The doctrine of fair use has few hard-and-fast rules. It is by definition, a fact and circumstances-based inquiry. AI brings up new circumstances that could not have been envisioned by Congress in 1976, when it created the modern structure of our copyright laws. It’s time for Congress to update its laws.
As the technology's defenders in these copyright cases have argued, AI will allow the public to use and learn information in a myriad of ways. We must allow for this technology to develop and flourish and for our marketplace of ideas to expand. And the doctrine of fair use allows all of us to research, produce scholarship, report the news, teach and criticizeThere is much to gain from the technology, and much to lose if generative AI puts authors out of business.
But we don’t need to allow AI to trample on carefully crafted protections for authors. If we did, the doctrine of fair use could overwhelm the protections contained in the rest of the Copyright Act. Congress must act to define the boundaries of the fair use doctrine and prevent AI providers from wholesale taking protected works to train their products. AI companies should not be completely prohibited from using copyrighted works, but at least in some instances they should be prohibited from doing so without permission. There is much to gain from the technology, and much to lose if generative AI puts authors out of business and deprives us of their true voices.