This chapter explores the most significant legal challenge facing generative AI (GenAI) companies: the wave of copyright infringement lawsuits based on unauthorized copying of copyrighted works for model training. It establishes copyright law as the dominant legal battleground, compelling GenAI entities to rely almost entirely on the affirmative defense of fair use.

The analysis reveals two critical flaws in the industry’s fair use claims, challenging the notion of “GenAI exceptionalism”: The Legal Argument is that unlike prior cases of transformative use (e.g., Google Books), GenAI’s core function is shown to exploit the expressive quality of high-quality training material. The Substantive Argument put forth to justify GenAI’s fair use would, if consistently applied, logically grant every human the same right to copy and consume any copyrighted work without payment.

The chapter proceeds to systematically dismantle eight of the most common “substantive arguments” favoring GenAI, concluding that these claims either crumble under scrutiny or serve as thinly veiled demands for an exceptional right to corporate-scale content piracy.