A federal judge has ruled that the copyright infringement lawsuit against AI image developers Stability AI, Midjourney, and DeviantART will continue. This decision comes after the filings made on Monday showed that while U.S. District Judge William Orrick has thrown out some legal accusations, others still remain active.

The legal action was filed by lawyers acting on behalf of artists Sarah Andersen, Kelly McKernan, and Karla Ortiz, claiming that the developers of the AI system used the artists’ works without permission to train the AI models. Although Judge Orrick has knocked out claims under the DMCA and unjust enrichment, he has allowed the claims of copyright and trademark infringement to go through. 

“The court’s decision to advance some claims indicates that the artists will have an opportunity to present their evidence.”

Mark Lezama, an IP litigator at Knobbe Martens

Court ruling opens door for discovery and evidence-gathering

The fair use defense allows some copyrighted material to be used without obtaining permission from the holder of the copyright. For this reason, Judge Orrick observed that fair use would just have to be decided on the basis of the evidence in the case. This means that even as the artist can move with the case, they have to back up their claims to avoid getting a summary judgment. 

According to Lezama, the ruling means that artists are free to make discoveries with the aim of getting evidence in support of their claims. However, if the AI-based companies can make the argument to a judge for fair use during the motion for summary judgment, then the case might never get to the jury trial.

Case puts pressure on AI developers and raises industry concerns

The lawsuit also includes video AI image generator Runway, which will only increase the pressure on AI developers. In October, Judge Orrick dismissed most of the allegations filed against Midjourney and DeviantART on the grounds of lack of sufficient substantiation. However, Andersen’s suit against Stability AI, the developers of Stable Diffusion, is still ongoing. 

Currently, Stability AI has not issued any statements regarding the ongoing case. On the same note, Stability AI’s former top executive, Ed Newton-Rex, who was the head of Audio, has left the company. Newton-Rex also took to publicly calling out Stability AI for alleged infringement. 

Recently, the Dutch-based organization BREIN managed to have a large language dataset that people were using to train AI removed on the grounds of copyright infringement. In a statement issued on Tuesday, BREIN noted that the dataset included 10,000 pirated books, news articles, and Dutch subtitles of movies and TV series. Additionally, the EU recently proposed a new AI regulation known as the AI Act.