Market-Based Licensing for Publishers’ Works Is Feasible. Big Tech Agrees.

Abstract

Generative AI (“GAI”) model developers prioritized speed to market over compliance with copyright law with respect to use of copyrighted works for training their models. Now facing over forty lawsuits, they have asserted fair use to evade responsibility, and they claim that licensing all necessary works is impossible. This Article focuses on professionally created works only, with an emphasis on publishers’ works, and demonstrates that market-based licensing of professionally created works for training GAI models is feasible as measured by the number of licenses and the ability of GAI developers to afford them—both of which are points on which Big Tech agrees. The Article also provides insights on the licensing marketplace for publishers’ works as relevant to training GAI models. Finally, the Article underscores that the public interest is squarely on the side of marketbased licensing because all stakeholders benefit, and it will help ensure that publishers and authors may continue their vital contributions to America’s political, intellectual, and cultural systems.