A day after the US Copyright Office dropped a bombshell pre-publication report challenging artificial intelligence firms' argument that all AI training should be considered fair use, the Trump administration fired the head of the Copyright Office, Shira Perlmutter—sparking speculation that the controversial report hastened her removal.
The report that the Copyright Office released on Friday is not finalized but is not expected to change radically, unless Trump's new acting head potentially intervenes to overhaul the guidance.
It comes after the Copyright Office parsed more than 10,000 comments debating whether creators should and could feasibly be compensated for the use of their works in AI training.
"The stakes are high," the office acknowledged, but ultimately, there must be an effective balance struck between the public interests in "maintaining a thriving creative community" and "allowing technological innovation to flourish." Notably, the office concluded that the first and fourth factors of fair use—which assess the character of the use (and whether it is transformative) and how that use affects the market—are likely to hold the most weight in court. //
Only courts can effectively weigh the balance of fair use, the Copyright Office said. Perhaps importantly, however, the thinking of one of the first judges to weigh the question—in a case challenging Meta's torrenting of a pirated books dataset to train its AI models—seemed to align with the Copyright Office guidance at a recent hearing. Mulling whether Meta infringed on book authors' rights, US District Judge Vince Chhabria explained why he doesn't immediately "understand how that can be fair use."
"You have companies using copyright-protected material to create a product that is capable of producing an infinite number of competing products," Chhabria said. "You are dramatically changing, you might even say obliterating, the market for that person's work, and you're saying that you don't even have to pay a license to that person." //
Some AI critics think the courts have already indicated which way they are leaning. In a statement to Ars, a New York Times spokesperson suggested that "both the Copyright Office and courts have recognized what should be obvious: when generative AI products give users outputs that compete with the original works on which they were trained, that unprecedented theft of millions of copyrighted works by developers for their own commercial benefit is not fair use."
