The anticipated U.S. Copyright Office Report titled “Copyright and Artificial Intelligence, Part 3: Generative AI Training” was released in a pre-publication version on May 9, 2025.
Copyright and Artificial Intelligence, Part 3: Generative AI Training
The report is 113 pages with 588 footnotes gives a lot of feedback from comments for and against AI platforms copying everything that has been digitized in the world. It provides a good explanation of how AI platforms are trained by making copies of copyrighted content, which is one of the exclusive legal rights of the copyright holder.
While the report identifies this copying as “prima facie infringement” of copyrighted content, it leaves the door wide open for a primary “fair use” defense by AI developers. And it will likely be the main defense that is being used in the court cases that are already in progress. On Feb. 11, 2025 the first of these cases was decided. The court ruled against the “fair use” defense used by Ross Intelligence in the Thomson Reuters v Ross Intelligence infringement case.
A large portion of this report discusses how and why the “fair use” doctrine will be used to defend the actions of AI developers. It is a good explanation of the concept and how the courts may weigh the four factors that are used to determine if a use was fair or not. The US Copyright Office did not, however, make any blanket statements or take a stance on AI developers’ liability. The report basically says infringement liabilities will be decided in the courts on a case-by-case basis.
The most significant factor is the “Purpose and character of the use” that considers the “transformative” nature of the outputs of the AI platforms. This factor was the key to the court ruling in favor of Google in 2015 in Authors Guild v Google, declaring that Google’s digitally coping millions of books without permission or payment was “transformative” and therefore “fair use.”
The bottom line is that the US Copyright Office expects some of the courts to rule against the AI developers, as they just did in Reuters v Ross, and rule in favor of others, as they did in Authors Guild v Google.
The legal landscape is very unsettled, with numerous lawsuits and legislative efforts underway. The US Copyright Office’s role is to implement laws passed by Congress and court decisions. The Office creates the rules, regulations and policies for that implementation, and this report is not that. It does provide a framework to analyze copyright implications of generative AI training.