Protection of copyright has always been a top priority for the Association of American Publishers, and that point was driven home again during the organization’s annual meeting held via Zoom on May 8. With the exception of Jenna Bush Hager’s opening remarks about her passion for reading which led her to form the Read with Jenna book club as well as the new Thousand Voices x RHPG imprint, the five other main speakers devoted their remarks on the need to defend copyright against Big Tech firms determined to use publishers’ content to build their large language models without permission or payment.
Jonathan Barnett, professor at the University of Southern California’s Gould School of Law and author of The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property, warned that publishers and other IP businesses need to learn from the lessons of the past—namely, the losses they suffered when Google successfully bet that it could scrape all content available on the internet for free in developing Google Books, a move that a court determined was protected by the fair use doctrine. He called Google’s action the greatest case of mass infringement in U.S. history for which the tech giant suffered no consequences, and one which was supported by fair use protection that “is far broader than it has ever been.”
AI companies are attempting to use the same business model today as they strive to bring the cost of content collection down to zero, Barnett said. He added that tech companies are hoping to get case law on their side to back their efforts like they did with Google. That approach has already led to at least 41 lawsuits in the U.S., said Maxwell V. Pritt, partner with Boies Schiller Flexne and interim lead counsel for Kadrey v. Meta, as well as other infringement cases against other AI developers.
Pritt noted that executives at AI companies don’t care that they are using pirated data to train their models. He said Meta has engaged in intentional “massive piracy” to build their content databases, adding that the amount of content Meta and other tech companies have gathered illegally is an “existential crisis” for all creative communities. He pointed to the case of the largest illegal website, Ana’s Archive, which wrote on a blog post that its business soared when AI companies, clearly aware that its data came from pirated sources, nonetheless used the content to create its large language models.
Despite the gloomy past precedents, Barnett and Pritt both argued that there is reason to believe courts will not accept the fair use arguments that worked in the past. For one thing, a huge creator economy has emerged, Barnett said, one that has a vested interest in protecting copyright and one that rejects that old mantra that “information wants to be free.” And there are practical concerns as well, Barnett said. If creators aren’t compensated, “eventually the pipeline will run dry.”
Barnett and Pritt also agreed that that the creation of licensing models is a positive development, one that Barnett believes would make it more difficult for AI companies to lean on the fair use defense since they will have a legal option to gather content. He said the pendulum has swung so far in favor of the aggregator that “fair use needs to be recalibrated.” It that were to happen, markets would develop licensing and other solutions that will work in the AI ecosystem.
Pritt took his argument even further, saying the fight over AI is not about fair use and arguing that no court has ever suggested that a company can illegally acquire copyrighted work and then claim there is some sort of fair use defense.
Brian Murray, AAP board chair and CEO of HarperCollins, had earlier declared in the meeting that publishers “are in an unprecedented legal battle with Big Tech not only for the future of content and intellectual property in this country, but also for our foundational and fundamental rights as citizens.” Hitting on remarks that later speakers would note, Murray said the goal of Big Tech is to build platforms that will make them lots of money and, despite their claims, technology companies are not creating products simply for the public good.
To highlight the fight with Bit Tech, Murray cited the brazen calls from two tech leaders, Twitter founder Jack Dorsey and current owner of X, formerly Twitter, Elon Musk, for all IP law to be abolished. Weakening copyright law, Murray said, would deprive the U.S. of its competitive advantage over rivals in the AI space, which he sees as superior content, not better computer chips. (Those comments were similar to what Robert Thomson, CEO of HC parent company News Corp, said hours after the AAP meeting). In order for the U.S. to be able to continue to develop quality content, the “fundamental and foundational nature of copyright must be protected absolutely,” Murray declared.
In her remarks, AAP CEO Maria Pallante said while the industry has many issues to navigate, ranging from tariffs to First Amendment challenges, “none of these issues approach the sea change to policy debates that is artificial intelligence.” She said that while some of the fights over copyright has echoes of prior copyright debates between copyright owners and copyright users, “the stakes are much greater now because copyright is the substructure of publishing. Copyright is how publishers acquire works from authors, how authors get paid, how publishers recoup their investments, how future authors are funded, how readers and researchers are inspired, how markets are created, and how the public interest is served.”
Pallante, like all speakers, said that while there are many beneficial uses to AI, there needs to be regulations. Jeremy Kahn, a journalist and author of Mastering AI: A Survival Guide to Our Superpowered Future, said there is much to be optimistic about concerning AI in fields like education and medicine, but legal guardrails must be set. Kahn believes companies would welcome some forms of regulation, since they want to know what the ground rules are. “I think there’s this sort of myth out there that regulation and innovation are enemies, that they’re sort of opposites of one another,” he said. “I think in many areas, having regulation would actually help speed innovation.”
Pallante said everyone in publishing understands that American AI companies must move rapidly to remain competitive in the global market. “But sacrificing the long-established principles of copyright in the process serves Big Tech, not the public,” she said. “Weakening IP would be a misguided move for a short-term advantage, and it would introduce the greater danger of a tech sector capable of decimating other sectors, like publishing, that are critical partners to the government on security, safety, and public progress.”