Magistrate Judge Lisa Cisneros held a Zoom hearing today in the Andersen v. Stability AI suit. Defendant AI companies, which make AI image generators, have filed a motion to bar Dr. Ben Zhao, one of the plaintiffs’ experts and a chaired professor at the University of Chicago, from seeing the datasets and other confidential business information of the AI companies.
The reason: Dr. Zhao is one of the developers of an adversarial tool called Nightshade, which is a free, open-source program that can be used to “poison” images that might be collected for datasets to use in AI training. The poison sabotages the effectiveness of the training of the AI model.
Judge Cisneros asked the lawyers for both sides to answer whether the cases they cited should be read to apply to situations in which an expert was disqualified due to being an employee or a consultant for a competitor of one of the parties in the cases discussed.
Joe Gratz, arguing for the defendants, argued that the case law shouldn’t be read so narrowly, but they, instead, stand for the principle that courts bar experts from confidential information where it is likely the expert, whether intentionally or unintentionally, may use the confidential information in a way that would harm the company whose information was disclosed to the expert. Gratz said they have no objection to Dr. Zhao testifying as an expert at trial. But they object to giving him access to the confidential information of the companies, including their datasets, from which he would be able to determine if some of the images had been affected by Nightshade–and then figure out ways to make Nightshade even more effective and escape detection, as his own declaration states an intent in doing.
Joshua Stein, arguing for the plaintiffs, contended that none of the cases cited involved an academic who was not doing any work directly in competition with a party. Stein took issue with Gratz’s use of the word “poison” and tried to characterize Nightshade as a tool that enables people to stop AI companies from “taking” what is not theirs. Editor’s Note: in fairness to Gratz, Zhao’s own website for Nightshade uses the word “poison” four times to describe what it does.
The lawyers also debated whether an alternative expert to Zhao existed, and the Judge appeared to be skeptical that the plaintiffs could not find any other expert (who didn’t develop such tools), given the extensive literature related to image generation. Gratz said that the defendants also did not think any mitigation conditions could avoid the threat that Dr. Zhao posed if he can access their datasets and confidential information because Zhao was still involved in Nightshade, including efforts to make it escape detection of AI companies.
By the end of the 49 minutes or so, Judge Cisneros said she would need more time to deliberate over this “difficult question” and may even order further briefing.