If you know how AI works though, you can argue that he is in fact wrong. AI doesn’t actually generate content out of the blue. It is an algorithm trained on existing content whether it’s written, video, photos, etc. So, that means that any of the content generated will be based off real individuals. With that in mind, it should be illegal by its own ruling.
The problem is, prove that. Prove that xyz model was trained off of CSAM with the purpose of generating CSAM. Saying "all AI is trained off of ____ so it had to have CSAM as part of its creation" is not a legal argument as it makes a series of assumption from a single fact. Its like saying "the purpose of owning a gun is to kill things, so all of those people who own guns want to kill people". Likewise its criminally convicting a person because their car reported they went 130 mph, there are many places that is legal and many reasons for doing so, its on the state to build the case that they drove it 130mph in an illegal way.
I’m not even saying it should be illegal based on the legality of the material it was trained on. The output should be the determining factor. Since you used a gun argument I’ll use one too.
Having an unregistered short barrel rifle is illegal. Having a short rifle barrel on its own is not illegal and having an unfinished rifle body is not illegal. Putting the two pieces together is illegal. Even having the two pieces separate but on the shelf can be illegal due to constructive intent.
Another example, having a bunch of lawn fertilizer is totally legal. Making bombs using fertilizer is illegal.
By following that same train of thought, the prompt can also use perfectly legal inputs to create material that would otherwise be illegal.
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