David Atkinson (The U Texas Austin) has posted “Unfair Learning: GenAI Exceptionalism and Copyright Law” on SSRN. Here is the abstract:
This paper challenges the argument that generative artificial intelligence (GenAI) is entitled to broad immunity due to a fair use defense under copyright law for reproducing copyrighted works without authorization. It examines fair use legal arguments and eight distinct substantive arguments, contending that every legal and substantive argument favoring fair use for GenAI applies equally, if not more so, to humans. Therefore, granting GenAI exceptional privileges in this domain is legally and logically inconsistent with withholding broad fair use exemptions from individual humans. The solution is to take a circumspect view of any fair use claim for mass copyright reproduction by any entity and focus on the first principles of whether permitting such exceptionalism for GenAI promotes science and the arts.