The US Department of Justice (DOJ) has filed a Statement of Interest asking the US District Court for the Southern District of New York to rule that using copyrighted written works to train large language models (LLMs) is fair use under US copyright law.
The filing was made in the matter known as IN RE: OPENAI, INC. COPYRIGHT INFRINGEMENT LITIGATION. This resulted when the United States Judicial Panel on Multidistrict Litigation consolidated twelve cases originally brought in the Southern District of New York and Northern District of California against OpenAI and Microsoft involving generative artificial intelligence (genAI) issues.
The plaintiffs are authors, book publishers, and media companies (including The New York Times). They assert that OpenAI scraped and downloaded their copyrighted text without permission to train LLMs like ChatGPT and that ChatGPT outputs infringing works.
As Reuters explains,
The Times’ lawsuit, first filed in 2023, accuses OpenAI and its largest financial backer Microsoft of using millions of newspaper articles without permission to train ChatGPT. A group of authors, including John Grisham, Jonathan Franzen and George R.R. Martin, separately sued the companies the same year for using their books to train OpenAI’s popular chatbot.
As Reuters notes,
The pending cases will likely turn on whether AI systems make fair use of copyrighted material by using it to create transformative new content. The first two judges to consider the issue issued diverging rulings last year.
U.S. District Judge William Alsup in San Francisco called Anthropic’s use of books for AI training “quintessentially transformative.”
Judge Vince Chhabria, also in San Francisco, ruled for Meta in a similar case two days later and also called its use of copyrighted books transformative. Chhabria warned, however, that AI training would not be fair use “in many circumstances” and raised concerns that generative AI could “flood the market” with content that competes with human creators.
In a recent summary judgement motion, the authors argued that AI is “diluting the market for books across the board,” and that fair use “does not countenance such catastrophic threats to the incentive to create.”
The news outlet plaintiffs argued in their own brief that ChatGPT diverts users from their websites and displaces the market for their work.
The US government, via the DOJ, contended that “The United States has a strong interest in continuing to develop a robust and competitive artificial intelligence industry that sets the standard for the practice and procedure of AI use globally.”
According to the DOJ’s brief, “The United States thus has a strong interest in the question whether training AI models on written works constitutes “fair use” under copyright law.”
Among other things, says the DOJ, “effective integration of AI will be critical for U.S. national security capabilities,” because AI can be used for tasks such as “analyzing intelligence information,” “enhancing weapon systems (such as drones and robotic ships),” and “providing recommendations on the battlefield (such as where to target missile strikes).”
Thus, says the DOJ,
Rules of law that make it significantly more difficult to develop a robust AI industry in the United States therefore threaten national security and give a competitive advantage to foreign adversaries who are not so encumbered.
Constraining LLM development, according to the DOJ, would thwart creative and scientific progress while hindering American prosperity and economic mobility.
Also, says the DOJ, “An erroneous fair use ruling would hamper competition in the market for LLMs, because only the largest technology companies might have the capital necessary to pay licensing fees.”
The DOJ argued that the copying of copyrighted text as part of training an LLM is “transformative” and thus allowed under fair use doctrine.
The DOJ admitted, however, that “certain uses may not be transformative if the LLM reconstructs and disseminates an original copyrighted work.”
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