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"The Copyright Office Report about Fair Use in AI & the Dismissal of the Register of Copyrights: A Drama in Three Parts" | Authors Alliance

 The report indicates in several places that the Office believes that research and academic uses should be favored under the fair use analysis, which is something we strongly agree with. On the other hand, the Office’s conclusions about market harm are difficult to square with past case law on market harm and could cause unintended consequences if applied outside the AI context. As we noted in our comments to the Copyright Office, “We can think of no fair use case that has ever assessed market harm by adopting such a broad approach to market harm, but numerous instances in which courts have rejected such an approach.” 

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The release of this report was highly unusual. We’re not aware of the Office releasing any of its other policy studies in the past under a pre-publication status, and we’re not really sure what that means....

The timing of the release has generated speculation that the release of the report was politically timed – suggesting that a quick release to get its contents out into the world before it could be restricted by a Trump administration that has (it has been suggested) a very different view that is more aligned with technology companies. Whether that is true we may never know. 

Whatever the motivation for the timing of the release, we think it’s unfortunate for this reason: there are two cases currently pending in the courts, Kadrey v. Meta and Bartz v Anthropic, where the issues being litigated are directly related to the contents of this report. In both of those cases, the briefing on fair use is closed. In one, the court has already held oral argument and in the other oral argument will be held next week. Amicus briefs on behalf of other interested parties have been filed.  

While it’s certainly fair for the Copyright Office to make its views known, even on controversial issues, the timing of this report is problematic because it could put a thumb on the scale for how the courts will resolve these cases. Given that these cases are likely to be among the first to be decided, the downstream impact on all other AI litigation could be considerable. Neither the parties nor the amici who have participated in the case will have a chance to respond or point out flaws or gaps in the Office’s analysis. 

So what will the courts do with this report? It’s possible that the parties could bring the report to the Court’s attention as supplemental authority, and it’s possible that the courts will digest it themselves. The Office’s reports are only entitled to what’s known as “Skidmore” deference (meaning, really, no deference at all except to the extent the court is persuaded by the Office’s arguments). That’s some solace, but it’s still the case that the courts could well read this report as a sort of amicus brief on behalf of the Copyright Office, though contributed out of time, well beyond the normal word limits, and not published or vetted in the normal way. Very unusual. 

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