September 2, 2025

AI: One Human has Some Questions

By Emily Poler

I’ve written a lot on this blog about the legal battles between copyright owners and the AI platforms that have used and continue to use copyrighted works to train their LLMs. However, I haven’t been terribly explicit about my views on what’s right and what’s wrong. Instead, I’ve focused on the parties’ legal maneuvers and what I see as the strengths and weaknesses in the various arguments and judges’ decisions, while also suggesting that existing case law can be extended to cover new technologies. This has been an intentional choice because I’m a lawyer and a litigator, not a policy maker. Therefore, I might not be the best person to opine on what’s “right” and what’s “wrong.” 

I do, however, wonder whether it is time to recalibrate our legal approach to some copyright issues. After all, U.S. copyright law traces its origins back to English common and statutory law from the 18th century, and it’s fair to say that things have changed A LOT since the days when George III wore the crown. 

So, given that everyone can use some light reading after the holiday weekend, I thought that with summer in the rearview (sigh), I’d wade into this thicket with a few thoughts and questions. 

In the main, I find the idea that companies like Anthropic, Google, Meta and OpenAI can mine a vast amount of content without compensating creators to be really problematic. The U.S. Constitution’s Copyright Clause (“The Congress shall have Power . . .To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) is intended to incentivize creation of new works. The idea here is that society as a whole benefits from incentivising individual creators while fair use provides a mechanism to allow others to create new works using existing works and thus further benefit society. 

Fair use, which is what AI companies rely on in their arguments to allow them to mine copyrighted content, is disturbing to me in this context because it’s hard to believe in 2025 that any tech company is acting in the public interest or that its innovations will improve society at large. And so, my question here is, is any court capable of determining the potential societal benefit (or lack thereof) from a given innovation? It seems super hard because (1) long term benefits and downsides are difficult or impossible to predict, and (2) any one technology can have results both bad (Internet > social media) and good (Internet > not having to look at a paper map while driving).

I also have questions about how to properly classify what AI companies derive from copyrighted works. The companies argue that their training models are taking only non-expressive information — how words and other information are arranged — from human-created materials, and not expressive content — the meaning of the words and information. In other words, they claim an LLM scanning a scholarly work on who authored Shakespeare’s plays is only using the words and sentences to learn how humans think and communicate, and not actually paying attention to (and potentially ripping off) the author’s arguments that Christopher Marlowe is the true creator of Romeo and Juliet.

But can we really make that distinction? The way I arrange words in this blog post is, in fact, central to the idea that I’m expressing. By way of comparison, the argument that how human authors arrange words is “non-expressive” might be akin to saying that Death of a Salesman read by a monotone, computer-generated voice is the same as performed by an actor with years of training. I, for one, have a hard time buying that.

Furthermore, the role of corporations has changed dramatically since Parliament passed the first copyright statute — the Statute of Anne — in 1710. This makes me wonder if it’s time to consider whether copyright law should distinguish between incentives for companies to create works, and incentives for individuals to create. 

Obviously, these are all big questions that in one way or another are currently being touched upon in the courts. But what all my questions come down to is, are the courts really who should be answering them? I worry that without a broader, societal examination of how copyright law should be applied to AI, as opposed to narrow courtroom applications of centuries old laws and principles to previously unimaginable technologies, we will get results that only benefit large companies while hurting individual creators and, ultimately, society as a whole — which would be the exact opposite of what copyright law was created to achieve.