CP solves –Warhol v. Goldsmith muddies court ruling of fair use on gen AI, courts beginning to rule against AI fair use of copyrights.

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.

While the Google Books case might work in the tech firms’ favor, the fair-use picture was muddied by the Supreme Court’s recent decision in a case involving artist Andy Warhol’s use of a photograph of the rock star Prince, said Daniel Gervais, a professor at Vanderbilt Law and director of its intellectual property program. The court found that if the copying is done to compete with the original work, “that weighs against fair use” as a defense. So the Times’s case may hinge in part on its ability to show that products like ChatGPT and Bing compete with and harm its business.

“Anyone who’s predicting the outcome is taking a big risk here,” Gervais said. He said for business plaintiffs like the New York Times, one likely outcome might be a settlement that grants the tech firms a license to the content in exchange for payment. The Times spent months in talks with OpenAI and Microsoft, which holds a major stake in OpenAI, before the newspaper sued, the Times disclosed in its lawsuit.

Some media companies have already struck arrangements over the use of their content. Last month, OpenAI agreed to pay German media conglomerate Axel Springer, which publishes Business Insider and Politico, to show parts of articles in ChatGPT responses. The tech company has also struck a deal with the Associated Press for access to the news service’s archives.

A Times victory could have major consequences for the news industry, which has been in crisis since the internet began to supplant newspapers and magazines nearly 20 years ago. Since then, newspaper advertising revenue has been in steady decline, the number of working journalists has dropped dramatically and hundreds of communities across the country no longer have local newspapers.

But even as publishers seek payment for the use of their human-generated materials to train AI, some also are publishing works produced by AI — which has prompted both backlash and embarrassment when those machine-created articles are riddled with errors.

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