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this post was submitted on 06 Sep 2023
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Stable Diffusion
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I thought I read some years ago about a supreme court ruling that "fictional" abuse material was legal because there is no real victim. Maybe that has been superseded by later rulings.
The ruling was that "fictional" abuse material was legal because it was an expression of free speech. Courts have thus far unanimously agreed, however, that generative AI doesn't constitute authorship. Under the same principle, generative AI should not constitute protected speech under the 1st Amendment.
I don't follow that logic. We would be in bad shape if we applied the standard of copyrightability to protected speech. By that logic, making a derivative Winnie The Pooh work would be unprotected speech on the grounds that it was public domain.