The second version of my pre-prepint article “Fair Use and the Origin of AI Training” is now available on SSRN. Download here. It will be published by the Houston Law Review later this year.
The revised version adds a new section to explain why courts should reject the Copyright Office’s pre-publication report’s endorsement of a new theory of copyright dilution or market dilution, which the Copyright Office conceded was “uncharted territory,” not recognized by any federal court decision.
In my article, I explain why it’s not only “uncharted,” but also unconstitutional. Penalizing completely non-infringing works under fair use extends copyright beyond the grant permitted by the Progress Clause, which limits the scope copyright for authors to “their writings,” but not beyond. And it violates the First Amendment as an overbroad and unjustified content-based discrimination that impermissibly singles out and disfavors an entire class of non-infringing works.
Under the First Amendment, “more speech, not less, is the governing rule.”
