WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today questioned witnesses during a Senate Judiciary Subcommittee hearing entitled “Too Big to Prosecute?: Examining the AI Industry’s Mass Ingestion of Copyrighted Works for AI Training.” Today’s hearing examined the way AI interacts with intellectual property rights, particularly copyrights.
Durbin asked Edward Lee, a Law Professor at the Santa Clara University School of Law, about Section 230 in relation to AI.
“You’re suggesting this is the age of innovation—deep learning deserves special treatment. We’ve been through this argument in Congress before—Section 230—[which] is a good illustration of that. We decided this fledgling industry called the internet just may not have a future [and] we better be careful, so we exempted them from liability. Is that what you’re suggesting?” Durbin asked.
Professor Lee responded, “not at all,” and continued to highlight the existing Supreme Court precedent on “fair use.” AI companies argue that training their models on copyrighted works does not constitute infringement because that activity falls under the doctrine of “fair use,” which allows limited use of copyrighted works without the permission of the author for purposes such as commentary, parody, teaching, research, and news reporting. Courts determine whether use of a work is fair use on a case-by-case basis. He continued to say there is a fair balance between protecting copyrighted works, authors, and innovation.
“It looks to me like you’re shifting the burden to the author of the creative work when there’s an assertion of ‘fair use’ here. So, Meta or others can virtually steal this creative product of Mr. Baldacci [an author witness at the hearing] and others, and then he has the responsibility of proving there’s been an economic loss to him as a result?” Durbin asked.
Professor Lee responded that the initial burden of “fair use” is on the defendant.
“Why do we have AI? Why are we interested in AI? Clearly it is for a commercial purpose, is it not?” Durbin asked.
Professor Lee responded, “entirely, for the AI companies.”
“So, the companies are ultimately the winners in the approach you are taking. Assume we’re in the world of new innovation here and there is a use of someone else’s creative work—the burden is on them to prove they lost money because of that piracy… they can use Mr. Baldacci’s product and make money off of it,” said Durbin.
Professor Lee responded that if using copyrighted works like Mr. Baldacci’s is considered “fair use,” the direct benefit would be to the AI companies. He continued to say that the United States has a priority in AI development and if we are in an arms race with China, winning the AI race is important.
“And Mr. Baldacci should be prepared to pay the price for that?” Durbin asked.
Professor Lee responded, “I would suggest that if it is so easy to generate copies of Mr. Baldacci novels, that should go in the complaint in these lawsuits… we should not throw out the window the established Supreme Court precedent on how to apply ‘fair use.’”
Video of Durbin’s first round of questions in Committee is available here.
Audio of Durbin’s first round of questions in Committee is available here.
Footage of Durbin’s first round of questions in Committee is available here for TV Stations.
Durbin then asked Maxwell Pritt, a Partner at Boies Schiller Flexner LLP, who represents plaintiffs in Kadrey v. Meta Platforms. In this case, authors, including Richard Kadrey and Sarah Silverman, sued Meta, alleging copyright infringement related to the training of Meta's LLaMA AI model using copyrighted books. Durbin asked Mr. Pritt about Meta’s use of pirated databases to obtain copyrighted works to train its GenAI model.
“Did Meta compensate any of the copyright owners for the use of their works?” Durbin asked.
Mr. Pritt responded, “No, but Meta did spend money on contributing its processing power to pirate from illicit websites and also to pay Amazon to host pirated data.”
“How does the downloading and uploading of pirated copyrighted material impact the analysis of whether a copyright infringement could meet the mens rea requirement of willfulness necessary for criminal infringement?” Durbin asked.
Mr. Pritt responded, “As to willfulness in the civil copyright context, the documents Senator Hawley showed—I think the answer is clear the piracy committed by Meta was knowing and intentional.”
Video of Durbin’s second round of questions in Committee is available here.
Audio of Durbin’s second round of questions in Committee is available here.
Footage of Durbin’s second round of questions in Committee is available here for TV Stations.
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