Both lawyers and the photographer are not looking great, but the legal questions seem much harder to answer than it might appear at first. Keep in mind that German copyright law is quite different from its British or American equivalent. Also, IANAL.

If I understand it correctly:

0. Laion uses WAT-files from Common Crawl to generate a list of suitable image-text pairs, including a URL to the raw image. [0]
1. Laion downloads the raw images for further processing.
2. Based on step 2, Laion creates a curated list of image-text pairs. The images themselves are uncurated.
3. Using [1], anyone can download the images. Tags such as `noai` are respected.

-- Question 1: Under German law, is Laion allowed to do what they are doing?

Maybe, but far from clear.

The lawyers [2] point to § 44b UrhG [3], which is rooted in [7], and § 66d UrhG [4]. These norms state that you can use publicly available data for data mining, especially if you are doing it as part of scientific research. Copyright holders may prohibit such activities but must do it in machine readable form on the website.

First, I am not positive that Laion's activities fall under the law's definition of "data mining". The law says data mining is an activity done in order to gain insight into "patterns, trends and correlations". But Laion does not even attempt to gain any insight from the data, it just wants to provide a data set for model building [0]. I don't think § 44b UrhG is applicable at all.

Second, Laion cannot simply yell "it's for research". To use of § 66d UrhG, you (a) must qualify as a research organisation, and (b) there must not be any private organisation in the background directing the research. Whether or not Laion qualifies as such would have to be decided by the courts, but I think it's questionable.

Overall I think the lawyers' position as outlined in [2] is not very strong. Perhaps they find better arguments when a court is involved.

-- Question 2: Under German law, does the photographer have any claim against Laion?

Difficult.

The photographer asked Laion to remove his work from their dataset [5]. The lawyers replied that Laion does not store any photographies so there is nothing to remove. It seems that the photographer did not understand this correctly when writing the initial cease-and-desist letter.

Does Laion infringe on the photographer's copyright if they mereley distribute links? The photographer argues that Laion admittedly does download raw images themselves, which pertains to Question 1.

Aside from this, in German law there is a theory called "Störerhaftung" [6]. It means that if what you are doing enables copyright infringement you may be liable as well, even if you do not distribute the content yourself. If you get notified that you participate in any such infringement by a copyright holder you must cease and desist immediately.

In some cases, distributors of hyperlinks to copyrighted material have been found to commit copyright infringement, though it has been rather the exception. I have no idea how a court would decide in the current case.

One may argue that simply adding the equivalent of a `robots.txt` will suffice to end the infringement, but that is too simple. The photographer sells his work to a customer who may use it on their website, but does not want anyone else to use his work.

However, the photographer cannot control whether or not the customer uses a `noai` on the website. [3] is opt-out, but for this to work, the photographer must have the opportunity to opt-out. It seems the law did not sufficiently appreciate this scenario. It also seems it did not foresee instances where content mining enables AI models replicating (parts of) the content they did mine.

One plausible scenario is that the court denies the photographer's claims to Laion because he can contractually mandate clients to place a `noai` tag on their website. In any case, I think the photographer would have to demonstrate how specifically Laion cost him money as there are no punitive damages in German law.

[0] https://laion.ai/blog/laion-5b/
[1] https://github.com/rom1504/img2dataset
[2] https://www.alltageinesfotoproduzenten.de/2023/04/24/laion-e...
[3] https://www.gesetze-im-internet.de/urhg/__44b.html
[4] https://www.gesetze-im-internet.de/urhg/__60d.html
[5] https://www.alltageinesfotoproduzenten.de/2023/02/20/laion-v...
[6] https://de.wikipedia.org/wiki/St%C3%B6rerhaftung
[7] https://en.wikipedia.org/wiki/Directive_on_Copyright_in_the_...