The Department of Justice spent years favoring copyright owners. That changed Wednesday.
With the Trump administration filing in support of OpenAI amid its legal fight with The New York Times, the administration departed from the status quo position of Washington politicians — one that had long cast its lot closer to the entertainment industry in matters of copyright legalities — to bolster its interests in the development of artificial intelligence.
“They’re not just saying, ‘Well, in our opinion, this would be the right legal outcome,’” Brandon Butler, executive director of the Re:Create coalition, an advocacy group of libraries and public interest organizations, told NOTUS. “They’re saying, ‘We have a stake in this case.’”
The administration argued its updated position in a statement of interest that stunned industry stakeholders, pivoting against guidance from the United States Copyright Office with references to Google, China and Ernest Hemingway.
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“I can’t remember any other example where the government, in a clear-eyed, full-throated way, made it clear to a court, on purpose, that this is how they felt about fair use,” said Adam Eisgrau, senior director of AI, creativity and copyright policy at Chamber of Progress, a center-left tech industry association. “If it’s not unprecedented, it’s darn unusual.”
And it could prove difficult for courts to ignore, with experts predicting similar filings from the government in relevant cases. It would lend the government’s weight to arguments of national security and fair-use doctrine, boosting AI companies as they endeavor to avoid paying billions of dollars for copyright infringement.
Previous administrations’ Justice Departments have had attorneys more aligned with the entertainment industry, according to multiple copyright lawyers. They specifically pointed to Donald Verrilli Jr., who served as solicitor general from 2011 to 2016 under President Barack Obama.
Before practicing for the government, Verrilli represented MGM Studios in the Grokster case over peer-to-peer distributors and copyright law. The Supreme Court unanimously sided with MGM in a case that strengthened protections for copyright owners.
In previous cases, the United States Copyright Office tended to favor copyright holders. But on Wednesday, the DOJ outright disagreed with the office and dismissed its analysis in a recent case as inadequate.
“That’s a big change from previous administrations,” Butler said.
The New York Times legal battle with OpenAI focuses on preventing AI models from collecting the publication’s work for training and use without a licensing fee.
In its filing, the Trump administration argued in favor of fair use, a narrower understanding of copyright protections that would allow large language AI models to be trained without paying fees to the Times and other news outlets. The administration argued that a broad fair-use doctrine was essential to staying ahead in the AI arms race.
“Rules of law that make it significantly more difficult to develop a robust AI industry in the United States therefore threaten national security and give a competitive advantage to foreign adversaries who are not so encumbered,” the filing says.
Graham James, a spokesperson for the Times, said in a statement to NOTUS that the administration sided with a handful of trillion-dollar AI companies over countless American creators “whose work they stole.”
“Both AI and creators can thrive — AI companies simply need to pay fairly for the content that makes their products possible, as copyright law requires,” James said. “The administration’s proposal to let companies take that content without permission or compensation would undermine the sustainability of the human-created content that a healthy society depends on, and which AI needs to function.”
Associate Attorney General Stanley Woodward Jr., who submitted the filing, called it a “historic” statement of interest.
“POTUS has made clear that AI dominance is critical to promote national security, prosperity, and economic mobility for all Americans,” Woodward posted on X, referencing the president of the United States. “This administration will never let our nation be at a disadvantage relative to our foreign adversaries based on a plainly incorrect understanding of copyright law.”
The Trump administration has moved toward alignment with existing precedent.
“The basic positions that the DOJ took here are very mainstream positions,” Jonathan Band, a prominent copyright attorney and scholar, said, adding that they were similar to how legal scholars have been viewing the issues “for decades.”
Band noted that the administration also indicated its shift during another case that involved copyright infringement that appeared before the Supreme Court last year. It had also indicated its position in a number of statements and executive orders. But fair-use advocates were waiting for something with solidity. They found it in the brief.
“This is a very serious, thought-through position,” Band said, rather than “political lip service.”
But, for some, the optics of the dynamic hint at future headaches.
In July, OpenAI CEO Sam Altman raised the possibility of the federal government acquiring a 5% stake in the company. Should a deal ever be consummated, the administration would’ve thumbed the scale in favor of a company it has a financial incentive to see succeed.
The possibility creates tension behind the administration’s motivation for stepping in.
“You have this kind of alignment of interests between the company you’ve invested in and the investor itself,” Anupam Chander, a professor of law and technology at Georgetown University, told NOTUS. “And that may be one reason that a company is keen to have government investment, on the theory that the government is more likely to favor that company in the future.”
If a deal ever happens, with OpenAI or another company, it will cause questions whenever the government puts its thumb on the scale.
“Because anytime there’s AI rulemaking, there will be a suggestion that the rule is too favorable to an AI company, because that ultimately favors the federal government’s investment,” Chander said.
Others said that the filing shouldn’t be considered a conflict of interest, even if the government did own a piece of OpenAI, since the administration’s argument would increase competition from smaller AI companies.
“If the United States government wanted to do something great for OpenAI and make them kind of the permanent winner of the AI wars, you’d think they might not step in in favor of fair use here,” Butler said.
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