Copyright, fair use, and AI technology development: time to sunset the “transformative purpose” test

S.J. Blodgett-Ford

Chapter Chapter 30 in Research Handbook on the Law of Artificial Intelligence, 2025, pp 673-714 from Edward Elgar Publishing

Abstract: In copyright infringement lawsuits in the United States, a common defense by artificial intelligence/machine learning technology (“AI technology”) developers is that it is a non-infringing “fair use” to make copies of copyrighted materials in developing AI software. Such developers often rely on the judicially-created “transformative purpose” test. In Section II, I will offer some reasons for concern about using the transformative purpose test in copyright infringement cases involving AI technology. The test is difficult to interpret consistently with the treatment of derivative works in the copyright statute. It blurs the line between patents and copyrights. It invites a speculative meta-level utilitarian analysis by the courts of what will best serve the “progress of science and the useful arts.” (U.S. Const. art. I, § 8.) It treats copyright as a monopoly in a context where there may be actual antitrust concerns. If and to the extent that the transformative test is motivated, at least in part, by a goal of protecting freedom of speech and expression that would not otherwise qualify as fair use under the statute, an express First Amendment analysis is worth considering. In Section III, I will briefly outline a potential alternative approach using the statutory language only - without the transformative purpose test - in one particular context. Specifically, I will discuss the alleged training of the large language model GPT-4 from OpenAI using copyrighted works from the New York Times. I will focus on alleged copying in development of AI technology, not the output itself. I will not attempt a comprehensive fair use analysis in Section III. Instead, I will identify a few potentially relevant considerations to motivate the effort for future work to replace - or, in software terms “sunset” or “end of life” - the transformative purpose test.

Keywords: Copyright law; Fair use; Large language model; Transformative purpose test; Artificial intelligence (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035316489
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