Category: Fair use

Scholarship: How courts should treat AI models’ memorization of some content from training datasets

AI researchers are studying the phenomenon that AI models unintentionally memorize some of the content from the training datasets. Unintentional Memorization of Some Training Content A recent paper “How much do language models memorize” by researchers from Meta, Google DeepMind, Cornell, and NVIDIA (John X. Morris, Chawin Sitawarin, Chuan Guo, Narine Kokhlikyan, G. Edward Suh,…
Read more: Scholarship: How courts should treat AI models’ memorization of some content from training datasets
Why copyright dilution, endorsed by the Copyright Office’s Report, is not only “uncharted,” it’s unconstitutional.

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…
Read more: Why copyright dilution, endorsed by the Copyright Office’s Report, is not only “uncharted,” it’s unconstitutional.
Who will decide fair use first — Judge Alsup or Judge Chhabria?

Two cases in the Northern District of California have had oral arguments on the respective defendant’s motion for summary judgment on fair use: Kadrey v. Meta and Bartz v. Anthropic. Both involve lawsuits brought by book authors. Both involve the defendant’s use of so-called pirated books datasets, or shadow libraries, which defendants contend were used…
Read more: Who will decide fair use first — Judge Alsup or Judge Chhabria?
My paper on “Fair Use and the Origin of AI Training.” Or why the Copyright Office Report is wrong about fair use and why courts should reject its view.

I am happy to share my latest law review article, “Fair Use and the Origin of AI Training,” forthcoming in Houston Law Review in the fall. Download a preprint copy of my paper at SSRN by following this link. Main points in my article, “fair use and the origin of ai training” The origin of…
Read more: My paper on “Fair Use and the Origin of AI Training.” Or why the Copyright Office Report is wrong about fair use and why courts should reject its view.
Opinion: Why the Copyright Office’s “pre-publication” Report is flawed–both procedurally and substantively.

The dust is still settling in the aftermath of the Copyright Office’s issuance of a “pre-publication” version of its long-awaited Report analyzing the issue of fair use in AI training. A cloud now hangs over the Report–and whether it’s DOA–following President Trump’s firing of the Register of Copyrights Shira Perlmutter less than 24 hours after…
Read more: Opinion: Why the Copyright Office’s “pre-publication” Report is flawed–both procedurally and substantively.
US Copyright Office issues pre-publication version of 3rd Report on AI Training and Fair Use. AI training is transformative, but degree depends on how AI functions. Supports new market dilution theory of harm under Factor 4.

On late Friday, the U.S. Copyright Office issued its long-awaited report on AI training and fair use. It’s labeled “Pre-publication Version,” though it says no substantive changes will be made. UPDATE on May 8: President Trump reportedly fired Shira Perlmutter, the Register of Copyrights, which now raises a cloud of uncertainty over whether this report…
Read more: US Copyright Office issues pre-publication version of 3rd Report on AI Training and Fair Use. AI training is transformative, but degree depends on how AI functions. Supports new market dilution theory of harm under Factor 4.
Expressing skepticism of both sides’ arguments, Judge Chhabria poses 12 Questions on fair use & pirated books

Ahead of Thursday’s hearing on the summary judgment motions, Judge Chhabria issued an order at 3 PM PT for the parties’ lawyers to be prepared to answer. These are all excellent questions–showing the Judge has dissected the parties’ arguments with probing scrutiny. If I were a lawyer doing the argument, I would not be getting…
Read more: Expressing skepticism of both sides’ arguments, Judge Chhabria poses 12 Questions on fair use & pirated books
GW Law Professor Robert Brauneis & other copyright scholars file amicus brief v. Meta’s fair use defense in Kadrey book case

George Washington University Law School Professor Robert Brauneis and other copyright scholars submitted an amicus brief opposing Meta’s fair use defense. This brief can be read as a response to another copyright law scholars brief filed by Harvard Law Professor Rebecca Tushnet in support of Meta’s fair use defense (see Related Stories below). Here’s the…
Read more: GW Law Professor Robert Brauneis & other copyright scholars file amicus brief v. Meta’s fair use defense in Kadrey book case
After adding White & Case lawyers, ROSS Intelligence asks Judge Bibas to certify copyrightability and fair use for interlocutory appeal

After adding lawyers from White & Case, including appellate specialists, ROSS Intelligence asks Judge Bibas to certify copyrightability of headnotes and fair use questions to Third Circuit for interlocutory appeal. ROSS cites Judge Bibas’ own conflicting decisions. This seems like a long shot with the trial date in May looming. But this case has had…
Read more: After adding White & Case lawyers, ROSS Intelligence asks Judge Bibas to certify copyrightability and fair use for interlocutory appeal
What are the odds the Supreme Court finds AI training is fair use (versus infringement)?

It’s interesting to listen to people’s reactions to Judge Bibas’s stunning reversal in ruling that ROSS Intelligence’s training of its AI model on copyrighted Westlaw headnotes for uncopyrightable judicial decisions was not transformative or different in purpose, and, ultimately, not a fair use. Jason Calacanis of the All In podcast interpreted the decision as suggesting…
Read more: What are the odds the Supreme Court finds AI training is fair use (versus infringement)?