Reed Smith In-depth

Key takeaways

  • The decision only dealt with a limited question of whether the selected claims have a reasonable prospect of success, which is not a very high bar to satisfy in such a complex case. The High Court’s Judge considered that the claims should not be struck and that they should be considered at trial.
  • The conclusion that can be drawn is that training and/or development of a model would not constitute an infringement under English law if this process did not take place in the UK. The judgment also highlighted what kind of evidence will be considered to establish the place where a model was trained. Evidence may include checking (i) location of the development teams (including UK and non-UK employees as well as independent contractors), and (ii) resources used for the development (the questions may, for instance, be what machines were used for the development and whether there has been any kind of data transfer to the jurisdiction).
  • Controversially, the judgment left open the possibility that an AI model could qualify as an infringing copy of its training data, thereby suggesting that the Stability AI model could be embedding a copy of its training data, and also held that the secondary infringement of importing, possessing or dealing with an infringing copy, a type of infringement traditionally reserved to tangible objects, may be capable of extension to intangible information such as making available software through a website, thereby signaling the Court’s openness to a potential departure from classic copyright and information law principles.


  • The claimants, Getty Images Inc and related companies, claim that the defendant, Stability AI, “scraped” millions of images from Getty’s websites without its consent, and used those images unlawfully as input to train and develop its deep-learning AI model Stable Diffusion and that Stable Diffusion’s output, accessed by users in the UK via a variety of means including through Stability AI’s commercial platform operating under the name of Dream Studio, was also itself infringing in that it reproduced a substantial number of Getty’s copyright works or bore Getty’s trade marks.
  • Getty claims copyright infringement, database right infringement, trade mark infringement and passing off.
  • The defendant has not yet filed a defence to the claim but has instead made an application seeking reverse summary judgment and/or strike out of various issues arising out of the claims before the High Court.

Issues on which summary judgment was sought

Stability AI applied for reverse summary judgment and/or strike out in respect of the following two claims in the case:

  • A claim of copyright and database right infringement arising from Getty’s allegation that during the development and training of Stable Diffusion, visual assets and associated metadata, including Getty’s copyright works, were downloaded on servers and/or computers in the UK.
  • A claim of secondary infringement of copyright by reason of the importation into the UK, or possession in the course of a business, sale or letting for hire in the UK, of an “article”, namely the pre-trained Stable Diffusion software, so as to infringe section 22 or 23 of the Copyright, Designs and Patents Act 1988 (CDPA).

The argument with regard to the first claim was factual in nature. Copyright, like database right, is a territorial right which confers protection on its holder only within the territory of the United Kingdom. Stability AI’s key argument was that the training and development of Stable Diffusion did not take place in the UK. It asserted that all of the computing resources it used for training were, at all times, located outside the UK and that, in particular, all of the training computing infrastructure was located in two U.S. data centres operated by Amazon Web Services Inc.

The argument with regard to the second claim hung on a point of law, namely the interpretation of the word “article” in the CDPA – in particular, whether sections 22 and 23 of the CDPA are limited to dealings in articles which are tangible things or whether they may also encompass dealings in intangible things (such as making available software on a website).