AI copyright lawsuits were plentiful in 2024. What’s at stake here, and what do you think is the best-case scenario for authors and publishers?
The best-case scenario for all of us would be for lawmakers to regulate AI by endorsing basic principles of copyright law, the most important of which is that authors and publishers have the right to control the terms of their intellectual property—including whether it may be used in the first place and, if so, under what conditions. The ability to opt in to new uses and new markets, or to decline them, is what makes a copyright a copyright.
Recently, we have begun to see access agreements and other AI licenses emerge, which is good news, because licensing should be a win-win-win for tech, publishers, and authors. It permits developers to work with content that is safe, sophisticated, and curated, and to obtain a measure of relief from copyright liability. Licensing also permits publishers and authors to collaborate with tech companies as both partners and clients, authorizing some AI uses for a fair price but prohibiting other uses, such as market substitutes. Creativity and innovation are supposed to be symbiotic like this.
Unfortunately, Big Tech’s industry-wide positions have been far less productive than these one-off deals. In U.S. courts, we are seeing arguments that would distort fair use beyond recognition. In other countries, we are seeing efforts to flip the rules of copyright upside down, forcing creators to opt out of AI uses they often couldn’t know about and are powerless to negotiate. In my opinion, opt-out schemes also violate the Berne Convention and other treaties, which prohibit governments from burdening authors as to the enjoyment and control of their rights and equally prohibit sweeping exceptions for users. The schemes are also impractical: where and how many times does a rights holder have to opt out of unspecified AI uses to protect what they already own?
There were some victories against book bans in 2024, but it is clear more First Amendment challenges are on the horizon. What is your top concern about these developments and what further actions might we expect from AAP?
It has been a privilege to fight for free speech by litigating and supporting litigation. In these victories, we have been fortunate to have judges who are not only clear-eyed but also a bit annoyed by some of the fear tactics deployed by legislatures. One of my favorite lines is from the opinion of Judge Brooks in our case against Arkansas, asking, “Why has the State found it necessary to target librarians for criminal prosecution?” He followed that question with a concise lesson on the history and importance of public libraries in America.
Many of the ongoing disagreements are about reading material for minors, which is a legitimate issue in a large country and one
that largely but not entirely rests with local communities. The crucial line is that parents and politicians may not override constitutional safeguards for the many. We will certainly continue our vigilance in assessing the boundaries. Additionally, we need to do more to understand the concerns of lawmakers, which means leaning into the premise that publishing well means publishing broadly—all cultural and political viewpoints, from left to right.
The long-running Internet Archive case was finally resolved last year. Can you put into context what that means for the future of copyright protection?
The case never presented a close legal question—only an effort to legitimize mass infringement. But if it had gone badly for us, there would be little left of the Copyright Act because there would be no room for authors to determine public access to their writings or benefit from derivative formats. There have been other cases that rejected format-shifting theories, especially in music and film, but the difference in this case was the sheer scale of the unsanctioned stockpile and distribution effort disguised as library lending. Thankfully the Second Circuit was not impressed with the rhetoric and took time to remind future courts, including those that will decide AI cases, that copyright is not an inconvenience. The rights of authors and publishers redound to the public interest.
