Training Generative AI Models on Copyrighted Works Is Fair Use; ARL Views, January 23, 2024

Katherine Klosek, Director of Information Policy and Federal Relations, Association of Research Libraries (ARL), and Marjory S. Blumenthal, Senior Policy Fellow, American Library Association (ALA) Office of Public Policy and Advocacy |, ARL Views; Training Generative AI Models on Copyrighted Works Is Fair Use

"In a blog post about the case, OpenAI cites the Library Copyright Alliance (LCA) position that “based on well-established precedent, the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.” LCA explained this position in our submission to the US Copyright Office notice of inquiry on copyright and AI, and in the LCA Principles for Copyright and AI.

LCA is not involved in any of the AI lawsuits. But as champions of fair use, free speech, and freedom of information, libraries have a stake in maintaining the balance of copyright law so that it is not used to block or restrict access to information. We drafted the principles on AI and copyright in response to efforts to amend copyright law to require licensing schemes for generative AI that could stunt the development of this technology, and undermine its utility to researchers, students, creators, and the public. The LCA principles hold that copyright law as applied and interpreted by the Copyright Office and the courts is flexible and robust enough to address issues of copyright and AI without amendment. The LCA principles also make the careful and critical distinction between input to train an LLM, and output—which could potentially be infringing if it is substantially similar to an original expressive work.

On the question of whether ingesting copyrighted works to train LLMs is fair use, LCA points to the history of courts applying the US Copyright Act to AI."

The Copyright Office belongs in the Library of Congress; ALA District Dispatch, August 9, 2017

Alan Inouye, ALA District Dispatch; The Copyright Office belongs in the Library of Congress

"In “Lessons From History: The Copyright Office Belongs in the Library of Congress,” a new report from the American Library Association (ALA), Google Policy Fellow Alisa Holahan compellingly documents that Congress repeatedly has considered the best locus for the U.S. Copyright Office (CO) and consistently reaffirmed that the Library of Congress (Library) is its most effective and efficient home.

Prompted by persistent legislative and other proposals to remove the CO from the Library in both the current and most recent Congresses, Holahan’s analysis comprehensively reviews the history of the locus of copyright activities from 1870 to the present day. In addition to providing a longer historical perspective, the Report finds that Congress has examined this issue at roughly 20-year intervals, declining to separate the CO and Library each time."

ALA president calls for digital transformation of Copyright Office; American Library Association (ALA) Press Release, 6/12/15

American Library Association (ALA) Press Release; ALA president calls for digital transformation of Copyright Office:

"Today, American Library Association (ALA) president Courtney Young responded to the introduction of the Copyright Office for the Digital Economy Act (CODE Act) by Representatives Judy Chu (D-CA) and Tom Marino (R-PA):

“For more than 20 years, content creators, rights holders, legislators and public users alike have acknowledged that the U.S. Copyright Office needs to modernize its technological capabilities for the 21st century. Unfortunately, the recently introduced Copyright Office for the Digital Economy Act does little to address significant technology challenges impacting the U.S. Copyright Office.

“The bill’s proposal to make the Copyright Office an independent agency does not address the longstanding problems facing the agency, specifically that the Copyright Office’s information technology systems are woefully inadequate in serving both rights holders and the public in the digital environment. Much of the Copyright Office's shortcomings were detailed in a Government Accountability Office report published in March 2015. Instead of independent authority, the Copyright Office needs resources—both in the form of funding and technical expertise—to bring it out of the typewriter age.

“Rights holders, authors, publishers, libraries and the general public nationwide rely on the robust U.S. Copyright registration and recordation system to identify the copyright status of works. Comprehensive and accurate records in digital systems that can communicate with other digital systems are necessary to handle any transaction—whether one is trying to register copyright in order to proceed with legal action or whether one is just trying to identify who holds the rights to a particular work. In addition, progress should be made immediately to build the necessary digital storage facilities for digitally-born works.

“We urge the U.S. Congress to support the investment necessary to transition the Copyright Office from a paper-based system to a digital system that uses the most effective digital technology, systems and software–to enable commerce, promote access to content, and to inspire the creators and artists of the future who wish to make use of the previous works. A successful overhaul of the Copyright Office’s information technology infrastructure cannot be achieved by securing the Copyright Office’s independence from the Library of Congress. We have a much more important problem to solve that cannot be fixed by changing the address of the Copyright Office.”"

Thinking Through Fair Use [Interactive Tool]; University of Minnesota - University Libraries

University of Minnesota - University Libraries; Thinking Through Fair Use [Interactive Tool for determining when use of a copyrighted work is fair use]: "Thinking Through Fair Use: Even after you've fully educated yourself about fair use (the information on our site is just a start), it can be difficult to remember all the relevant issues when you're looking at a potential use you'd like to make. We've developed one tool that may assist you in your thought process. The Office for Information Technology Policy of the American Library Association also steps you through the process with a similar interactive tool."

Library Copyright Alliance Releases Letter Welcoming OPEN Act; Digital Shift, 12/16/11

David Rapp, Digital Shift; Library Copyright Alliance Releases Letter Welcoming OPEN Act:

"Earlier this week, the Library Copyright Alliance (LCA)—made up of the American Library Association, the Association of Research Libraries (ARL), and the Association of College & Research Libraries—released an open letter [PDF] to Sen. Ron Wyden (D-OR), Rep. Darrell Issa (R-CA), and Rep. Jason Chaffetz (R-UT), “welcoming [the] release” of a discussion draft bill the legislators have sponsored. Called the Online Protection and Enforcement of Digital Trade (OPEN) Act, the bill has been touted as a potential alternative to SOPA."

Librarians Face Patrons Unhappy With Penguin Policy Change; ALA Condemns Ebook Decision; The Digital Shift, 11/22/11

Michael Kelley, The Digital Shift; Librarians Face Patrons Unhappy With Penguin Policy Change; ALA Condemns Ebook Decision:

"Todd Feinman, the chairman of the Oregon Digital Library Consortium (ODLC) , which has 22 library systems in its network (over 100 locations), said more complaints were likely forthcoming.

“I think that the whole paradigm is shifting and I imagine that there will be more of this over time,” he said. “I don’t know where this is going. These things are usually a surprise to us. It’s just hard to say what a publisher is going to do next,” he said.

Feinman said libraries could always boycott if necessary. ODLC has refused to license any ebooks from HarperCollins to protest that publisher’s February decision to limit library loans to 26 circulations."

Watch Out For the Omega Copyright Windup; Wall Street Journal, 7/30/10

Eric Felten, Wall Street Journal; Watch Out For the Omega Copyright Windup: A case about pricing timepieces could crimp library lending:

"Katharine Hepburn couldn't understand why Jimmy Stewart didn't devote himself to his art. Their characters in the 1939 movie, "The Philadelphia Story," are walking back from the local library, where Hepburn has acquired a copy of Stewart's collection of short stories: "When you can do a thing like that book, how can you possibly do anything else?" she asks (knowing that he has sunk to the rank of gossip reporter).

"You may not believe this, but there are people that must earn their living," he answers.

"Of course," she says, "but people buy books, don't they?"

"Not as long as there's a library around."

Stewart's hard-scrabble scribbler would be pleased to learn that a Supreme Court case scheduled to be argued in the coming term could put the kibosh on library lending, at least of those books published or printed outside the U.S. In a friend-of-the-court brief, the American Library Association and other library groups argue that a recent Ninth U.S. Circuit Court of Appeals decision "threatens the ability of libraries to continue to lend materials in their collections."

The librarians fear they are going to suffer collateral damage from a curious copyright case that has nothing to do with books. It's Costco Wholesale Corporation v. Omega, S.A.—a battle over whether the storied Swiss watch brand can control where and at what price its chronometers are sold in the U.S...

No doubt Omega was smart to turn to copyright law, given what an increasingly powerful tool it is. The number of years copyright lasts has been repeatedly lengthened, and juries have been known to hand down fines in the millions for illegally downloading a few dozen songs.

The strange and logically contradictory thing, though, is that copyright has been gaining in power at the very same time it has been rendered impotent. Some critics, such as Harvard law professor Lawrence Lessig, argue that copyright has become an oppressive behemoth; others, such as novelist Mark Helprin, lament that the old circle-c is being turned into a dead letter.

They are both right. In response to rampant violation of copyright, the entertainment industry, publishers and other such businesses have gotten Congress to beef up intellectual property protections. But "the worldwide copying machine called the Internet," as Suffolk University professor of law Stephen Michael McJohn puts it, continues to hum along, undeterred. The result, says Mr. McJohn, is a bizarre legal disconnect: "Almost everything is copyrightable, and almost everything is used without regard for copyright.""

http://online.wsj.com/article_email/SB10001424052748703977004575393160596764410-lMyQjAxMTAwMDMwMDEzNDAyWj.html

Library Associations Support Online Software Reseller in Vernor v. Autodesk infringement lawsuit; District Dispatch, ALA Washington Office, 2/16/10

District Dispatch, ALA Washington Office; Library Associations Support Online Software Reseller in Vernor v. Autodesk infringement lawsuit:

"On Thursday, February 11, the American Library Association (ALA), the Association for College & Research Libraries (ACRL) and the Association of Research Libraries (ARL) – the Library Associations – joined a coalition of public interest and consumer groups in urging a federal appeals court to preserve consumers’ rights and the First Sale Doctrine (which allows libraries to lend books) in a battle over an Internet auction of used computer software.

An amicus curiae brief was filed with the U.S. Court of Appeals for the 9th Circuit, the Electronic Frontier Foundation – joined by the Library Associations, the Consumer Federation of America, U.S. Public Interest Research Group, and Public Knowledge – in support of plaintiff Timothy Vernor. Vernor is an online software reseller who tried to auction four authentic packages of Autodesk’s AutoCAD software on eBay. Autodesk sent takedown notices to block his auctions and threatened to sue him for copyright infringement, claiming that its software is only “licensed,” never sold.

At the heart of the case is the First Sale Doctrine – an important limitation under Copyright law that gives copyright holders control over the first vending or sale of their work(s). The first sale doctrine steps in after an individual copy has been sold and puts further disposition of the copy beyond the reach of the copyright owner. The first sale doctrine is fundamental for libraries and other organizations such as archives, used bookstores and online auctions, as it allows a “second life” for copyrighted works.

The brief argues, in part, that the first sale doctrine is well-established, serves critical economic and democratic values, and promotes access to knowledge, preservation of culture, and resistance to censorship. Libraries rely on provisions in the Copyright Act, such as first sale, to accept donations of special collections and to preserve these works. If Autodesk wins this case, software vendors would potentially be permitted to evade the first sale doctrine via contractual license agreements. Such a ruling could allow other copyright owners to follow suit with licenses on books, CDs, DVDs, and other media, with strong implications for libraries and our users.

The full amicus brief can be viewed here."

http://www.wo.ala.org/districtdispatch/?p=4388

Libraries ask for oversight of Google books product; Reuters, 12/17/09

Reuters; Libraries ask for oversight of Google books product:

"The American Library Association, the Association of College and Research Libraries and the Association of Research Libraries said that there was unlikely to be an effective competitor to Google's massive project in the near term.

It asked the government to urge the court to use its oversight authority to prevent abusive pricing of the online book project.

"The United States should carefully monitor implementation of the settlement, including the pricing of the institutional subscription," the library organizations said in their letter, which was dated December 15 but released on Thursday.

It was addressed to William Cavanaugh, deputy assistant attorney general for the Justice Department's antitrust division."

http://www.reuters.com/article/idUSTRE5BG5AY20091217?type=artsNews

Library Organizations Urge DoJ To Take Proactive Role in Google Book Search Settlement; Library Journal, 8/6/09

Norman Oder via Library Journal; Library Organizations Urge DoJ To Take Proactive Role in Google Book Search Settlement:

Groups express concerns about pricing, composition of Book Rights Registry:

"Letter follows up on May meeting.

DoJ should treat settlement as consent decree.

OCA asks Google to request delay in hearing."

http://www.libraryjournal.com/article/CA6675219.html

Press Release: Library Groups Advise DOJ on Proposed Google Book Search Settlement; Association of Research Libraries, 7/30/09

Press Release: Library Groups Advise DOJ on Proposed Google Book Search Settlement; Association of Research Libraries:

"The American Library Association (ALA), the Association of College and Research Libraries (ACRL) and the Association of Research Libraries (ARL) sent a letter to William Cavanaugh, Deputy Assistant Attorney General of the U.S. Department of Justice’s (DOJ) Antitrust Division yesterday, requesting the Division to advise the court presiding over the Google Book Settlement to supervise the implementation of the settlement closely, particularly the pricing of institutional subscriptions and the selection of the Book Rights Registry board members.

The letter, which was sent following a meeting the library groups had with the Antitrust Division, also recommended that the Division itself actively monitor the parties’ compliance with the settlement’s provisions."

http://www.arl.org/pp/ppcopyright/google/googledoj.shtml

The Evolving Google Library; InsideHigherEd.com, 5/21/09

Via InsideHigherEd.com; The Evolving Google Library:

"Here's how the system would work:

Universities that have made parts of their collections available for digitization will receive deep discounts on access to the collection, or -- in Michigan's case and perhaps those of others -- will pay nothing for access to the collection, which currently has about 10 million volumes and could easily double in size. Every participating library will have full free access to digitized copies of all of the books it contributed.

For people at other institutions, a free "preview" of a book -- with about 20 percent of content -- will be available online.

Individuals will be able to purchase full access (but not download a copy) at prices that Google said would be inexpensive compared to regular purchase prices.

Colleges and university libraries could buy site licenses, with pricing based on Carnegie classification. While no scale was released, Google officials said that the goal of pricing would be both to provide appropriate recognition to copyright holders but also to ensure wide access to the collections.

Any of the universities that have provided volumes for the project will have the right to seek arbitration if they feel that the pricing does not reflect both of those principles.

Michigan was the first university to sign this expanded agreement although others among the 30-plus having books digitized are expected to follow, so the resulting offering will contain all of their collections combined...

One of the groups that has been worrying about pricing is the American Library Association. Corey Williams, associate director of the association's Washington office, said in an interview Wednesday that while many details remain unclear, the Google-Michigan agreement is "a step in the right direction with regard to pricing."...

Steven Bell, associate university librarian for research and instructional services at Temple University, said he thinks Google is trying to respond to the complaints that have been raised, and that he doesn't think the Michigan announcement will make those issues go away.

"I don't think this new agreement with the University of Michigan is going to totally mitigate the concerns of the library community about Google's monopoly ownership of these millions of digitized books."

http://www.insidehighered.com/news/2009/05/21/google

Library groups gripe about Google Book Search; CNet News, 5/4/09

Via CNet News: Library groups gripe about Google Book Search:

"Three groups representing hundreds of libraries lodged a long series of concerns about a proposed settlement of lawsuits over Google Book Search on Monday--but refrained from objecting overall.

Specifically, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries expressed some affinity for Google's mission of sharing books with the public, but raised concerns in a legal filing that the settlement would concentrate power in Google's hands and poses pricing and privacy concerns."

http://news.cnet.com/8301-1023_3-10233158-93.html

Library Copyright Alliance

Library Copyright Alliance: Homepage statement:

"The Library Copyright Alliance (LCA) consists of five major library associations - the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. These five associations collectively represent over 80,000 information professionals and thousands of libraries of all kinds throughout the United States. These five associations cooperate in the LCA to address copyright issues that affect libraries and their patrons. For over ten years now, our five library associations have worked together as a coalition.

The purpose of the LCA is to work toward a unified voice and common strategy for the library community in responding to and developing proposals to amend national and international copyright law and policy for the digital environment. The LCA's mission is to foster global access and fair use of information for creativity, research, and education.

Copyright and related intellectual property laws have important and substantial effects on the nature and extent of information services libraries provide to their users. Intellectual property laws are currently undergoing major changes in response to the growth in the use of digital formats for works.

The LCA is principally concerned that these changes do not harm, but rather enhance, the ability of libraries and information professionals to serve the needs of people to access, use, and preserve digital information. Our concern in [sic] heightened because of emerging technology applied to copyrighted works that is intended to prohibit access, use and preservation of digital information."
http://www.librarycopyrightalliance.org/