The Surprising Truth About “No AI Scraping” Notices: Are They Really Shielding Your Creative Work?
As I noted, a split among federal circuits (as they are not bound by each other) creates a path to the U.S. Supreme Court to settle an area of law such as Fair Use as it relates to AI training. Just as district court rulings are persuasive to another district court, circuit court opinions are persuasive, but not controlling, to another circuit court or district court outside that court’s particular circuit.
NO ONE IS IN UNIFORM AGREEMENT ON FAIR USE
The federal courts, the Department of Justice (DOJ), and the United States Copyright Office are not in agreement on what constitutes Fair Use. The DOJ couches its position in favor of Fair Use by expressing national security and international competition concerns (i.e., China). Currently, there is a four-prong test that the judiciary and Copyright Office harken to when determining what constitutes Fair Use. Therein lies the problem! We never contemplated Artificial Intelligence and its training when the four-prong test for whether something is fair use was first set forth in Section 107 of the Copyright Act of 1976.
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