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Fair Use

The US copyright doctrine allowing certain unlicensed uses of protected works, and the tests courts apply to it.

Current stories

investConfirmed4 publishers

A single Times call-spread buyer risks $407,000 on an October copyright ruling

Unsealed internal comments from Microsoft and OpenAI executives speak to the substitution question that fair use turns on. The visible market response is one options trade worth about $407,000 in premium, expiring in October.

Perspective Coverage

4 publishers
Builder
Builder 23%
Operator
Operator 40%
Investor
Investor 37%

Reality

Evidence62
Adoption
Not scored
Hype gap+35
Incentives72
Confidence60
buildConfirmed5 publishers

USA TODAY Co. asks a federal court to make OpenAI pay for training on 19 publications

USA TODAY Co. sued OpenAI for more than $250 million and an injunction over training ChatGPT on work from 19 publications. The case tests whether a publisher can force payment and limits on the training data that teams building on OpenAI's models depend on.

Perspective Coverage

5 publishers
Builder
Builder 28%
Operator
Operator 38%
Investor
Investor 34%

Reality

Evidence68
Adoption
Not scored
Hype gap+5
Incentives62
Confidence66
leadershipOne report1 publisher

OpenAI asks Judge Stein to measure copying by output rather than by corpus

Three summary judgment briefs in the consolidated news publisher case describe the same conduct using denominators that never meet, and the one the court adopts will set what licensed text is worth to every buyer.

Publishers:ppc.land

Reality

Evidence55
Adoption
Not scored
Hype gap+15
Incentives75
Confidence50
productOne report1 publisher

A few seconds of karaoke knock Lindsay Ellis's 2.5-hour cruise video off YouTube

Warner/Chappell's claim on a few seconds of a friend's karaoke took Lindsay Ellis's two-and-a-half-hour cruise video off YouTube, Ellis says. Any team shipping long-form video now has to count stray background music as a risk to the whole upload.

Publishers:techdirt.com

Reality

Evidence35
Adoption
Not scored
Hype gap+15
Incentives70
Confidence45
productOne report1 publisher

OpenAI and Microsoft records describe chatbots replacing visits to the sources they draw on

OpenAI's ChatGPT chief wrote that its products "are largely substitutive, period," in internal documents made public September 17 in the Times lawsuit. That helps publishers argue over AI search, where Fast Company says the money is, but the labs still set the price.

Publishers:fastcompany.com

Reality

Evidence55
Adoption
Not scored
Hype gap+15
Incentives60
Confidence50
investConfirmed3 publishers

Thomson Reuters keeps its win over ROSS in the first appellate test of AI-training fair use

Thomson Reuters kept its copyright win over ROSS Intelligence on appeal, the first US appellate ruling on fair use in AI training. ROSS had been refused a Westlaw licence as a rival, so the ruling lets owners of training data set a price or decline to sell.

Perspective Coverage

3 publishers
Builder
Builder 19%
Operator
Operator 38%
Investor
Investor 43%

Reality

Evidence55
Adoption30
Hype gap+25
Incentives55
Confidence60
buildOne report1 publisher

OpenAI's LibGen cleanup channel became evidence in the authors' summary-judgment brief

Authors suing OpenAI filed a 162-page statement of facts drawn from its Slack threads and paper drafts, including a 2022 project to delete LibGen data. Any team training on outside data should expect its dataset codenames and cleanup channels to be read the same way.

Publishers:dev.to

Reality

Evidence55
Adoption
Not scored
Hype gap+15
Incentives70
Confidence50
productOne report1 publisher

OpenAI and Microsoft say plaintiffs' lawyers paid for research to supply evidence their clients lacked

OpenAI and Microsoft accuse Susman Godfrey, the plaintiffs' firm in the consolidated AI copyright suit, of paying for research and hiding the payment. At stake is the kind of market-dilution evidence a federal judge said last year that authors suing Meta had not presented.

Publishers:techdirt.com

Reality

Evidence35
Adoption
Not scored
Hype gap+35
Incentives60
Confidence40
productConfirmed6 publishers

Microsoft measured a 93 percent click-through drop to nytimes.com from its own answer engine

A newly unredacted brief in the New York Times' case quotes a Microsoft director calling AI scraping the largest theft of labor in human history. The underlying exhibits are still sealed, so the quotes arrive without their original context.

Perspective Coverage

6 publishers
Builder
Builder 20%
Operator
Operator 44%
Investor
Investor 36%

Reality

Evidence60
Adoption
Not scored
Hype gap+30
Incentives72
Confidence64
buildConfirmed5 publishers

OpenAI's own executives call ChatGPT substitutive of the journalism it trained on

Discovery quotes unsealed on Thursday have Nick Turley, Greg Brockman and Satya Nadella describing the products as substitutes, while OpenAI and Microsoft have told a Manhattan court that their training does not replace journalism.

Perspective Coverage

5 publishers
Builder
Builder 33%
Operator
Operator 38%
Investor
Investor 29%

Reality

Evidence72
Adoption
Not scored
Hype gap+20
Incentives78
Confidence68
securityConfirmed3 publishers

Nadella testified that chatbots have "substituted" for publisher sites

The news publishers' partly unsealed summary judgment motion quotes Microsoft's CEO on substitution and on licensing paywalled training data. Microsoft says he was speaking to broad principles about how people find information, and that his words are not conclusions about copyright.

Publishers:404media.co news.bloomberglaw.com orlandosentinel.com

Perspective Coverage

3 publishers
Builder
Builder 25%
Operator
Operator 32%
Investor
Investor 43%

Reality

Evidence64
Adoption40
Hype gap+30
Incentives80
Confidence62
productOne report1 publisher

Unsealed brief quotes Microsoft's applied science director calling AI training a 'theft of labor'

Redactions came off a 92-page plaintiffs' brief in the consolidated OpenAI copyright case on Thursday. Inside are internal Microsoft and OpenAI documents on substitution, memorised training data and collapsing publisher click-throughs.

Publishers:thenextweb.com

Reality

Evidence70
Adoption62
Hype gap+12
Incentives82
Confidence60
investOne report1 publisher

OpenAI's 550+ Publisher Coalition Grows as Fair-Use Summary Judgment Looms

The coalition suing OpenAI and Microsoft passed 550 publishers this week, and the cost of training data will be settled either by Judge Sidney Stein's fair-use ruling or by private deals struck before it lands.

Reality

Evidence32
Adoption35
Hype gap+32
Incentives68
Confidence40
productOne report1 publisher

The DOJ's fair use brief tells you who can afford to lose the argument

Washington has filed on the side of fair use in the Times case against OpenAI, and the passage that matters to anyone shipping on scraped text is its estimate of who could still afford to train if licensing won.

Publishers:techdirt.com

Reality

Evidence48
Adoption
Not scored
Hype gap+18
Incentives68
Confidence45