US Department of Justice backs fair use for AI training in landmark copyright case

The US Department of Justice has sided with AI companies in the consolidated lawsuit involving the New York Times and other rights holders, arguing that training AI models on copyrighted material qualifies as fair use.

The New York Times sued OpenAI and Microsoft in late 2023 in a Manhattan federal court, alleging that millions of NYT articles were used without permission to train models like GPT-4 and build products that compete with the newspaper as an information source. The Times cited billions of dollars in damages and demanded the destruction of language models trained on its articles. The case has escalated considerably since then and is widely considered a bellwether for how courts will handle copyright and AI training.

The DOJ now says the copyrighted text used for LLM training in this case doesn't amount to copyright infringement. The distinction between training and output is what matters. During training, entire works are copied but never made publicly available, and the outputs "often if not always lack substantial similarity" to the originals. A blanket theory of market harm that conflates the two is legally wrong. Others disagree.

The filing invokes Joan Didion as an analogy. As a teenager, she copied Hemingway's stories to understand how his sentences worked. The DOJ argues that, under the logic of the Kadrey ruling, Didion could have faced liability whenever she published because her learning process and subsequent writing would have been treated as a single use. Citing an earlier ruling, the department contends that it would be unthinkable to require people to pay whenever they later draw on a book to write something new in a new way.

The DOJ also argues that LLMs have creative and public value. "Human beings create original works using LLMs," the DOJ writes. Liability for AI training would stifle the creativity copyright law is supposed to protect. Even New York Times writers reportedly use LLMs to draft and edit articles, though the linked source ironically supports mostly the opposite conclusion.

And all these arguments gloss over scale. A single author copying text to learn is one thing. A multibillion-dollar company turning that content into competing mass-market products is another, a point the US Copyright Office has made explicitly.

Trump administration takes pro-AI stance in copyright fight

That's the point the US Copyright Office made in a report that rejected blanket fair use for AI training. The Copyright Office argued that AI works with perfect copies and generates content at a speed and scale far beyond human creation. Commercial applications that compete with original works in existing markets exceed what fair use allows.

In its filing, the DOJ goes after that report directly. Former Copyright Register Shira Perlmutter's assessment carries no binding legal authority, the department argues, and the report ignored case law on case-by-case analysis and the types of market harm that actually count under the statute.

"The fair-use inquiry hinges on the specific facts and uses at issue in each case. But it would be problematic—and legally incorrect—to impose broad copyright liability that would generally render training of AI models impermissible without licensing," the DOJ writes.

Perlmutter was fired by the Trump administration shortly after her report came out. Democrat Joe Morelle said she was let go because she refused to legitimize AI training on copyrighted works, a position favored by Trump ally Elon Musk. In a footnote, the DOJ notes that Perlmutter is currently challenging her dismissal.

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