The DOJ Just Turned Fair Use Into a License to Steal
(SeaPRwire) –
The Justice Department’s decision to support OpenAI’s broad fair use reading is not a footnote in a copyright case. It is a policy choice that shifts who pays for innovation. Three major newspapers say their articles were used without permission. OpenAI says the law allows it. The DOJ just sided with OpenAI. The official rationale is American AI leadership. The unspoken consequence is that creative work becomes raw material for someone else’s profit.
The official facts are clear enough. The New York Times, the Chicago Tribune, and USA Today have all sued OpenAI over training data. OpenAI invokes the fair use doctrine, a legal principle that permits limited unlicensed use. The Department of Justice filed a brief endorsing an expansive interpretation. The Trump administration calls this a matter of economic and national security. President Trump has rechristened artificial intelligence as “super intelligence.” The implication is that American labs must lead, and that data access is the fuel. The Founding Fathers took a different view. They wrote the Intellectual Property Clause into the Constitution to promote science and useful arts by securing limited exclusive rights to authors and inventors. They linked a public objective to a private property right. For most of history, thinkers like Plato, Aristotle, and Aquinas never treated ideas as property. Enlightenment governments began to see the fairness and economic potential. The American design was a deliberate break.
The real social impact is visible in the stories the DOJ brief ignores. Elias Howe was a farmer’s son who worked in a textile mill and later as a machinist. His 1846 patent on a practical sewing machine gave him ownership. Thomas Edison sold newspapers and candy on trains, then used patents to build companies and commercialize everything from recorded sound to electric lighting. J.K. Rowling wrote the first chapters of Sorcerer’s Stone in cafés as a single mother. Her copyright allowed her to partner with a publisher and license films, television, theme parks, and Broadway. Aaron Krause invented an improved sponge. His patents were assets he brought into a Shark Tank negotiation. Lori Greiner invested $200,000. The business now generates roughly $220 million annually. Acumed started as a family business with one machinist. It patented an orthopedic nail for upper-arm and shoulder fractures. Stryker copied the technology, despite warnings from its own lawyers. Acumed sued and won. A jury found willful infringement. Courts granted a permanent injunction. Stryker appealed, and the Federal Circuit initially vacated the injunction after the 2006 eBay v. MercExchange ruling. The district court later granted a new one, and a federal appeals court upheld it in 2008. These are not anecdotes. They are the mechanism by which a small innovator competes with a wealthy corporation.
The governance structure that comes out of this fight will decide the next decade of AI. The fair use doctrine is not a blank check. It is a narrow exception with a defined purpose. Stretching it to cover commercial model training removes the licensing market for publishers and authors. Weakening injunctions makes patents harder to enforce against repeat infringers. Officials who served in the second Trump administration argue that weakening IP protections enables deep-pocketed companies to get away with infringement. The former deputy director of the U.S. Patent and Trademark Office now leads the Council for Innovation Promotion, a bipartisan coalition advocating strong intellectual property rights. The data from the Patent and Trademark Office shows the stakes: five years after obtaining their first patent, companies have 55% higher employment growth and 80% higher sales. That is the great equalizer in action. Courts should apply fair use carefully. They should not let the DOJ’s brief turn copyright into a compulsory license for AI platforms. The practical answer is a narrow reading of fair use, one that requires licensing for commercial training data. And the patent system should keep injunctions available. That preserves the constitutional bargain: limited exclusivity in exchange for public progress.