AI Bots Are Stripping European Booksellers’ Shelves; EU Copyright Law May Ban It — The industrial-scale destruction of books for training LLMs has reached Europe. The practice emerged following the decision in Bartz v. Anthropic, a lone district court decision in the US that ignored clear contrary precedent.

Meta Fails to Block Zuckerberg Deposition in AI, Copyright Suit — The Meta CEO will be deposed in the copyright suit before the end of the month. Counsel for one of the plaintiffs had argued that Zuckerberg “has personal knowledge of Meta’s AI initiatives including Project Vellum, a program to purchase and scan physical books to train AI models.”

The French Association of News Media has accused Google’s AI summaries of copyright infringement and called on regulators to launch an investigation. — Google’s AI summaries are in the spotlight in France, which has press publisher rules requiring payment and good-faith negotiations by digital aggregators to display article extracts.

Shein loses UK copyright lawsuit against rival Temu in key e-commerce ruling — The clash beteween the two ecommerce giants began with allegations by Shein that Temu engaged in “industrial-scale” copying of photos of its clothing offerings. The UK court rejected the claims, finding that Temu had not authorized infringement by third-party merchants that uploaded the images to its platform, nor that it had the requisite knowledge of the infringement.

Tech Bro Scrapes Anti-AI Photo App Cara, Then Gloats About It — The site was created to allow photographers to share their work online on a platform that would prevent it from being scraped to train AI. The site was scraped anyway. The site’s founder asks, “What are artists supposed to do? We already have anti-bot and anti-scraping measures. We already set robots.txt telling bots not to scrape for AI.”

AI Developers’ Trail of Book Destruction — There is no “loophole” in copyright that permits scanning books if you destroy the original. There is a single federal district court decision that did not acknowledge the body of case law that says otherwise, including binding precedent from its own Circuit Court. Keith Kupferschmid of the Copyright Alliance takes a closer look at the stories around AI developers scanning and destroying physical books for training materials.

The Underappreciated Third U.S. Fair Use Factor in Copyright Infringement Cases Concerning AI Training — Law professor Marketa Trimble discusses the third fair use factor, which directs courts to consider “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” when analyzing whether a particular use is a fair use, and observes that in most cases, while AI companies use a vast number of works to train models, no particular work is required for an AI model. This raises an issue under fair use since it indicates a lack of the type of justification to use a particular work that is needed for fair use.

Google Earth Pulls AI Image Generator After Users Created Misleading Images — There are several explanations for why seemingly every week one of the major tech companies introduces a new AI feature that no one asked for and is clearly harmful (example). One is that they are beta testing and need to collect large amounts of real world user data.

AI-assisted music now eligible for copyright registration in South Korea — The Korea Music Copyright Association reversed its earlier policy that made such works ineligible for registration. Songs generated purely from text prompts without any additional human involvement will remain ineligible under the new policy.

China’s MiniMax curbs overseas access to new AI video model over copyright disputes — The developer has limited access to users in the US, EU, UK and South Korea following ongoing copyright litigation, including a federal lawsuit in the US brought by several film studios.

German court rules AI music firm Suno broke copyright rules — The final text of the decision is not yet public, and the ruling can be appealed. Nevertheless, first-hand reports suggest the court held both that the training of the model with copyrighted works is not fair use under US law and that outputs retrievable in Germany can be domestic acts of infringement.

Only humans can be ‘authors’ say Canadian music publishers in test case on copyright status of AI-generated works — The association for Canadian music publishers has formally intervened in a challenge of a copyright registration for an AI-generated work which has already been denied registration by the US Copyright Office.

ChatGPT starts blocking direct requests to copy an author’s style — Ars Technica reports the generative AI model is now preventing outputs that copy authors’ styles, which suggests the company may foresee exposure to liability for the outputs it model generates independent of liability for training.

Meta Says It Has Scanned Every Single Public Instagram Post With its AI — Another week, another tone-deaf admission from the social media giant. The benefit of the scanning touted by Meta is that users spend more time on Instagram.

It’s a wrap: Constructive discovery under copyright statute of limitations — Attorney Vincent Li analyzes a recent Second Circuit decision in Hayden v. Koons in which the court dismissed a copyright infringement claim as untimely rejecting plaintiffs constructive discovery arguments.

Bad Bunny asks judge to reconsider reggaeton ‘dembow’ copyright ruling or certify it for appeal to the Ninth Circuit — The motion comes in response to a July 1 ruling denying defendants’ motion for summary judgment on claims that over 150 artists infringed on works in which foundational reggaeton elements can be found.

OpenAI faces sanctions bid as copyright case escalates — News plaintiffs have moved for remedies related to what they call the “deliberate and systemic effort to obstruct discovery” by the generative AI startup. The news lawsuits are running in parallel with author class actions against OpenAI.

Publishers, Authors File Class Action Lawsuit Against Google — The lawsuit alleges the tech giant engaged in widespread infringement to train its Gemini AI models, including copying from books provided by publishers for other Google services, such as Google Books.

Designers beware: Register your building designs as architectural works — A West Virginia federal court dismissed a copyright infringement claim because the works, building designs for a bubble tea shop and restaurant, were registered as “pictorial, graphical, or sculptural works,” rather than as “architectural works.” Sounds like a formality that acts as a trap for the unwary.

Mexico Reforms Copyright Law to Protect Against AI, Voice Cloning — Analysis of amendments to Mexico’s Federal Copyright Law introduced in May, which would strengthen image and likeness rights for individuals, including with respect to generative AI uses.

The primary objective of fair use is not to confer a private benefit on those who copy the works of others, but to promote the progress of science and useful arts.¹ The Copyright Act directs courts to specifically consider “the effect of the use upon the potential market for or value of the copyrighted work,” and more broadly, courts weigh all four factors together, “in light of the purposes of copyright.”²

These principles are especially important in the debate over generative AI. Frontier model developers consistently invoke the language of public benefits when advocating for expansive applications of fair use to training.³ The language in Google v. Oracle, where the Supreme Court said it “must take into account the public benefits the copying will likely produce” is cited.⁴ The argument is simple: if AI models generate social benefits, then those benefits should weigh in favor of permitting developers to train their models on copyrighted works without authorization.

This reasoning, however, is incomplete, because it considers only one side of the public benefit inquiry. Copyright’s objective is not to maximize the immediate utility of copied works regardless of the consequences. It is to encourage the continued production and dissemination of knowledge through exclusive rights. Courts therefore cannot evaluate only the benefits that may be generated by AI models while ignoring the costs imposed on the authors and institutions that make those benefits possible. An analysis that measures only potential gains without considering what society loses when the underlying information ecosystem is weakened fails to advance the purposes that justify fair use in the first place.

Wikipedia illustrates this point.

The New York Times recently reported the site faces an “urgent” concern in the AI era.⁵ “Wikipedia is being exploited to train its own competitors, as A.I. systems hoover up its content to inform chatbots like Gemini, Claude and ChatGPT,” writes technology reporter Tiffany Hsu. “The bots then regurgitate the information, often imperfectly, polluting the information ecosystem that feeds into the encyclopedia.” According to the Wikimedia Foundation, the non-profit organization that supports the site, automated requests from bots associated with AI training now account for nearly one-third of its most bandwidth-intensive traffic. Bernadette Meehan, the organization’s CEO, is quoted as saying, “Our infrastructure is not free, and when scrapers come in and bulk-download, it really takes a toll… There is a literal dollar cost to that behavior.” Compounding the injury, A.I. generated summaries of Wikipedia topics “siphon away potential visitors” from the site, with human page views of the English edition down eight percent late last year compared with the year prior.

Wikipedia is not alone in this regard.

The Confederation of Open Access Repositories (COAR) reported in April [2025] that more than 90% of 66 members it surveyed had experienced AI bots scraping content from their sites — of which roughly two-thirds had experienced service disruptions as a result. “Repositories are open access, so in a sense, we welcome the reuse of the contents,” says Kathleen Shearer, COAR’s executive director. “But some of these bots are super aggressive, and it’s leading to service outages and significant operational problems.”⁶

Every publicly available publisher, archive, and repository of valuable content and information must devote resources to maintaining servers, monitoring network traffic, preventing abuse, and ensuring that ordinary users can continue accessing the site. If AI developers are free to expropriate this content and information, they are able to largely retain the economic gains produced by their models, while many of the operational costs associated with large-scale extraction remain with the institutions that produce and disseminate the underlying content. 

This allocation of costs should matter to the fair use analysis. If a rule, by permitting them to use copyrighted work to train generative AI models or by privileging copying when copyrighted works are made publicly available, shifts costs from commercial users onto the institutions that create and disseminate knowledge, those institutions will have fewer resources available to carry out their missions. For nonprofit organizations like the Wikimedia Foundation, every dollar spent addressing industrial-scale scraping is a dollar that cannot be spent improving educational resources, preserving historical materials, supporting volunteer contributors, expanding digital collections, or making information available to new audiences. The cumulative effect is to reduce investment in the very activities copyright seeks to encourage.

This is true whether we’re talking about authors and publishers operating in the commercial space or nonprofit knowledge organizations. Educational institutions, archives, and open-access publishers all operate within financial constraints, and their ability to provide free public access depends, among other things, upon maintaining technical infrastructure that is both reliable and affordable. As AI companies increasingly rely upon these resources to train proprietary commercial models, the burden of financing that infrastructure increases, yet the burden remains on the very organizations responsible for creating the valuable resource.

The irony is that many advocates of expansive fair use for AI training also advocate for the continued viability of the open web and public access. Making information available for free does not remove the costs. Even free and public resources require sustained investments in technology, personnel, maintenance, security, and administration. When commercial AI developers exploit those resources while shifting a substantial portion of the resulting costs back onto the institutions making those resources available, the long-term consequence may be fewer publicly accessible resources rather than more.⁷

Copyright provides exclusive rights that enable authors and publishers to tailor how, when, and where they make their work available to the public to accomplish their goals, whether those goals are commercial, non-profit, or some mix of the two. It protects works that are made publicly available on the open web, and it serves as the foundation for open access licenses like Creative Commons, which permit reproduction and reuse for some, but not all, uses under certain conditions.

The fair use inquiry should therefore ask a broader question than whether unauthorized AI training produces useful technology. It should ask whether the legal rule governing that training strengthens or weakens the institutions that sustain our knowledge ecosystem over time. If unrestricted scraping requires organizations like Wikipedia to devote increasing resources toward subsidizing the development of commercial AI systems, courts should recognize that consequence as part of the fair use analysis. Copyright’s objective is not simply to encourage new technologies, but to sustain the conditions under which knowledge continues to be created, maintained, and made available to the public. A conception of fair use that systematically erodes those conditions ultimately works against copyright’s fundamental purpose.

New York Times-led group asks court to sanction OpenAI in US copyright dispute — In litigation originally filed in 2023 alleging the AI developer infringed copyright in news publishers’ works when it trained its Large Language Models, the group of newspapers this week asked the court to impose sanctions on OpenAI for allegedly misrepresenting its ability to search its training datasets and deleting other key evidence during discovery.

Judge Chhabria denies Kadrey book authors’ motion to seek an interlocutory appeal of downloading part of ruling in fair use decision — The order means that, for now, the Ninth Circuit will not weigh in on the question of whether copying works from notorious pirate sites can be excused if the works are later used for something that qualifies as fair use.

Outcry as Meta lets users make AI images from public Instagram profile pics — The feature, which is turned on by default, facilitates the creation and manipulation of user photos with Meta’s artificial intelligence tools.

Taylor Swift Granted Motion to Dismiss ‘Absurd’ Copyright Lawsuit Where Woman Claimed Pop Star Copied Her Poems — Days after her Madison Square Garden wedding, the pop star won a motion to dismiss claims she copied from a Florida poet to create lyrics “for more than a dozen songs featured on her albums Lover, Folklore, Evermore, Midnights and The Tortured Poets Department.”

French regulator slams Meta over failure to pay media outlets — A 2019 French law requires online service providers, including social media companies, to obtain authorization from publishers of online news services or press agencies before any reproduction or communication to the public of all or part of their press publications in a digital form and compensate them for exploitation of those rights. This week, the French competition authority ordered Meta to resume negotiations with two news agency groups in order to meet its obligations under the law.

Reggaeton artists’ unoriginality argument falls short in Jamaican producers copyright suit — At issue is “Fish Market”, a 1990 musical work and sound recording that was used without authorization by numerous reggaeton producers. The court denied summary judgment, saying, “The record presents genuine disputes of material fact regarding the identification, characterization, and protectability of the Fish Market elements, precluding summary judgment in either side’s favor.”

Kim Dotcom Loses Court of Appeal Bid to Block Extradition to the U.S. — The alleged operator of Megaupload continues to fight, unsuccessfully, his extradition from New Zealand to the US to face criminal copyright infringement charges originally filed in 2012.

Hearing Confirms Congress is Moving Ahead with Legislation to Protect Creators Against Piracy and Digital Replicas — A summary of the hearing, held this week by the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet. Witnesses included actor SAG-AFTRA president Sean Astin.

New copyright shareholder derivative suit v. Microsoft, its directors & officers. Microsoft becomes 2d company hit with new legal theory — As reported by Prof. Ed Lee, the new lawsuit alleges “that corporate officers or the board of directors approved copyright infringement, exposed the company to substantial risk of copyright liability, or made material misrepresentations about such conduct.”

AI-generated search summaries and personality rights: Munich court grants preliminary injunction against Google — Writing for IPKat, Marcel Pemsel analyzes a recent decision from a court in Germany that held Google liable for AI-generated answers that incorrectly claimed the plaintiff was known for fraudulent or dubious business practices.

It might seem strange to think about paper on the 250th anniversary of the signing of the Declaration of Independence. It’s easy to take it for granted, especially in the digital age, but the fact is, without paper there would be no Declaration. Indeed, we Americans celebrate the day the Declaration was printed and published (July 4) rather than the date the Continental Congress approved the Lee Resolution (July 2) declaring independence from Great Britain.¹ A closer look at the material object in which the Declaration is embodied shines a light on relevant background conditions that may get overlooked and serves as a jumping off point to consider the role of the new government in encouraging printed works.

During the last big anniversary of the Declaration, the Bicentennial in 1976, the Library of Congress brought together existing copies of the first printing of the Declaration of Independence, twenty-one in all, for a detailed physical and scientific examination.² The researcher, Frederick R. Goff, identified at least three different watermarks among the copies. This suggests the printer, John Dunlap, used whatever paper he had on hand for the printing and did not have enough paper from any single batch for the entire printing.³

Such a fact would not be surprising, given that there was a critical shortage of paper in the British American colonies at that time resulting from the Stamp Act of 1765, one of the precipitating events leading to the American Revolutionary War. The Act was a direct tax passed by the British Parliament on various forms of paper, documents, and playing cards in the colonies.⁴ It is from here that the rallying cry of “no taxation without representation” has its origins,⁵ though protests also drew a connection between “the materiality of paper documents and the ability to conduct the business of the state.”⁶ The Act triggered a critical shortage of paper in the decade to follow.⁷

And so, as the 28-year-old Irish immigrant Dunlap, working hastily and through the evening of July 4, used whatever paper he had on hand for the broadside, the material served as a reminder of the events leading to that moment.

The Background Conditions of the Declaration

Of course, the text of the Declaration is important. Authorship is often attributed solely to Thomas Jefferson, since he wrote the first draft. But it was just as much a product of the Second Continental Congress and its process, which culminated in a committee of five to finalize the document. Besides Jefferson, the committee consisted of Benjamin Franklin, John Adams, Robert Livingston, and Roger Sherman.

The ideological origins of the Revolution are multifaceted, but the text of the Declaration opens with “an emphatic assertion of the vitality of the law of nature” that “war was necessary to achieve for the colonists ‘the separate and equal station to which the Laws of Nature and of Nature’s God entitle[d] them.’”⁸ In Jefferson’s own words, the Declaration proclaimed no “new principles, or new arguments” but rather the “harmonizing sentiments of the day” to justify the resort to arms against the British.⁹ There’s no shortage of scholarship regarding the sources that influenced these sentiments. I want to highlight two of those sources that receive less attention than others.

The first is Emer de Vattel (1714-1767), a philosopher and diplomat born in what is now Switzerland.¹⁰ Vattel rose to acclaim following the 1758 publication of his treatise, Law of Nations, or Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, which quickly found its way to British America. When a group of colonial lawyers, including John Adams, wrote objections to the 1765 Stamp Act, they relied on Vattel among their authorities. According to one scholar, “The founding generation used his authority to effectively declare their independence and to portray Britain as a rogue state against which confederations should be formed.¹¹

The second is Jean-Jacques Burlamaqui (1694-1748), a legal and political theorist and professor from Geneva. Like Vattel, he concentrated on natural law and ethics, and an English translation of his seminal work, The Principles of Natural and Politic Law, reached the American colonies in the 1750s.¹² Burlamaqui emphasized happiness as the end of man, government as the means for securing that end. The similarities between Burlamaqui’s writings and the Declaration’s language regarding the role of government in securing the unalienable rights of “life, liberty, and the pursuit of happiness” are striking.¹³

Encouraging the arts and sciences

The Declaration was printed as a broadside, a document printed on a single sheet of unfolded paper. During colonial times, printers also produced tracts (a single sheet folded into pages), pamphlets (two to five sheets folded into pages), and books.¹⁴ Pamphlets played a major role in transmitting arguments in favor of revolution, from Thomas Paine’s Common Sense, to John Dickinson’s Letters from a Farmer in Pennsylvania, and scores more.¹⁵ The founders were huge proponents of books. “Through books they sought both knowledge and self-knowledge, the means by which better to live. For them books were not irrelevancies but bulwarks against barbarism and tyranny.”¹⁶ There was a shared sense among them of the importance of the press, education, science, and literature.

But the war against Britain would first press the need for paper for more functional uses. The Continental Congress needed it for currency, records, and correspondence. The colonial armies needed paper to fight: the muzzle-loaded guns that were common at the time used cartridges consisting of a tube of paper filled with powder and shot.¹⁷ To provide just one example of the precipitous balancing act: two weeks after the Declaration was signed, the Continental Congress passed a resolution prohibiting Pennsylvania paper makers from joining the militia, to ensure sufficient labor for manufacturing paper.¹⁸

We know how the story of the Revolution ends. The colonists would eventually prevail and turn to constituting a more enduring government, one in which paper could be deployed toward less urgent needs and more lasting contributions to art and science. Here, Vattel and Burlamaqui both made relevant arguments about the state’s role in encouraging such contributions.

Vattel wrote,

Who can doubt that the sovereign–the whole nation–ought to encourage the arts and sciences? To say nothing of the many useful inventions that strike the eye of every beholder–literature and the polite arts enlighten the mind, and soften the manners… The nation and its conductors ought then to protect men of learning and great artists, and to call for talents by honours and rewards.¹⁹

Along the same lines, Burlamaqui included “political regulations which tend to promote the arts and commerce” among “all the institutions which men form among themselves for their common good and advantage.”²⁰

Eleven years after the Declaration was delivered from Dunlap’s press, a group of founders were back in Independence Hall to debate and draft the Constitution.²¹ The first article of the document enumerated the legislative powers that Congress could wield. Among them, the 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” — certainly not a top priority, but important enough to include.

When James Madison addressed this power in the Federalist Papers, his remark that “The utility of this power will scarcely be questioned”²² echoed Vattel’s statement that “in the present age, the utility of literature and the polite arts is pretty generally acknowledged, as is likewise the necessity of encouraging them.”²³

Epilogue

The story of the American Revolution includes many characters. Roger Sherman, who was on the Committee with Jefferson to draft the Declaration of Independence, may not be one of the main characters, but he is arguably one of the strongest recurring characters. Among all the founders, he is the only one to sign all four of the foundational documents: the Continental Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. He was self-taught, and “an inveterate reader, admired Milton and Vattel.”²⁴ Active in Connecticut politics, he led nonimportation efforts there following the Stamp Act. And he was a key player in the Constitutional Convention, proposing the Connecticut Compromise that removed one of the largest deadlocks facing the states.

Sherman was elected to the House of Representatives following ratification of the Constitution. In that role, he joined Representatives Elias Boudinet and Peter Silvester to draft the first copyright act.²⁵ The bill was signed into law by President George Washington on May 31, 1790.

Nearly 400 local newspapers sue OpenAI, Microsoft over alleged copyright theft — The lawsuits challenging the unauthorized use of copyrighted works to train Large Language Models do not appear to be slowing down. This latest, from a large coalition of local newspapers, is the first to be filed by the law firm Platkin LLP, which was created earlier this year by former New Jersey Attorney General Matthew J. Platkin.

En Banc Ninth Circuit to Reconsider Copyright’s Total Concept and Feel Test — It is not often that one of the major copyright jurisdictions revisits a fundamental doctrine that has been in place for five decades, but a recent grant of en banc review by the Ninth Circuit will reconsider the substantial similarity standard for copyright infringement.

WIPO Alert Pay Aims to Cut Off Piracy Profits with Help from Payment Providers — Torrentfreak’s Ernesto Van Der Sar reports on WIPO’s new “Alert Pay” initiative, a voluntary cooperative effort between copyright owners and payment service providers like Mastercard and PayPal that enables rightsholders to flag pirate site uses of payment services.

Luca Guadagnino’s Nearly Finished Sam Altman Movie ‘Artificial’ Dropped by Amazon After OpenAI Partnership — The film stars Andrew Garfield as the OpenAI CEO and focuses on the period in 2023 when Altman was briefly fired by the company’s board and then rehired. Variety reports the dropping of the film, which has already had test screenings, “notably comes after Amazon struck a massive partnership with the tech company in February to expand OpenAI’s use of Amazon Web Services and develop custom AI models.”

News, cultural groups want clarity on copyright after Ottawa releases AI strategy — The groups have noted that the government’s strategy, which includes additional funding for AI and encourages Canadian’s use of the technology, does not mention copyright once and “want the government to state it will not introduce an exemption to the law allowing companies to use copyrighted content for AI system training.”

Should fair use give an advantage to certain business models?

The obvious answer is no. All things being otherwise equal, fair use should not privilege the use of copyrighted works merely because of the business model adopted by the user. That is, independent of the purpose and character of the use and the effect of the use upon the potential market for or value of the copyrighted work, the choice of business model by the user should not weigh in favor of fair use.

But a recent Third Circuit decision appears to have done just that.

In American Society for Testing Materials (ASTM) v. UpCodes, the court in April considered whether the copying of ASTM’s copyrighted building codes by for-profit startup UpCodes was permitted by fair use.¹ Fair use requires courts to consider four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.²

A determination under the first factor that a use “is of a commercial nature” in theory weighs against fair use, though it is not dispositive.³ The caution against placing too much weight on this subfactor is driven in part because of the observation that “nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research … ‘are generally conducted for profit in this country.'”⁴

The Third Circuit began its discussion of commerciality by describing the defendant’s business model.

UpCodes uses a “freemium” business model. Any user who makes an account on UpCodes’ website can view and copy building codes and incorporated standards for free. UpCodes also offers an optional paid subscription that provides access to bookmarking, annotation, automation, and artificial intelligence tools.

It concluded that the subfactor favors neither party.

Primarily, it agreed with the district court’s conclusion that UpCodes’ use was “largely noncommercial”, distinguishing the free access to the works provided by UpCodes from the use in an earlier Third Circuit decision, Video Pipeline, Inc. v. Buena Vista Home Entertainment, which was held to be commercial because the defendant charged a fee to access the copyrighted works at issue.⁵ It acknowledged UpCodes is a for-profit company, but said its for-profit status “is moderated by the fact that users pay for access to UpCodes’ proprietary tools and technology, not for access to the Works.”

The court also considered the indirect commercial advantage UpCodes might reap from the copying, but said such advantage “carries less weight than evidence of direct profit,” and the manner and extend of the benefit here “remains unclear.”

The Third Circuit distorted the commerciality inquiry by treating free public access to copyrighted works as noncommercial or only weakly commercial.⁶ In digital markets, free access is often part of a broader commercial strategy rather than an absence of commercial activity.

The freemium business model employed by UpCodes, which combines a free level of service with a premium, paid level of service, is very popular among digital services.⁷ Ad-supported services and two-sided markets like social media services and search engines also commonly provide zero-price access to content as part of broader revenue generating models. The fact that nearly every successful online service employs some version of these models demonstrates the commercial benefits of zero-price offerings.

By conflating “free to the user” with “noncommercial,” the Third Circuit risks transforming fair use into a subsidy for particular digital business models. A platform that acquires audience attention, advertising revenue, market share, data, network effects, or other strategic advantages through the unlicensed use of copyrighted works is engaging in commercial activity even if there is no direct charge for access the works themselves. The relevant question should not be whether the user paid a price, but whether the defendant used copyrighted expression as an input into a broader profit-seeking enterprise. Indeed, USC Law Professor Jonathan Barnett argues in his 2024 book, The Big Steal, that tech platforms have deliberately sought to weaken copyright, including through expanding the scope of fair use, to reduce their costs of securing content, which they then monetize within their broader services.

ASTM‘s flawed commerciality analysis spills over into other parts of the fair use analysis. In its consideration of the purpose and character of the use, the Third Circuit rejects plaintiffs argument “that both parties share an identical purpose of making the Works available to the public on a subscription basis.” Says the court,

This characterization is not supported by the record. First, ASTM does not make the Works available to the public; it makes them available to those who pay for them. Second, UpCodes does not make the Works available on a subscription basis; it makes the Works available to all users, regardless of subscription status, and offers a paid subscription for advanced features.

This language is confusing and unhelpful. To be clear, I don’t believe the Third Circuit is saying that the fact that the defendant is providing free access to copyrighted works that the plaintiff charges for should weigh in favor of fair use. That would be illogical: any infringer can and does offer access to copyrighted works for free, or at least a lower price then the copyright owner charges. That is the very scenario copyright law exists to prevent. But it certainly doesn’t help future courts in viewing zero-price offerings as just another commercial strategy.

The ability of copyright owners to control pricing, including the decision to distribute a work for free, is one of the fundamental interests copyright protects. Offering another person’s work at a lower price, or at a price of zero, does not otherwise negate commerciality or indicate a public benefit.