The way Nightshade works (assuming it does work) is by confusing the features of different tags with each other. To argue that this is illegal would be to argue that mistagging a piece of artwork on a gallery is illegal.
If you upload a picture of a dog to DeviantArt and you label it as a cat, and a model ingests that image and starts to think that cats look like dogs, would anybody claim that you are breaking a law? If you upload bad code to Github that has bugs, and an AI model consumes that code and then reproduces the bugs, would anyone argue that uploading badly written code to Github is a crime?
What if you uploaded some bad code to Github and then wrote a comment at the top of the code explaining what the error was, because you knew that the model would ignore that comment and would still look at the bad code. Then would you be committing a crime by putting that code on Github?
Even if it could be proven that your intention was for that code or that mistagged image to be unhelpful to training, it would still be a huge leap to say that either of those activities were criminal -- I would hope that the majority of HN would see that as a dangerous legal road to travel down.
If you upload a picture of a dog to DeviantArt and you label it as a cat, and a model ingests that image and starts to think that cats look like dogs, would anybody claim that you are breaking a law? If you upload bad code to Github that has bugs, and an AI model consumes that code and then reproduces the bugs, would anyone argue that uploading badly written code to Github is a crime?
What if you uploaded some bad code to Github and then wrote a comment at the top of the code explaining what the error was, because you knew that the model would ignore that comment and would still look at the bad code. Then would you be committing a crime by putting that code on Github?
Even if it could be proven that your intention was for that code or that mistagged image to be unhelpful to training, it would still be a huge leap to say that either of those activities were criminal -- I would hope that the majority of HN would see that as a dangerous legal road to travel down.