President Donald Trump’s MAGA movement has seen division within its ranks of late on a number of issues ranging from the bombing of Iran and the “Big Beautiful Bill” to the controversy around the Jeffrey Epstein case.
Now, we can add another to the list: The question of whether it’s “fair use” for AI companies to use copyrighted material without permission to train their AI models.
In the view of Missouri Republican Sen. Josh Hawley – widely seen as a MAGA ally, though he has at times broken with President Trump on certain issues – the answer is no.
At a subcommittee hearing of the Senate Judiciary Committee chaired by Sen. Hawley on Tuesday (July 16), legal experts accused AI companies such as Meta and Anthropic of outright piracy in their efforts to hoover up as much data as possible for their generative AI tools.
“As AI companies scrambled to outpace each other, many of them turned to illegal pirate websites – massive repositories of tens of millions of stolen copyrighted works – to get text for their AI models,” lawyer Maxwell Pritt of Boies Schiller Flexner LLP told the subcommittee.
“By pirating these works for free rather than buying or licensing them from copyright owners, AI companies have built a multibillion-dollar industry generally without paying a single cent to either the creatives whose works are powering their products or the publishers responsible for introducing and providing those works to the public.”
Pritt accused the US’s leading AI companies of “what is likely the largest domestic piracy of intellectual property in our nation’s history. That piracy includes hundreds of terabytes of data and many millions of works, including, for example, at least 12 books authored by members of this subcommittee.”
Pritt, who said he’s litigating cases against AI companies such as Meta, OpenAI, GitHub and Midjourney, said company documents show that, at Meta, “Mark Zuckerberg himself made the call” to pirate vast amounts of copyrighted material.
Meanwhile, documents at Anthropic – which is fighting a copyright infringement case brought by music publishers including Universal Music Group – “show a blatant disregard for our copyright laws, preferring to pirate books to avoid or delay the ‘legal/practice/business slog,’ as Anthropic’s co-founder and CEO Dario Amodei put it.”
“As AI companies scrambled to outpace each other, many of them turned to illegal pirate websites – massive repositories of tens of millions of stolen copyrighted works – to get text for their AI models.”
Maxwell Pritt, Boies Schiller Flexner LLP
Pritt presented internal communications from Meta showing staff were aware that their practices were illegal.
“It’s the piracy (and us knowing and being accomplices) that’s the issue,” one Meta employee was quoted as saying, while another wrote: “If there is media coverage suggesting we have used a dataset we know to be pirated, such as [book piracy site] LibGen, this may undermine our negotiating position with regulators on these issues.”
Sen. Hawley made no secret of where he stands on the issue.
“AI companies are training their models on stolen material, period… And we’re not talking about these companies simply scouring the internet for what’s publicly available. We’re talking about piracy,” Sen. Hawley said.
“Are we going to protect [Americans’ creative community], or are we going to allow a few mega-corporations to vacuum it all up, digest it, and make billions of dollars in profits – maybe trillions – and pay nobody for it? That’s not America.”
Hawley’s stance places him at odds with President Trump, who has been seen as siding with tech companies in the AI race. The Republicans’ recent “Big Beautiful Bill” initially included a provision that would have prevented US states from regulating AI at the state level, before being stripped out of the bill.
In many of the lawsuits filed by copyright holders, AI companies are defending themselves by claiming that their unauthorized use of copyrighted content amounts to “fair use” under US copyright law. Two recent rulings by federal judges came down on opposite sides of that argument.
In a case brought by book authors against Anthropic, Judge William Alsup of the US District Court for the Northern District of California concluded that Anthropic’s unauthorized use of the books did indeed count as “fair use” – but its use of pirated books did not count as fair use. Anthropic will now have to face a hearing to determine the size of the damages it must pay.
“Are we going to protect [Americans’ creative community], or are we going to allow a few mega-corporations to vacuum it all up, digest it, and make billions of dollars in profits – maybe trillions – and pay nobody for it? That’s not America.”
Sen. Josh Hawley
Days later, in a case brought by comedian Sarah Silverman and other book authors against Meta, Judge Vince Chhabria of the same district court concluded that training AI models on copyrighted content taken without permission is not fair use – though he ruled against Silverman and the other authors on the grounds that they had made the wrong arguments to prove their case.
David Sacks, President Trump’s AI and crypto czar, has come down on the side of the judge in the Anthropic case who ruled in favor of the “fair use” argument.
“It’s very important that we end up with a sensible fair-use definition like the one the judge has come up with in this Anthropic case, because otherwise we will lose the AI race to China,” Sacks said on a recent episode of the podcast he co-hosts.
At the congressional hearing Tuesday, Pritt argued the AI companies had foreseen these court cases and always planned to use the “fair use” defense. After being caught “flat-footed” by OpenAI’s release of ChatGPT at the end of 2022, AI companies found themselves in a race to release generative AI products, he said.
“The cost-benefit analysis was simple… Expend time and resources to legally acquire the rights to copyrighted books and articles from those who own the rights; or pirate them all for free now from illegal websites and pay litigation damages later – or, even more appealing, pay nothing at all if they can convince the courts to excuse their unprecedented commercial piracy as fair use.”Music Business Worldwide
