By trial, Getty accepted there was no evidence that training and development occurred in the UK, so those primary infringement ‘training and development’ and “outputs” claims were abandoned and the database right claim fell away, since it was inherently linked to the abandoned claims. The key copyright question that remained was therefore whether Stability AI was liable for secondary copyright infringement for importing, possessing or dealing with an article which it knew or had reason to believe was an ‘infringing copy’.
The judge held an “article” can be intangible for the secondary infringement provisions (i.e., an ‘article’ is not limited to purely physical objects and can include electronic copies stored in an intangible medium, such as the cloud) and therefore she accepted that downloads could constitute “importation” into the UK. However, she held that the Stable Diffusion model is not an “infringing copy” because although training involved reproductions during the process (outside the UK), the final model does not store or reproduce the copyrighted works and never has done. On her analysis, an “infringing copy” still has to be a copy in the ordinary copyright sense; an artefact produced using infringing copies is not itself an infringing copy where it has never contained the works. Accordingly, the court dismissed the secondary infringement claim.
The court did find Stability AI liable for extremely limited, historic trade mark infringement. Getty has permission to appeal to the Court of Appeal. The appeal will focus on the meaning of ‘infringing copy’, for the purposes of secondary infringement (e.g. importation) in the context of an AI model.