Fair use or free ride? The fight over AI training and US copyright law

Recent developments across all three branches of the federal government have reaffirmed the centrality of copyright as a major artificial intelligence policy issue. On 16 July, Sen. Josh Hawley, R-Mo., led a Senate Committee Hearing on the Judiciary hearing titled "Too Big to Prosecute?: Examining the AI Industry's Mass Ingestion of Copyrighted Works for AI Training." Meanwhile, major lawsuits are underway between creators and AI developers, alleging this mass ingestion violates copyright protections and the White House on 23 July released its AI Action Plan, which sidestepped direct copyright concerns but was accompanied by a presidential address that seemed to signal support for developing AI without burdensome legal hurdles.

Yet as lawmakers and litigants stake out positions, a familiar question is taking new shape: how should the law balance creators' rights with the drive to innovate? Recent developments suggest that fair use in the context of AI may depend as much on the sourcing of copyrighted materials as on their use.

Too big to prosecute? 

Hawley framed the July hearing as an opportunity to critique AI developers' use of copyrighted works without licensing or compensation. The senator's opening remarks did not hide his opinion on the matter, equating the use of copyrighted materials for foundation model training to “the largest intellectual property theft in American history." Hawley even called out individual companies, including Meta and Anthropic, accusing them of downloading copyrighted books and articles from illegal "shadow libraries."