Language models are creating new terrain for copyright law.
Personally, I favor as much freedom as we can possibly endure. On the other hand, practical economic realities are likely to dictate outcomes that balance payments to rights owners and encouragement of innovation by AI firms.
History strongly suggests that pattern will emerge.
In the past, rights holders usually wanted control (veto power over new uses). Courts and Congress usually compromise by substituting compensation (compulsory licenses, collective societies, levies) for control.
Radio stations, cable companies, physical media distributors and streaming platforms captured enormous value from others' content, then eventually reached licensing accommodations.
Player piano rolls in the late 1800s reproduced sheet music mechanically, and publishers argued this was infringement.
The Supreme Court ruled in White-Smith Music v. Apollo (1908) that piano rolls were not copies because copyright covered notation readable by humans, not mechanical reproductions.
Congress then passed the Copyright Act of 1909, which created the compulsory mechanical license, under which anyone could record a song already recorded by someone else, provided they paid a statutory royalty.
Radio created a new problem:
Film created other issues. Sound film after 1927 meant a single film now embodied multiple copyrights simultaneously:
The question of who owned what in a collaborative industrial production led to the work-for-hire doctrine. Studios owned everything, employees and contractors owned nothing.
International distribution exposed the territorial nature of copyright immediately. The Berne Convention (1886, continuously expanded) became the framework for international harmonization.
Magnetic tape, then cassettes, then VHS created successive waves of the same basic problem: cheap, accessible reproduction technology.
The 1971 Sound Recording Amendment was the first law to give sound recordings their own copyright protection (previously, only the underlying composition was protected).
Sony v. Universal City Studios (the "Betamax case," 1984) is one of the most consequential copyright decisions ever. Hollywood sued Sony for making VCRs, arguing Sony was liable for the infringement its customers committed.
The Supreme Court ruled 5-4 that:
The Betamax decision shaped technology law for decades. It's why VCRs, DVRs and the consumer electronics industry could exist without needing Hollywood's permission.
The Audio Home Recording Act (1992) eventually addressed digital audio tape (DAT) by requiring copy-protection technology in DAT recorders and adding a levy on blank digital media, a compromise that established the principle that hardware makers could be taxed to compensate rights holders.
Cable TV initially retransmitted distant television broadcast signals without compensation. The Supreme Court ruled twice (1968, 1974) that cable retransmission wasn't infringement because cable companies weren't "performing" the works.
But the Copyright Act of 1976 created a compulsory license for cable retransmission.
This compulsory-license-as-compromise model recurs throughout copyright's adaptation to new media.
Xerography created frictionless reproduction of printed text.
The 1976 Act addressed this partly, and the Copyright Clearance Center was founded in 1978 as a collective licensing organization, allowing libraries and businesses to pay blanket fees for photocopying rights.
CDs introduced a paradox: perfect digital copies. This era produced the first serious deployment of Digital Rights Management concepts. It also sharpened the debate about the first sale doctrine — you can resell a CD you bought, but can you resell a digital file?
The DMCA (1998) was the legislative response.
MP3 and the iPod era forced the unbundling of the album into individual songs, collapsing per-unit revenue and forcing the industry toward licensing models.
Streaming is philosophically interesting because it doesn't fit the reproduction model at all — you're not copying anything, you're accessing a performance. This is actually closer to the original concept of performance rights than anything since radio.
Spotify, Netflix, and their successors forced the creation of entirely new licensing frameworks:
mechanical licenses for on-demand streaming, negotiated rates between platforms and labels, windowing strategies for film.
The Music Modernization Act (2018) was the most significant music copyright reform in decades, largely cleaning up the licensing mess streaming had created.
Crucially, streaming finally gave performers (not just composers) digital performance royalties.
AI companies likely will eventually fit this compulsory license pattern almost perfectly.
The internet produced many precedents that might shape AI copyright:
The Digital Millennium Copyright Act
The notice-and-takedown system (rights holders can demand platforms remove infringing content, and platforms that comply get "safe harbor" protection from liability
Anti-circumvention rules making it illegal to bypass digital rights management (DRM) technology
ISP liability limits** — shielding internet service providers from liability for what users transmit, provided they act on takedown notices
The No Electronic Theft Act (1997) closed a loophole where non-commercial infringement wasn't clearly criminal. Before it, you had to be *selling* pirated content to face criminal liability
The Sonny Bono Copyright Term Extension Act (1998) extended copyright terms by 20 years
Perfect 10 v. Amazon/Google (2007) established that search engine thumbnail images and inline linking could qualify as fair use
Authors Guild v. Google validated Google's mass scanning of copyrighted books as fair use
Viacom v. YouTube (2012) confirmed that platforms don't lose protection simply because infringement is general knowledge
The Napster and Grokster cases (2001, 2005) established "contributory infringement" and "inducement" doctrines: you can be liable not just for infringing yourself, but for building a platform *designed* to encourage infringement.
Beyond law, the internet forced copyright to adapt through raw economic pressure:
Licensing at scale became essential
Creative Commons (2001) created a voluntary licensing system letting creators specify in advance what reuse they permit
Terms of service became a shadow copyright system
Geoblocking and regional licensing became standard business practice as companies realized the internet didn't respect territorial copyright boundaries that the entire global licensing system was built around.
The historical pattern suggests the outcome will likely be some combination of new licensing frameworks, platform liability rules, and compensation mechanisms rather than either "AI training is fully free" or "AI training is categorically infringing."
The internet precedents suggest the law will bend toward enabling the technology while extracting some structural protections for creators.
My own thinking leans towards permissiveness where it comes to the use of content. As for the argument that language models unfairly infringe copyrights because they “read” or “ingest” content, my argument would be that this non-infringing work is what humans do routinely, and it is not copyright infringement.
When a person reads a novel, watches a film, or listens to music, they:
Absorb patterns, styles, vocabulary, narrative structures
Develop taste and skill influenced by what they've consumed
Produce new works that are clearly downstream of that consumption
Do all of this without paying royalties or seeking permission
Nobody considers this a copyright violation, even when the influence is obvious. A novelist can write "in the style of Hemingway" after reading all his books, or a musician whose sound is clearly shaped by artists they grew up listening to.
AI models do that, but with some important differences, some will argue:
Scale and speed
Reproduction during training, which involves making copies of copyrighted content and storing them (transiently) on servers. Courts have historically treated that mechanical act of copying as significant, regardless of what happens downstream
Memorization and regurgitation at scale that arguably collapses the distinction between learning from something and copying it
Market substitution when an AI trained on a photographer's portfolio can produce images that replace demand for that photographer's work.
The enduring issues suggesting preserving freedom are:
knowledge and style aren't ownable
culture builds on culture
the internet was built on the assumption that content could be read and indexed.
The case for creator protection rests on:
copyright exists precisely to ensure creators can sustain the work of creation
the AI industry is extracting enormous commercial value from creative labor without compensation
"humans do it too" ignores that humans don't build billion-dollar products directly monetizing others' uncredited work.
The resolution will require development of compensation structures that make the ecosystem fair to creators while not strangling a genuinely transformative technology.
In my view, compulsory license in some form.
