ABSTRACT
This paper examines the claim that generative artificial intelligence (GenAI) should be exempt from copyright law when reproducing copyrighted works without authorization, based on a fair use defense. It examines fair use legal arguments and eight distinct substantive arguments, contending that every legal and substantive argument favoring fair use for GenAI applies equally, if not more so, to humans. Therefore, granting GenAI exceptional privileges in this domain is legally and logically inconsistent with withholding broad fair use exemptions from individual humans. It would mean no human would need to pay for virtually any copyrighted work again. The solution is to take a circumspect view of any fair use claim for mass copyright reproduction by any entity and focus on the first principles of whether permitting such exceptionalism for GenAI promotes science and the arts.
David Atkinson, Unfair Learning: GenAI Exceptionalism and Copyright Law, 25 Chicago-Kent Journal of Intellectual Property 43 (2026).
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