Federal courts will rule in favor of OpenAI in New York Times v. OpenAI now based on the fact that fair use allows copying a work if it’s for a different purpose.

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.

“Technically, doing that can be copyright infringement, but it’s more likely to be considered fair use, based on precedent, because you’re not publicly displaying the work when you’re just ingesting and training” with it, Bloom said. (Bloom is not involved in any of the active AI copyright suits.)

Fair use also can apply when the copying is done for a purpose different from simply reproducing the original work — such as to critique it or to use it for research or educational purposes, like a teacher photocopying a news article to hand out to a journalism class. That’s how Google defended Google Books, an ambitious project to scan and digitize millions of copyrighted books from public and academic libraries so that it could make their contents searchable online.

The project sparked a 2005 lawsuit by the Authors Guild, which called it a “brazen violation of copyright law.” But Google argued that because it displayed only “snippets” of the books in response to searches, it wasn’t undermining the market for books but providing a fundamentally different service. In 2015, a federal appellate court agreed with Google.

That precedent should work in favor of OpenAI, Microsoft and other tech firms, said Eric Goldman, a professor at Santa Clara University School of Law and co-director of its High Tech Law Institute.