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Because no artist knew what ML training even was until early-ish 2022.
If you think it's possible for an artist to have any rights at all over whether their work is used for AI training or not, then clearly they should be able to seek redress for images that have already been used without their permission. Trying to get off on a technicality of "aww shucks, maybe if you had published your work back in 2015 along with an explicit notice that said 'you do not have permission to use this image to train any AI models' then you would have a case, but, you didn't, so too bad..." is just silly.
I'm sure there's a Latin legal phrase that translates to "Bruh. Come on." and I would cite that principle as my justification.
But obviously if you don't think that artists have any right even going forward to control the use of their work for training then this point will be irrelevant for you.
I think it's possible for an artist to have such rights, but IANAL, and that's ultimately a question for the courts to decide. But in any case, no artist would have had to predict the advent of machine learning if they didn't want their images to become part of, to quote aqouta, "general inspiration in the air;" they could have just gated their images behind license agreements that included standard boilerplate stuff about how anyone who downloads the images are only granted rights to do XYZ, all other rights reserved. Again, IANAL and I don't know if the courts would see their lack of such gating and license agreements as giving implicit permission for viewers to use to train ML software, like how it gives other implicit permissions to viewers. Honestly, all this is so new that I'm not sure even a lawyer would be able to make a meaningful prediction on how things will go.
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