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Will Oremus and Elahe Izadi, “AI’s future could hinge on one thorny legal question,” The Washington Post, 01-04-2024, https://www.washingtonpost.com/technology/2024/01/04/nyt-ai-copyright-lawsuit-fair-use/

Because the AI cases represent new terrain in copyright law, it is not clear how judges and juries will ultimately rule, several legal experts agreed.

Zachary H. Valentine, “New York Times vs. OpenAI: Fair Use Fight with Billions at Stake,” DarrowEverett LLP, 01-22-2024, https://www.darroweverett.com/new-york-times-vs-open-ai-fair-use-legal-analysis/

Notwithstanding the foregoing, the tides could turn at any time. In a strong fair use case, there is hardly ever a truly “correct” answer. Moreover, the analysis is highly factually-dependent, so there may be additional evidence that shifts the balance in the other direction. Stay tuned on this case, because it has the potential to be significant.

Lawrence Cunningham, “Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting,” Michigan Law Review, https://heinonline.org/HOL/Page?handle=hein.journals/mlr104&id=311&collection=journals&index=

The fair use doctrine further restricts copyright's protective scope based upon numerous factors.85 A key factor is the nature of the work. Copying is substantially restricted as to works of fiction compared to a relatively more expansive fair use zone as to works of fact. Standards reside on the fact end of this continuum. When embodied in law, standards move to the extreme end of the continuum as facts (indeed, standards embodied in law may be the ultimate facts in copyright terms).

Opposition Letter, “Re: Opposition to S. 835, the ‘‘Protecting and Enhancing Public Access to Codes Act’’ (Pro Codes Act),” 02-07-2024, https://cdt.org/wp-content/uploads/2024/02/Letter-Opposing-Pro-Codes-Act.pdf

Providing access to the law is fair use

Arnold E. Brown, II, Kenneth Wilton, Intellectual Property Attorney at Seyfarth, J.D. from the University of California College of the Law, Joseph Myers, Director of Innovation for the Intellectual Property Practice Group at Seyfarth, J.D. from Vanderbilt University, “The District of Columbia Court of Appeals’ Recent Significant Legal Precedent Carries Implications for Standards Organizations,” Seyfarth, 12-19-2023, https://www.seyfarth.com/news-insights/the-district-of-columbia-court-of-appeals-recent-significant-legal-precedent-carries-implications-for-standards-organizations.html

Nature of the Copyrighted Work: The court emphasized that standards fall on the factual end of the “fact-fiction” spectrum, which favors fair use. Moreover, standards that are incorporated by reference into law without modification become virtually indistinguishable from the situation where the text of the standard was copied into the law. Because government documents (.e.g. laws) are not protected by copyright, this factor heavily favored PRO’s fair use argument.

Catherine R. Gellis, “Brief of Amici Curiae Members of Congress in Support of Defendant-Appellant and For Reversal,” United States Court of Appeals for the District of Columbia Circuit, 09-25-2017, https://law.resource.org/pub/us/cfr/regulations.gov.astm.appeal/1694498.pdf

Courts have repeatedly held that increasing public access to information constitutes a public benefit. In Time Inc. v. Bernard Geis Assocs., a district court held that reproducing stills from a historically important video was for the public benefit because there is a societal interest in the people having the “fullest information available.” 293 F. Supp. 130, 146 (S.D.N.Y. 1968); see also Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004) (publishing corporate emails about voting machines was in the public interest). Meanwhile in Sony, the Supreme Court found that the ability to record television programs benefitted the public because it extended access to television. 464 U.S. at 454. Similarly, because Public Resource’s activities expand the public’s access to the laws that govern them, it has also created a public benefit. That, combined with the fact that Public Resource is a non-profit organization and its activities are non-commercial, supports a finding that the first fair use factor weighs strongly in its favor.4

Catherine R. Gellis, “Brief of Amici Curiae Members of Congress in Support of Defendant-Appellant and For Reversal,” United States Court of Appeals for the District of Columbia Circuit, 09-25-2017, https://law.resource.org/pub/us/cfr/regulations.gov.astm.appeal/1694498.pdf

If the Court decides to recognize a copyright interest for SDOs in codes and standards that persists even after such codes and standards are incorporated by reference in laws or regulations, and if the Court is does not believe that due process concerns outweigh the SDOs’ private, pecuniary interests, the Court should hold that Public Resource’s activities constitute fair use. “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, ‘[t]o promote the Progress of Science and useful Arts . . . ’.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const. art. I, § 8, cl. 8.) Fair use is “one of the most important and wellestablished limitations on the exclusive right of copyright owners.” H.R. Rep. No. 94-1476, at 65 (1976). Originally judicial doctrine, Congress provided statutory guidance for finding fair use according to the following factors:

Mark Montgomery, Robert Nielson, and Garrett Lindemann, “Plausible Scenarios For Artificial Intelligence in Preventing Catastrophes,” KYield, 12-23-2014, https://kyieldos.com/2014/12/23/plausible-scenarios-for-artificial-intelligence-in-preventing-catastrophes/

Super Volcanoes

Adam Clark Estes, “How copyright lawsuits could kill OpenAI,” Vox, 01-18-2024, https://www.vox.com/technology/2024/1/18/24041598/openai-new-york-times-copyright-lawsuit-napster-google-sony

Depending on who you ask, what’s at stake is either the future of the news business, the future of copyright law, the future of innovation, or, specifically, the future of OpenAI and other generative AI companies. Or all of the above.

Catherine Shu, “Can the law be copyrighted?,” TechCrunch, 04-09-2019, https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/

The case may have ramifications beyond the building industry, including for compliance technology in other sectors and even individuals who want to reproduce the law. At its core are several important questions: Is it possible to copyright the law or text that carries the weight of law? Because laws and codes are often written by private individuals or groups instead of legislators, what rights do they continue to have over their work? Several relevant cases, including ones involving building codes, have been decided by different circuits in the United States Court of Appeals, which means the UpCodes lawsuit may potentially be heard by the Supreme Court.

Corynne McSherry, “Fair Use Continued to Bear the Weight of Protecting Speech and Innovation: 2018 in Review,” Electronic Frontier Foundation, 01-01-2019, https://www.eff.org/es/deeplinks/2018/12/fair-use-continued-bear-weight-protecting-speech-and-innovation-2018-review

Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate. New technologies and services depend on the creation of multiple copies as a matter of course. At the same time, copyright terms cover works many decades old and copyrighted software appears in more and more devices. Taken together, these developments mean the potential reach of copyright may extend ever further. Fair use makes sure that the rights of the public expand at the same time.

Will Oremus and Elahe Izadi, “AI’s future could hinge on one thorny legal question,” The Washington Post, 01-04-2024, https://www.washingtonpost.com/technology/2024/01/04/nyt-ai-copyright-lawsuit-fair-use/

Judges so far have been wary of the argument that training an AI model on copyrighted works — the “input” side — amounts to a violation in itself, said Jason Bloom, a partner at the law firm Haynes and Boone and the chairman of its intellectual property litigation group.

The democratic peace — the idea that democracies rarely fight one another — has been called “the closest thing we have to an empirical law in the study of international relations.” Yet, some contend that this relationship is spurious and suggest alternative explanations. Unfortunately, in the absence of randomized experiments, we can never rule out the possible existence of such confounding biases. Rather than commonly used regression-based approaches, we apply a nonparametric sensitivity analysis. We show that overturning the positive association between democracy and peace would require a confounder that is 47 times more prevalent in democratic dyads than in other dyads. To put this number in context, the relationship between democracy and peace is at least five times as robust as that between smoking and lung cancer. To explain away the democratic peace, therefore, scholars must find far more powerful confounders than already those identified in the literature.

NOAM CHOMSKY: I want to make a couple of remarks below about the severe difficulty of maintaining and instituting democracy, the powerful forces that have always opposed it, the achievements of somehow salvaging and enhancing it, and the significance of that for the future. But first, a couple of words about the challenges that we face, which you heard enough about already and you all know about. I don’t have to go into them in detail. To describe these challenges as “extremely severe” would be an error. The phrase does not capture the enormity of the kinds of challenges that lie ahead. And any serious discussion of the future of humanity must begin by recognizing a critical fact, that the human species is now facing a question that has never before arisen in human history, question that has to be answered quickly: Will human society survive for long?

Well, as you all know, for 70 years we’ve been living under the shadow of nuclear war. Those who have looked at the record can only be amazed that we’ve survived this far. Time after time it’s come extremely close to terminal disaster, even minutes away. It’s kind of a miracle that we’ve survived. Miracles don’t go on forever. This has to be terminated, and quickly. The recent Nuclear Posture Review of the Trump administration dramatically increases the threat of conflagration, which would in fact be terminal for the species. We may remember that this Nuclear Posture Review was sponsored by Jim Mattis, who was regarded as too civilized to be retained in the administration—gives you a sense of what can be tolerated in the Trump-Pompeo-Bolton world.

There could be a resurgence of fascism in the U.S. Even though these three factors no longer exist, similar problems lurk under the surface of modern political life, problems that could conceivably drive a resurgence of fascist movements. The overall U.S. economy has been performing well, but levels of inequality continue to rise. Wide areas of America are increasingly mired in permanent unemployment and a massive drug epidemic. These are the sorts of economic conditions that drove fascist support in the 1930s; another major crisis like the Great Recession is likely to bolster nationalist appeals even more. Few people worry about the communist threat today. Yet fear of communism has been replaced by fear of globalists and elite technocrats (still often tinged with anti-Semitism) who supposedly seek to undermine and control the lives of ordinary Americans. The recently uncovered National Security Council memo reflected these sentiments clearly, arguing that Trump’s opposition is made up of a cabal of Islamists, cultural Marxists and global bankers. The extreme right-wing blogger Mike Cernovich, who has been praised by Donald Trump Jr., recently published a cartoon showing national security adviser H.R. McMaster as a puppet manipulated by George Soros, who in turn was being manipulated by a monstrous green hand labeled “Rothschilds,” a historically wealthy Jewish family. The third factor — the appearance of an ideological rival that seemed to outperform America’s corrupt democracy — is today reflected most clearly in fears over the rise of China. Over the past decade, numerous observers have argued that liberal democracy is being supplanted by the kind of state capitalism exemplified by China, in which a capitalist system of production is undergirded by state ownership and guidance, with little room for democracy. Americans cannot be complacent about democracy Over the 20th century, democracy spread from a few isolated outposts to most corners of the world. Today its superiority seems self-evident to people who have been steeped in its moral virtues and material successes. But over the past century, mere moral appeal has rarely been sufficient for its survival. It would be a convenient mistake to accept the victory of democracy as a historical morality play, the predestined triumph of good over evil. For much of the 20th century, democracy’s success depended on the existence of powerful countries such as the United States, examples to be imitated. More than any appeal to freedom, democracy spread because it promised economic prosperity and political stability. But when democracies failed to deliver, as during the Great Depression, the tide of popular and elite opinion shifted just as readily and just as quickly against democratic institutions. The key lesson of the 20th century is that democracy is more fragile than we might like.

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

One could also object that addressing SDO access fees is unnecessary since they hardly represent the only obstacle to an interested citizen’s ability to understand the law or enforce her legal rights. Again, financial resources can indisputably matter to an individual’s ability to effectuate her legal rights. In litigation, for example, representation by counsel can often affect the outcome.310 Substantial numbers of individuals with legal issues ranging from child custody to potential deportation to foreclosure lack resources and access to low-cost legal services and are thus compelled to represent themselves, generally to their detriment.311 Relatedly, some have commented that incorporated standards tend to be “technical” and thus are not likely to be accessible without outside expertise.

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

One could raise a number of objections. Perhaps individuals are not beating down the doors of SDOs to read these standards. Then greater public access would not increase accountability. Numerous public comments filed to the OFR in 2012 on incorporation by reference, however, came from concerned individuals and small businesses seeking to read the standards.306 Owing to the challenges of locating IBR material on websites and the cost of access, the number of individual requests SDOs have received for these standards and the number of challenges to the standards almost certainly understate the amount of public interest in reading them. Further, the OFR is proposing to eliminate regulatory restrictions, beyond reducing the volume of the Federal Register, on the sort of private standards an agency can incorporate by reference. This is likely to increase the number of rules of general public interest that are incorporated by reference.

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

Small businesses charged with compliance, however, have continued to complain that the prices charged by SDOs are too high for them to apprise themselves of their obligations.192 And as noted above, SDOs can even make standards effectively unavailable by no longer offering them for sale. The financial and other access barriers present real challenges for even compliance-focused businesses and, indeed, raise constitutional due process concerns.193

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

And as noted, private SDOs do generally charge significantly. The amounts far exceed the “direct costs of search, duplication, or review” that federal agencies may charge for FOIA requests for internal agency documents.76 By contrast, there is no charge to access statutes and federal regulations (other than IBR rules) in over 1,200 governmental depository libraries.77 As numerous groups and citizens have recently written, the fees that SDOs charge can be prohibitive, particularly for ordinary citizens and small businesses subject to the standards. For example, an architect wrote to the OFR noting that his work often required compliance with the Americans with Disabilities Act and its implementing regulations, which include some incorporated standards; the occasional access needed to incorporated standards was so expensive that the standards could not be considered “reasonably available” to him.78 Similarly, a homeowner pointed out in public comments that homeowners are normally permitted to perform repairs and renovations to their own homes without hiring professionals but that for him to understand the applicable sprinkler system rules, he would have had to purchase that single standard privately at an “excessive” cost of $82.79

Katherine Klosek, “No One Can Own the Law—So Why Is Congress Advancing a Bill to Extend Copyright to It?,” Association of Research Libraries, 04-19-2024, https://www.arl.org/blog/no-one-can-own-the-law-so-why-is-congress-advancing-a-bill-to-extend-copyright-to-it/

The SDOs supporting the Pro Codes Act assert that it would increase access to the law by incentivizing the SDOs to provide online “reading rooms” where the public could read the standards incorporated by reference. However, such reading rooms are unnecessary because public interest groups already provide free online access to the standards in more usable formats. As Corynne McSherry, legal director at the Electronic Frontier Foundation (EFF), stated: “This legislation is a solution in search of a problem: at least one public interest organization is already providing much better access to the law, also for free, with no financial impact on the standard organizations.” In 2023, McSherry successfully represented Public.Resource.Org in ASTM v. Public.Resource.Org, where the US Court of Appeals for the DC Circuit held that fair use permitted Public.Resource.Org to post online codes incorporated by reference because it served a nonprofit, educational purpose.