and evidence have developed, Stability has limited its reliance on the hosting defence to the ‘image2image’ case, i.e. the use of images by users of Stability, with and without additional text prompts, to create new images, and Stability’s role in that process. Stability seemed unclear as to whether there was any allegation as to any caching, so proceeds on the basis that no discussion was needed on caching.

A neutral and passive cat

Caching defence

This defence gets little attention in Stability’s submissions on the basis that it considers Getty is not placing reliance on any copying taking place in the course of transmission of the outputs to users. It appears from Getty’s submissions that there is some miscommunication on this point, but that if Stability is relying on the defence, it is not entitled to. It focuses on the fact that the claim relates to the provision of the outputs, not the transmission of them, the lack of “onward transmission” of the alleged copies, that the storage is not automatic, immediate and temporary, with the focus on the lack of transience of the storage, and the modifications to the content undertaken by Stability. The scope for this to form a significant part of the decision seems limited.

Hosting defence

Save in relation to where users use Stable Diffusion on their own computer (i.e. not at distance), Stability equates its position with that of Google, as set out in Google France, i.e. that, like Google, it processes data entered by third parties (advertisers and users in Google’s case, users in Stability’s case).

Taking into account what Stability says is a limitation on Getty’s claim to the settings leading to the generation of images closely similar to the inputted image, Stability plays no active role in creating the new image. It compares its role to saving an image from one format into another. Stability claims that those settings requiring very close imitation of the input image are like “switching off the AI” such that the output image is almost identical to the input image. Stability is shifting the responsibility onto the user, of whose acts it has no specific knowledge, and who has uploaded an infringing image.

Getty’s response is that Chapter II, Section 4 of the E-Commerce Directive, which contains the caching and hosting safe harbour defences, only applies to “intermediary service providers”, that being a narrower subset of “information society services”. The defences, Getty says, are limited to those who do nothing other than act as an information society services (Papasavvas and Uber). Getty says Stability is not an intermediary as it is a bipartite rather than tripartite relationship; one cannot be an intermediary when there are only two people. Getty also says that Stability goes well beyond a merely technical, automatic and passive role. Getty relies on Google France, L’Oréal and Swatch as showing that the point at which a platform goes from technical, automatic and passive to not is quite low. 

Onwards

So that brings to an end this series of posts summarising main areas of dispute. There are other potentially important points in this bountiful case, but they are best explored once we have a judgment.

By way of update on the trial, Getty appears* to have been given a chance by the Court of Appeal to appeal the judge’s decision not to allow Getty to rely on ‘CSAM’ material. This involves a partial adjournment to some of the evidence, and a bit of a disruption to the trial timetable. We shall see what impact this has.

*Thanks again to Rebecca Newman for her helpful updates on LinkedIn