    [Senate Hearing 119-202]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 119-202

                    TOO BIG TO PROSECUTE?: EXAMINING THE AI
                          INDUSTRY'S MASS INGESTION OF
                       COPYRIGHTED WORKS FOR AI TRAINING

    =======================================================================

                                    HEARING

                                   before the

                   SUBCOMMITTEE ON CRIME AND COUNTERTERRORISM

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JULY 16, 2025

                                   __________

                               Serial No. J-119-30

                                   __________

             Printed for the use of the Committee on the Judiciary

                    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                  U.S. GOVERNMENT PUBLISHING OFFICE
    61-891                WASHINGON : 2026

                           COMMITTEE ON THE JUDICIARY

                      CHARLES E. GRASSLEY, Iowa, Chairman
    LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois,
    JOHN CORNYN, Texas                       Ranking Member
    MICHAEL S. LEE, Utah                 SHELDON WHITEHOUSE, Rhode Island
    TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
    JOSH HAWLEY, Missouri                CHRISTOPHER A. COONS, Delaware
    THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut
    JOHN KENNEDY, Louisiana              MAZIE K. HIRONO, Hawaii
    MARSHA BLACKBURN, Tennessee          CORY A. BOOKER, New Jersey
    ERIC SCHMITT, Missouri               ALEX PADILLA, California
    KATIE BOYD BRITT, Alabama            PETER WELCH, Vermont
    ASHLEY MOODY, Florida                ADAM B. SCHIFF, California

                 Kolan Davis, Chief Counsel and Staff Director
             Joe Zogby, Democratic Chief Counsel and Staff Director

                   Subcommittee on Crime and Counterterrorism

                          JOSH HAWLEY, Missouri, Chair
    LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois,
    JOHN CORNYN, Texas                       Ranking Member
    TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
    MARSHA BLACKBURN, Tennessee          CHRISTOPHER A. COONS, Delaware
    KATIE BOYD BRITT, Alabama            RICHARD BLUMENTHAL, Connecticut
                                         CORY A. BOOKER, New Jersey

                   Stephen Andrews, Republican Chief Counsel
                   Saurabh Sanghvi, Democratic Chief Counsel

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Hawley, Hon. Josh................................................     1
    Durbin, Hon. Richard J...........................................     3

                                   WITNESSES

    Baldacci, David..................................................     9
        Prepared statement...........................................    28
        Responses to written questions...............................    82
    Lee, Edward......................................................    12
        Prepared statement...........................................    33
        Responses to written questions...............................    87
    Pritt, Maxwell...................................................     4
        Prepared statement...........................................    51
        Responses to written questions...............................    93
    Smith, Michael...................................................     6
        Prepared statement...........................................    72
    Viswanathan, Bhamati.............................................     8
        Prepared statement...........................................    77

                                    APPENDIX

    Items submitted for the record...................................    99

                      TOO BIG TO PROSECUTE?: EXAMINING THE
                        AI INDUSTRY'S MASS INGESTION OF
                       COPYRIGHTED WORKS FOR AI TRAINING

                                  ----------

                            WEDNESDAY, JULY 16, 2025

                          United States Senate,
            Subcommittee on Crime and Counterterrorism,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 12:03 p.m., in
    Room 226, Dirksen Senate Office Building, Hon. Josh Hawley,
    Chair of the Subcommittee, presiding.
        Present: Senators Hawley [presiding], Durbin and Welch.

                OPENING STATEMENT OF HON. JOSH HAWLEY,
               A U.S. SENATOR FROM THE STATE OF MISSOURI

        Chair Hawley. Welcome, everyone, to the hearing today,
    which is entitled ``Too Big to Prosecute?: Examining the AI
    Industry's Mass Ingestion of Copyrighted Works for AI
    Training.'' This is the third hearing of the Senate Judiciary
    Committee's Subcommittee on Crime and Counterterrorism, which I
    am delighted to work on with my colleague, Ranking Member
    Durbin.
        I want to say a special thank you to the witnesses for
    being here. Many of you, I think all of you, traveled in order
    to be here today. Thanks to everybody for accommodating our
    change in time. The Senate floor is going to be tied up here
    later today, and thus, no Committee business is happening, so
    thanks, all of you, for being here and for accommodating us.
        I am going to make just a few opening remarks. Senator
    Durbin will do the same. Then we will swear in the witnesses
    and be off to the races.
        Let me just start by saying that today's hearing is about
    the largest intellectual property theft in American history.
    For all of the talk about artificial intelligence and
    innovation and the future that comes out of Silicon Valley,
    here is the truth that nobody wants to admit. AI companies are
    training their models on stolen material, period. That is just
    the fact of the matter. And we are not talking about these
    companies simply scouring the internet for what is publicly
    available. We are talking about piracy. We are talking about
    theft. For years, AI companies have stolen massive amounts of
    copyrighted material from illegal online repositories.
        Now, the FBI and the Department of Homeland Security
    regularly prosecute individuals who engage in exactly the same
    kind of behavior using platforms like LimeWire or Napster in
    the old days, using a process called torrenting. But have these
    Big Tech companies been prosecuted? No, of course not. They are
    getting off scot-free. And this hearing will show us that Meta
    and Anthropic and other AI companies are willfully using these
    illegal networks, these torrenting networks as they are called,
    to steal vast swaths of copyrighted materials.
        The amount of material that we are talking about is
    absolutely mind-boggling. We are talking about every book and
    every academic article ever written. Let me say that again,
    every book and every article ever written, billions of pages of
    copyrighted works, enough to fill 22 libraries the size of the
    Library of Congress. Think about that, 22 libraries of
    Congresses full of works. That is how much has been stolen.
        And this theft was not some innocent mistake. They knew
    exactly what they were doing. They pirated these materials
    willfully. As the idea of pirating copyrighted works percolated
    through Meta, to take one example, employee after employee
    warned management that what they were doing was illegal. One
    Meta employee told management that, and I quote now, ``This is
    not trivial.'' And he shared an article asking, ``What is the
    probability of getting arrested for using torrents''--illegal
    downloads--``in the United States?
        Another Meta employee shared a different article saying
    that downloading from illegal repositories would ``open Meta up
    to legal ramifications.'' That is a nice way of saying that
    what they were doing was exactly, totally, 100 percent barred
    by copyright law.
        Did Meta management listen? No. They bulldozed straight
    ahead. We will see evidence today that Mark Zuckerberg himself
    approved the decision to use these pirated materials. And then
    the best part, Meta management tried to hide it. They tried to
    hide the fact that they were engaged in the illegal download of
    pirated works, and not just the illegal download, but the
    illegal distribution of these same works. They tried to hide it
    by using non-company servers. They went so far as to train
    their AI model--get this. Meta trained its AI model to lie to
    users about what data it had been trained on. I mean, you talk
    about an inception-level-worthy deception, training the AI
    model to lie about what its own sources were. This isn't just
    aggressive business tactics. This is criminal conduct.
        And I just want to point out, Meta's conduct is not an
    exception. This is the rule when it comes to what is happening
    right now in the AI space among these mega companies. Big Tech
    operates on the model of do whatever you want and count on the
    lobbyists and the lawyers to fix it later. They don't care
    about the rule of law. They don't care about America. They
    don't care about freedom. They certainly don't care about
    working people. They care about power and they care about
    money. And every time they say things like, we can't let China
    beat us, let me just translate that for you. Every time they
    say that, oh, we can't let China beat us, what they are really
    saying is, give us truckloads of cash and let us steal
    everything from you and make billions of dollars on it. That is
    the translation. We are going to see that in the testimony and
    the evidence today.
        Here is the bottom line. We have got to do something to
    protect the people of this country. I am all for innovation,
    but not at the price of illegality. I am all for innovation,
    but not at the price of destroying the intellectual property of
    the average man and woman in this country. We have laws for a
    reason. Those laws ought to be enforced, and Big Tech should
    not be above the law. Enough is enough. It is time to enforce
    the law, and that is what this hearing today is about.
        Now, I will turn it over to Ranking Member Durbin.

             OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Senator Durbin. Thanks, Mr. Chairman.
        The way AI interacts with intellectual property rights,
    particularly copyrights, is a critical topic we can't overlook.
    America's creative industries, including software, music,
    movies, literature, collectively contribute over $1 trillion to
    our economy each year, employing millions of people. While AI
    can be an incredible tool that unlocks further creativity,
    writers, artists, musicians, and others are rightfully
    concerned about what technology would mean to them personally.
    Should AI companies be able to use their materials freely as
    ``fair use'' or should they receive compensation when their
    works are used to train AI models?
        I want to tell you, chapter one, how I discovered
    intellectual property. I was an attorney in Springfield,
    Illinois, and in a rash moment decided to buy a restaurant. So
    I joined a few friends and bought a restaurant, and we had live
    music. And I got a phone call one day from a fellow who said, I
    just was out at your restaurant. I said, great, did you have a
    good time? Couldn't have been better. Saturday night, the music
    was terrific. And I said, well, I am glad you had a good time.
        And he said, you played 10 BMI tunes and six ASCAP tunes. I
    said, no, I didn't, I didn't play any tunes. He said, well, the
    way the law is written, you are responsible for the fact that
    copyright material was used by you to make a profit at your
    restaurant. I said, tell it to the judge. He said, no, before
    you say that, call your friend over in Jacksonville, Illinois,
    a few miles away and ask him about a similar experience. And
    his reaction was the same as yours. I called my friend who
    said, ask him how much money he needs each month for ASCAP and
    BMI, and we started paying it. That was my first course in
    intellectual property. I hold onto it to this day.
        So how can creators compete with AI products that generate
    content at the push of a button, especially when the content
    might mimic or even produce their own work? These are just a
    few of the questions that we are going to consider in this
    hearing as we try to find the right balance between promoting
    technological innovation, protecting the work of our Nation's
    creators, and continuing to incentivize creativity in years to
    come.
        We must recognize that AI innovation and protection of
    intellectual property rights are not mutually exclusive. That
    is why it is troubling, as I listened carefully to the
    Chairman, to hear stories about steps Big Tech companies are
    taking to train their AI models on copyright materials without
    compensation to the creators of these works. For example,
    rather than license authors' works, companies like Meta and
    Anthropic have obtained copyright materials from sites that
    host pirated copies of the authors' books and writings.
    Anthropic pirated over 7 million books from shadow libraries.
    As Anthropic's CEO put it, Anthropic had many places from which
    it could have purchased, but it preferred to steal them to
    avoid ``legal practice business slug,'' whatever that means.
    While Anthropic later became not so gung-ho about training
    their LLM on pirated books for legal reasons, it kept the
    pirated copies that it had already downloaded anyway. I don't
    get that.
        As a judge in the Meta case recently put it, ``Companies
    have been unable to resist the temptation to feed copyright-
    protected materials into their models without getting
    permission from the copyright holders or paying them for the
    right to use their works for this purpose.''
        This hearing is going to be interesting. Thanks, Mr.
    Chairman.
        Chair Hawley. Thank you very much to the Ranking Member.
        It is the practice of the Judiciary Committee and all of
    its Subcommittees to swear in witnesses before they testify, so
    could I ask you to stand up, raise your right hand, and repeat
    after me.
        [Witnesses are sworn in.]
        Chair Hawley. Very good. We will now proceed to opening
    statements. We will give 5 minutes to each witness. I will just
    say a brief word of introduction before each witness. We will
    just go straight down the table here down the dais. We will
    start with Mr. Max Pritt. Mr. Pritt is a partner at Boies
    Schiller, and he represents authors in a civil copyright
    infringement suit against Meta, among other matters.
        Mr. Pritt, the floor is yours.

      STATEMENT OF MAXWELL PRITT, PARTNER, BOIES SCHILLER FLEXNER
                     LLP, SAN FRANCISCO, CALIFORNIA

        Mr. Pritt. Chairman Hawley, Ranking Member Durbin, thank
    you for the invitation and opportunity to testify today. The
    Art of the Deal by Donald Trump, Hillbilly Elegy by J.D. Vance,
    Theodore Roosevelt: Preacher of Righteousness by Josh Hawley,
    these are just a handful of the many, many millions of
    copyrighted books and publications that some of the world's
    largest and wealthiest corporations--Meta, OpenAI, Anthropic,
    and others--knowingly and intentionally pirated from illicit
    online marketplaces for financial gain and to seek a
    competitive advantage in AI.
        Today, this Committee begins to investigate and shine a
    light on what is likely the largest infringement of American
    intellectual property by U.S. companies in our Nation's
    history. As tech companies scrambled to release generative AI
    models and to catch up with OpenAI's ChatGPT, many of them
    turned to illicit online repositories to take tens of millions,
    if not hundreds of millions, of books and scholarly
    publications and articles for free instead of buying them or
    licensing them from copyright owners. By pirating these works,
    AI companies have built a multibillion-dollar industry that is
    projected to be a trillion-dollar industry in the next few
    years without paying a single cent to the authors whose works
    power their products or the publishers responsible for
    introducing those works to the public here and abroad.
        Take Meta, for example. From the early days of its
    generative AI program, Meta concluded that training its models
    using books and articles would help their performance. But
    instead of buying or licensing these works from copyright
    owners, Meta decided to take them from notorious online
    marketplaces of stolen copyrighted works, including some of the
    same ones targeted by the Department of Justice and the FBI for
    criminal copyright infringement. And Meta didn't just download
    books from these illegal repositories. It used the same kind of
    peer-to-peer file-sharing networks that powered Napster. In
    other words, Meta also made copies and sent them to other
    pirates.
        In total, Meta pirated well over 200 terabytes, terabytes
    of pirated books and articles, a size comparable to the entire
    printed collection of the Library of Congress 20 times over, or
    the equivalent of a stack of many billions of pages of text.
    Meta's piracy included many millions of works, including at
    least 12 books authored by Members of this very Subcommittee
    and every U.S. President and Vice President in the 21st
    century. Meta also made and sent copies of over 40 terabytes of
    pirated works to others.
        In doing so, Meta has helped to revive online piracy by
    propping up the foreign criminal syndicates that run these
    illicit marketplaces to violate U.S. copyrights around the
    globe. As Anna's Archive, the largest illicit online
    marketplace of stolen literature in the world today, says on
    its own website, ``Shadow libraries were dying. Then came AI.''
        Meta is not alone, and it was not the first U.S. company to
    engage in rampant domestic piracy for its own commercial
    purposes. Pending lawsuits against OpenAI and Anthropic
    revealed that both companies also pirated millions of
    copyrighted works. And the decisions to engage in this mass
    domestic piracy were made at the highest levels. Company
    documents that are now public show, for example, the decision
    to pirate instead of license was approved by Meta's co-founder
    and CEO, Mark Zuckerberg, himself.
        This decision to engage in mass piracy was made, even
    though key employees knew that doing so was both illegal and
    unethical. One Meta researcher argued that using pirated
    material should be beyond our ethical threshold. Another called
    Meta an accomplice to piracy. Yet another warned that if the
    media got wind of the company's use of pirated data, it could
    undermine Meta's negotiating position with regulators, the very
    people in this room and across the hall, in the White House,
    and in State houses across the country. And when asked if he
    cared whether Meta protects human creativity rather than
    exploits it, Meta's head of AI partnerships testified, he does
    not care.
        AI companies now seek a pass for this unprecedented piracy
    by invoking a limited exception to copyright infringement
    called fair use, which Congress codified in the Copyright Act
    of 1976. They also argue they can't compete with China if they
    can't infringe every American's copyright. Nonsense. Our tech
    companies employ the best and brightest minds in the world, and
    they are the wealthiest corporations in the world. It is not
    credible for these companies to argue they can invest hundreds
    of billions of dollars into hiring talent and building data
    centers to power their commercial AI products and models, but
    they can't pay a single cent to copyright owners. There is no
    carveout in the Copyright Act for AI companies to engage in
    mass digital piracy.
        I am grateful to Chairman Hawley, Ranking Member Durbin,
    and this Subcommittee for your attention to the issue. I look
    forward to your questions.
        [The prepared statement of Mr. Pritt appears as a
    submission for the record.]
        Chair Hawley. Thank you very much.
        Next up is Professor Mike Smith. Professor Smith is
    professor of information technology and marketing at Carnegie
    Mellon University. He has written extensively on piracy and its
    effects on innovation. Professor Smith.

    STATEMENT OF MICHAEL SMITH, PROFESSOR OF INFORMATION TECHNOLOGY
        AND MARKETING, CARNEGIE MELLON UNIVERSITY, PITTSBURGH,
                              PENNSYLVANIA

        Professor Smith. Chairman Hawley, Ranking Member Durbin, I
    am very honored and thankful for the opportunity to testify
    today on this important issue. My testimony today is informed
    by 25 years of empirical research into the impact of new
    technologies on the markets--on the creative markets and my
    experience serving on a roundtable of 10 economists convened by
    the U.S. Copyright Office to study the implications of
    generative AI on copyright policy.
        My research into piracy started in the early 2000's when
    digital piracy was a relatively new problem for the creative
    industries. During that period, many in the tech community
    argued that piracy was fair use because it would not harm legal
    sales, was unlikely to harm creativity, and any legislative
    efforts to curtail piracy would not only be ineffective, but
    would also stifle innovation.
        My empirical research over the past 25 years has studied
    these questions. In 2020, my colleagues and I surveyed over 40
    papers published in peer-reviewed academic journals as part of
    a piracy landscape study we wrote for the U.S. Patent and
    Trademark Office. Our report drew three broad conclusions.
        First, the peer-reviewed academic literature shows that
    digital piracy does harm creators by reducing their ability to
    make money from their creative efforts.
        Second, the peer-reviewed academic literature shows that
    digital piracy does harm society by reducing the economic
    incentives for investment in creative output.
        Third, the peer-reviewed academic literature shows that
    copyright enforcement has been effective in reversing these
    harms while also allowing businesses and legal online
    distribution platforms to thrive and innovate.
        Today, we're hearing many of the same arguments we heard in
    the early days of the internet. Allowing generative AI
    companies to use pirated content to train their models is fair
    use because it won't harm legal sales, won't harm creativity,
    and any enforcement efforts to curtail the use of pirated
    material for training will not only be ineffective, but will
    also stifle innovation.
        My response to those arguments is that while the time has
    changed, the underlying economic principles are the same today
    as they were in 2000. And by applying those principles, I think
    we can draw many of the same conclusions.
        First, the use of pirated content to train generative AI
    models will harm sales for creators. Allowing generative AI
    companies to train their models with pirated content is likely
    to harm markets for creators by damaging the original markets
    for their work, by damaging licensing markets for those works,
    and by creating perverse incentives for bad actors to add new
    copyrighted content to pirate networks, in essence, allowing
    generative AI companies to launder licensable content through
    piracy.
        Second, the use of pirated content to train generative AI
    models will harm society by reducing economic incentives for
    creators. This conclusion is similar to the early piracy
    research: Economic incentives drive creative output. But there
    is a new and unique indignity to our current situation. When
    piracy is used to train generative AI models, we're not only
    stealing from creators, we're then using the theft of their
    content to create tools that can flood the market with machine-
    generated output, which in turn will replace many of those
    creators, particularly emerging artists.
        And third, as in the early days of piracy, I believe that
    enforcing copyright law in the context of generative AI
    training can be effective at reversing these harms and can
    create a world where both the creative industries and the
    technology industries are able to thrive. If the Napster and
    Grokster decisions had gone the other way in the early 2000's,
    it is hard to imagine that Spotify and Netflix would exist
    today, and that would be to the detriment of consumers, the
    creative community, and the technology community.
        I think today we have a similar opportunity to create a
    win-win-win for society, creators, and tech firms by making it
    clear that piracy is wrong and that a vibrant technology
    economy depends on a vibrant creative economy. We found a way
    to make licensed streaming and sales channels work for
    consumers, copyright owners, and platforms in the early 2000's.
    We must do the same for generative AI today.
        Generative AI has the potential to benefit industry and
    society in many ways, but achieving that potential will require
    a more robust and transparent partnership between technology
    firms and the creative industries. On our current path, we risk
    killing the goose--or in this case, the authors, musicians,
    coders, and filmmakers--who laid the golden eggs that are key
    to the present and future value of generative AI output.
        I thank you and look forward to your questions.
        [The prepared statement of Professor Smith appears as a
    submission for the record.]
        Chair Hawley. Thank you very much.
        Next up is Professor Bhamati Viswanathan. Did I get that
    right, Professor? Am I close?
        Professor Viswanathan. Perfect. Thank you.
        Chair Hawley. Okay.
        Professor Viswanathan. Perfect.
        Chair Hawley. Professor Viswanathan is a professor of law
    at New England Law School, and she is an expert in AI and
    copyright. Thank you for being here. The floor is yours,
    Professor.

    STATEMENT OF BHAMATI VISWANATHAN, PROFESSOR OF LAW, NEW ENGLAND
                   LAW SCHOOL, BOSTON, MASSACHUSETTS

        Professor Viswanathan. Chairman Hawley, senior Ranking
    Member Durbin, and Members of this Subcommittee, thank you so
    much. I am honored to testify today on a subject that I feel
    passionate about.
        I feel that Senator Hawley did an excellent job of laying
    the table for us. I would like to drill down on what he's
    presented us with so far and help us walk through this.
        So first, it's an interesting moment that we're at.
    Generative AI is a promising set of technologies, and I think
    we can all agree that they're beneficial. However, the training
    that they're engaging in is deeply problematic and troubling,
    and courts don't know what to do about this yet. They haven't
    reached a consensus on what should obviously be done about the
    training of AI on pirated works. So I would like to give us a
    call for action and a solution as I talk us through this.
        First, we know that what pirate websites are doing is
    illegal. How do we know that? Multiple actions have been
    brought against pirate sites, and in every case, the pirate
    websites or repositories have lost. The FBI, the Department of
    Homeland Security have gone after pirate websites and tried to
    shut them down. Now, of course, we all know this can be like
    whack-a-mole, right? They shut down, they come back up again.
    But the point is it's well-established that what they're doing
    is illegal, and that makes sense.
        If you and I stole books from the library or from a
    bookstore and said, I need to train, I need to learn, I need to
    develop my mind, we wouldn't argue that this is fair use. We'd
    say you can't steal the materials even for a good cause. That's
    not even what's happening here. The AI generative companies are
    going to pirate websites, stealing the materials that have
    already been stolen. It is a crime compounding a crime. How is
    this fair?
        Say you want to go drag racing, an illegal activity. I tell
    you, hey, there's a shop down the street that sells stolen cars
    for cheap. Go buy a car and you can drag race. You go, great,
    that helps me be able to afford what I want to do. You buy a
    stolen car, you drag race, you win. Do you now get to say, hey,
    it's okay that I stole that--I bought that stolen car. It's
    okay that I engaged in illegal activity. Neither activity is
    legal, and one is compounding the other, and that's what's
    happening here. It's simple. It's a crime compounding a crime.
        And it's not a victimless crime. As Professor Smith showed
    us, there are real victims here, the loss of author's
    livelihoods. Mr. Baldacci will be eloquent on this topic, but
    as an author myself, I feel the same. The loss of my livelihood
    not only hurts, but it affects what I have spent my life
    training to do.
        It contravenes copyright laws, basic incentive structure. I
    don't just teach copyright, I teach constitutional law as well.
    This is enshrined in the United States Constitution. The
    Intellectual Property Clause is one of the things that makes
    this country not just great, but robust, powerful, economically
    hugely successful. Over $1 trillion in revenues from the
    creative content industries, this is truly at risk right now,
    this entire incentive structure that was brilliantly thought of
    by our Founders.
        It has negative incentives. If you know that you can go to
    a pirate website and steal things, why would you ever pay for
    anything again? The generative AI companies have shown us the
    way to massive theft, not just by themselves, but by others as
    well. It depreciates the quality and the quantity of works out
    there. The tradeoff of copyright law is you, the copyright
    author, take the risk, and the market rewards you with rewards
    if the marketplace likes what you've done. There is no
    incentive structure anymore. That's been undermined by what's
    happening now.
        And there's a solution. The solution is licensing. It
    already exists, the licensing of works, the fair compensation
    of creators. These are all things that actually exist now. We
    don't even need new legislation in some ways. We might want
    that as well someday, but right now we have a solution. Enforce
    good, standard, accepted, acknowledged licensing practices.
        None of this is to say that we're against innovation. We
    all believe in innovation. We believe that generative AI has
    potential. But you cannot compromise the livelihood of
    creators. You cannot compromise our trove of creative activity
    and our entire world of art and culture and the things that we
    have done that make us most human and that enrich us the most--
    you cannot compromise those simply by saying we need new
    technologies to flourish. What we need is for new technologies
    to flourish fairly, sustainably, in ways that make sense to us
    and that have already been provided for by our Constitution, by
    the U.S. copyright law, by intellectual property law itself.
        It is critical that Congress recognize that this is the
    tradeoff that matters for the livelihoods of everyone whose
    lives right now and well-being are at risk.
        Thank you so much.
        [The prepared statement of Professor Viswanathan appears as
    a submission for the record.]
        Chair Hawley. Thank you very much, Professor.
        Next is Mr. David Baldacci. Mr. Baldacci is one of the
    best-selling authors in America. I don't know how many books he
    has had as the number one New York Times bestseller. I bet he
    knows. Maybe he will tell us. I have read his books. I am
    delighted to have him here today. He is going to tell us about
    AI's impact on authors. Welcome, Mr. Baldacci.

                     STATEMENT OF DAVID BALDACCI,
                 BESTSELLING AUTHOR, RICHMOND, VIRGINIA

        Mr. Baldacci. Thank you. It's a lot, number one, best-
    selling.
        [Laughter.]
        Mr. Baldacci. I'll leave it at that.
        Chairman Hawley, Ranking Member Durbin, Members of the
    Subcommittee, 119 years ago, Mark Twain traveled to D.C. and
    appeared before a Congressional Committee to advocate on behalf
    of copyright--stronger copyright laws. He was the most pirated
    author of his day. I'm pirated all over the world as well. I
    get why that upset him. He thought creative arts was the
    lifeblood of this country, and I agree with him. That was the
    first time at that hearing that he wore his signature white
    suit publicly, and he did so because he thought it represented
    purity of thought and spirit. I don't own a white suit, and
    even if I did, I don't think my wife would have let me wear it
    today, so you just get blue.
        Twain once said that ``Travel is fatal to prejudice,''
    meaning if you meet people where they live, you find out
    they're just like you. I had no chance to leave the segregated
    world of Richmond, Virginia, when I was growing up, but I
    visited the library every week, and I liked to think through
    books. I traveled the world without a plane ticket or a
    passport. And born from my love of reading came my desire to be
    a writer.
        I worked away for decades and getting rejected over and
    over, but I kept going, honing my craft, remaining disciplined,
    taking the rejections head on, and using them as motivation,
    and finally I was successful. And after 60 novels under my
    belt, I work just as hard as I ever have. It's the American
    way. You work hard, you play fair, you stay the course, and
    you'll make it.
        I truly believed that until my son asked ChatGPT to write a
    plot that read like a David Baldacci novel. In about 5 seconds,
    3 pages came out that had elements of pretty much every book
    I'd ever written, including plot lines, twists, character
    names, narrative, the works. That's when I found out that the
    AI community had taken most of my novels without permission and
    fed them into their machine learning system. I truly felt like
    someone had backed up a truck to my imagination and stolen
    everything I'd ever created.
        I'm aware of the argument that what AI did to me and other
    writers is no different than an aspiring writer reading other
    books and learning how to use them in original ways. I can tell
    you from personal experience that is flatly wrong.
        I was once such an aspiring writer. My favorite novelist in
    college was John Irving. I read everything that Irving wrote.
    None of my novels read remotely like a John Irving novel. Why?
    Well, unlike AI, I can't remember every line that Irving wrote,
    every detail about his characters and his plots. The fact is,
    also unlike AI, I read other writers not to copy them or steal
    from them but because I love their stories. I appreciate their
    talent. It's motivated me to up my game.
        What AI does is take what writers produce as an incredibly
    valuable shortcut. It's like super fuel to teach software
    programs what they need to know. And I have learned that these
    trillion-dollar companies didn't even buy my books. They got
    them off a website that has pirated works. They complained that
    it would be far too difficult to license the works from
    individual creators, so apparently, it was more efficient to
    steal it. Trillion-dollar companies with battalions of lawyers
    did not have the resources to do things lawfully.
        I was once a trial lawyer. If I had made that argument in
    court, I would either have been laughed out of the courtroom or
    held in contempt by the judge and rightly so. If AI companies
    only needed words, they could have fed every dictionary in the
    world into their machine learning, but that was not nearly good
    enough because it would mean decades of additional work and
    hundreds of billions of dollars of additional investment. What
    they needed was complete, well-crafted, living, breathing
    stories with characters that seemed real, plots that made
    sense, dialog that appeared genuine, humanity on the page. In
    sum, they needed us and our craft that we learned with the
    sweat of our brows and the flexing of our imaginations.
        And these companies have swooped in, stolen that labor in
    order to make enormous profits. But we, the writers, the true
    source of all of this, will receive nothing. AI will allow
    anyone, with no effort at all, to order up a novel written in
    the vein of an established writer. And that book can be sold
    saying that it reads just like a David Baldacci novel. Yes, it
    does read like my novels because it is my novel. It is my
    imagination.
        People complain about cheap imported goods hurting American
    workers. Well, we have cheap books being created by American
    technology flooding the market. That will mean lower profits
    for publishers and less money to spend on new emerging writers.
    Trust me, that hurts all of us.
        Online vendors now require the author to disclose if a book
    was not human-created. It's getting to the point where they
    will have to limit the number of books that someone can publish
    on a weekly or even daily basis. This is insane.
        Source code and elements of algorithms are also protected
    by copyright. I would hazard to bet that if I stole any of the
    AI community's source codes or algorithms and then tried to
    profit off them, they would unleash a tsunami of lawsuits
    against me. However, if, as AI contends, fair use is actually
    my entire body of work, there is no more copyright protection
    for anyone. I'm sure AI believes that their IP should be fully
    protected against interlopers, and I agree with them. Thus, I
    am deeply disappointed they don't feel the same about people
    like me.
        The AI community apparently is there entitled to steal our
    work product despite it being copyrighted because what they're
    doing is so transformational. Well, let me tell you, billions
    of people have been transformed by books. Many significant
    events in human history and in this country had seminal authors
    in their works that wrote at the head of the pack. We didn't
    truly emerge from the dark ages until the invention of the
    printing press when books became widely available. Books also
    teach empathy, making the world a kinder, gentler, more
    meaningful place.
        I'm only one man, but books transformed my life, propelling
    me to a far better existence. I am sure there are aspects of AI
    that will also transform the world, but if you want to bet on
    which side is more transformational for all of us, I will bet
    on books every single time.
        Thank you.
        [The prepared statement of Mr. Baldacci appears as a
    submission for the record.]
        Chair Hawley. Thank you very much, Mr. Baldacci, very well
    said.
        Next up and finally is Professor Edward Lee. Professor Lee
    is professor of law at Santa Clara University School of Law,
    where he has written extensively about the intersection of AI
    and copyright law.
        Thank you for being here, Professor Lee.

        STATEMENT OF EDWARD LEE, PROFESSOR OF LAW, SANTA CLARA
           UNIVERSITY SCHOOL OF LAW, SANTA CLARA, CALIFORNIA

        Professor Lee. Chair Hawley, Ranking Member Durbin, and
    other Members of the Subcommittee, thank you for this
    opportunity to testify. I am a professor of law at Santa Clara
    University School of Law. I'm also a book author and a
    photographer, and my personal experience informs my scholarship
    and understanding of the importance of copyright to authors and
    artists across the country.
        In my testimony, I will discuss whether using copyrighted
    works to train AI models is a fair use, giving particular
    attention to the two recent decisions by Judges Alsup and
    Chhabria in cases filed by book authors against Anthropic and
    Meta. This novel question of law, which has important
    implications for U.S. national interest, has sparked sharp
    disagreements among parties, stakeholders, and now Federal
    judges. As Judge Bibas noted in an earlier non-generative AI
    case, this question of law is difficult.
        In my opening remarks, I would like to stress three points.
    First, I believe Judges Alsup and Chhabria correctly concluded
    that the use of copies to--the use of copies of works to train
    an AI model serves a highly transformative purpose in
    developing a new technology under factor one of fair use.
    During training, an AI model is exposed to vast training
    materials, typically many millions of works. Through a process
    called deep learning, the model identifies the statistical
    relationships among words and within subparts of words, thereby
    enabling the model to conduct numerous functions, including
    research, translation, delivery of medical advice, generation
    of content, and so forth.
        As Judge Chhabria concluded in his opinion, ``The purpose
    of Meta's copying was to train its large language models, which
    are innovative tools that can be used to generate diverse texts
    and perform a wide range of functions.'' And as Judge Alsup
    recognized, ``The technology at issue was among the most
    transformative many of us will see in our lifetimes.''
        Now, the history of AI development strongly supports this
    conclusion. It is important to understand why AI researchers at
    universities began training AI models on large datasets. This
    practice originated not at AI companies, not at Big Tech, but
    at universities where AI researchers discovered a key insight.
    Scaling or using larger and more diverse datasets actually
    worked in developing and improving AI models, an achievement
    that escaped researchers for many years. This seminal
    breakthrough, which took decades to figure out, has propelled
    the advances of AI that we are witnessing today.
        Second, while I agree with the ultimate findings of fair
    use in both cases, it's important to remember that fair use is
    fact-specific and decided on a case-by-case basis. In some
    cases, a transformative purpose in AI training might be
    outweighed by the other factors. For example, an AI model that
    routinely produces outputs that are infringing, such as
    regurgitations, might not be a fair use even in the training of
    the model due to insufficient guardrails on the model.
        Critically, in the cases against Anthropic and Meta, the
    judges concluded the plaintiffs did not show the models had
    produced any infringing outputs of the plaintiff's works. And
    that can be appealed, but that is the findings of both judges.
        My final point is the need for caution, caution by the
    courts, caution by Congress, and the States. I believe it's
    important to weigh the United States' interest in AI
    innovation. President Trump has issued an executive order
    making U.S. development and global leadership in AI a national
    priority. China has its own priority and a plan of surpassing
    the United States and becoming the world leader in AI by 2030.
    The United States' national priority in AI counsels caution.
        Indeed, in Google v. Oracle, another technology fair use
    case of national importance, the U.S. Supreme Court itself
    cautioned, ``Given the rapidly changing technological,
    economic, and business-related circumstances, we believe we
    should not answer more than is necessary to resolve the
    parties' dispute.'' Judges Alsup and Chhabria departed from
    this approach in some controversial parts of their opinions
    that were just dicta. I disagree with Judge Alsup's suggestion
    on pirated books and Judge Chhabria's suggestion on copyright
    dilution, as more fully elaborated in my written statement.
        At this juncture, I think the best approach is for Congress
    to wait and see how other district courts, the courts of
    appeals, and potentially the U.S. Supreme Court resolves these
    difficult issues, including access to pirated shadow libraries
    in the many pending copyright lawsuits across the country.
        Thank you, Senator.
        [The prepared statement of Professor Lee appears as a
    submission for the record.]
        Chair Hawley. Thank you very much, Professor. Thanks for
    being here. Thanks again to all of our witnesses.
        We are going to now have 7-minute rounds of questioning,
    and we will see if we can fit in maybe a couple of rounds, just
    depending on the time that we have. I will start, and then we
    will go to the Ranking Member and any other Members who arrive
    in that time.
        Professor Viswanathan, let me just start with you, if I
    could, and let's see if we can just drill down on some of the
    specifics here. Mr. Baldacci mentioned in his opening statement
    that AI could just feed dictionaries into their platforms in
    order to train them. They don't do that. They prefer published
    works, fully formed works. Why is that? Can you give us an
    insight into that?
        Professor Viswanathan. That's absolutely right. They learn
    syntax, structure. They learn how we learn language, right?
    When you learn language, you just don't learn words. You don't
    memorize words. You don't memorize notes when you learn music.
    You learn structure and syntax. And the point that Professor
    Lee is making is correct. They need large datasets. More is
    better to learn predictive language models. However, more is
    not everything. It's not pirated works.
        Chair Hawley. So let me just ask this. You said that they
    are not buying the books. They are not buying Mr. Baldacci's
    book or anybody's book who is sitting up here, anybody in the
    audience. They are getting them. They are stealing them. They
    are pirating them from somewhere. If they are not buying the
    books, they are not stealing them out of libraries, where are
    they getting them?
        Professor Viswanathan. These large repositories of
    materials that are available online, there are many. Some are
    licit, some are not licit. The pirate websites in particular
    are not licit. So if you need a lot of material, you go out and
    you scoop up all that material that you can find, but you don't
    go to pirate websites to get that material if what you want to
    do is legal. None of these works are licensed. None of these
    works are licensed. No author has been compensated to date.
        Chair Hawley. They go to these--let's call them shadow
    libraries--to get the works illegally. By the time they go to
    the shadow library, the works there are already stolen, right?
    They have already stolen Mr. Baldacci's book, Professor Lee's
    book, everybody's, your books. They have stolen them. When they
    go to the shadow library, how do they get them? I mean, how
    does the AI company then take possession of the particular
    work?
        Professor Viswanathan. There's a process called torrenting,
    and I will not trouble you all with the details of torrenting,
    but essentially huge amounts of data streamed to you and you
    get them. At the same time, you can send them out. That's
    called seeding. You can send them out at the same time.
    Uploading and downloading exists at the same time. This is a
    peer-to-peer process. So not only are you taking in these
    pirated materials, you are also distributing them. The
    violation of copyright law exists at the reproduction of these
    works, at the making available of them by the pirate libraries,
    the dissemination of them, and your dissemination gen AI
    company of them as well.
        Chair Hawley. So they are both taking the works and
    distributing them as well in this thing called, kind of like
    Napster, this thing that you call torrenting. Let me ask you
    this. I mean, is torrenting legal? That is not legal, is it?
        Professor Viswanathan. Torrenting can be illegal, but in
    this case, it is not. And in this particular case, this is
    benefiting the--now I agree with Judge Alsup who said, if
    you're taking it from pirate libraries, no way. That is not
    acceptable, right? Part of what we're seeing here, Judge
    Chhabria said, well, it's not helping the pirate websites.
    Well, yes, it is. The pirate websites, there's one in
    particular called Anna's Archive. They actually put on their
    website, hey, gen AI companies, come train on us. We'll do some
    data swaps. Or, you know what, you can make us a donation too.
    This is directly helping the pirate websites thrive, flourish,
    proliferate.
        Chair Hawley. Let me ask you this. Have there been, to your
    knowledge, any criminal enforcements against these torrenting
    platforms?
        Professor Viswanathan. Yes, there have been attempts to.
    Again, it's like a game of whack-a-mole. You get one, you knock
    it down, it pops up again in some jurisdiction that you don't
    have control over.
        Chair Hawley. What is the key to criminal enforcement? You
    know, civil versus criminal in this context, when do we have a
    criminal case against torrenting? What is the key to that?
        Professor Viswanathan. Okay. This is a really important
    point. What's criminal here? Criminal copyright liability has
    two prongs to it. Prong one is you have to do it willfully, and
    prong two is you have to do it for commercial advantage or
    gain. We clearly know that prong two is met. This is for
    commercial advantage or gain. I don't think Meta is doing this
    out of the goodness of its heart. Prong one, willful means you
    need to know that what you are doing is illegal. There's lots
    and lots of evidence now, particularly from the Kadrey v. Meta
    case, that shows that they knew this was illegal. They even had
    to ask all the way up the chain of command to Mark Zuckerberg
    and say, hey, is this okay? And he said, yes, it's okay.
        So not only did he do it knowing it was illegal, he did it
    knowingly, he did it willfully, intentionally, and whether or
    not he knew what statute it was legal doesn't matter. For this
    to be willful, you have to know that what you're doing is
    wrong, and this meets that prong. So this is, in fact,
    amounting to what you might call criminal copyright liability.
        Chair Hawley. Mr. Pritt, let me just ask you about this,
    about the willful aspect, and let's talk about Meta in
    particular, since Professor Viswanathan just mentioned Meta.
    They are one of the biggest monopolists in the world and one of
    the biggest AI companies now in the world, if not the biggest.
    So let's just talk about them for a second. Meta uses torrents
    to acquire pirated data for its Llama model, is that right?
        Mr. Pritt. Correct.
        Chair Hawley. How much data would you estimate that Meta
    has torrented? It is illegally downloaded and also then shared
    in this peer-to-peer scheme.
        Mr. Pritt. It has pirated well over 200 terabytes of
    copyrighted material from multiple--I don't call them shadow
    libraries because they're not libraries--but illicit criminal
    enterprises.
        Chair Hawley. And how much has it paid the copyright
    holders for these works that it has used, to your knowledge?
        Mr. Pritt. Nothing.
        Chair Hawley. Nothing, zero. So billions of works, billions
    of books like Mr. Baldacci's, zero payment. If Meta were to
    pay, do you have any idea what the cost might be? I mean, to
    your knowledge and your discovery, did they ever explore
    paying? I mean, is there any sense of how much this might have
    cost them?
        Mr. Pritt. Early on, they explored licensing. They assigned
    two individuals part-time to attempt to license, and they
    decided it would take too long, for example, and that's when
    they turned to piracy. At the time, they had public documents
    show that certainly tens of millions, if not hundreds of
    millions, had been contemplated for licensing at that time.
        Chair Hawley. Okay. So let's just think about this.
    Hundreds of millions of dollars, that is the value, maybe sort
    of the base, the bare value of the works that they have used,
    like the works that you all have written on this panel,
    hundreds of millions, and they paid zero of that.
        So let's just drill down a little further. Did Meta know
    what they were doing was wrong? Do you, Mr. Pritt, believe in
    the evidence you have seen that there is any evidence to
    suggest that Meta's employees knew what they were doing is
    illegal?
        Mr. Pritt. I think the documents that have become public
    clearly show that.
        Chair Hawley. Let's just look at a few of these documents.
    I am going to show you a few things, and I will ask you to help
    me interpret them to make sure that we get them right. Let's
    start here with a Meta employee, a Meta engineer working on
    their AI project, Eleonora Presani. She says, ``I don't think
    we should use pirated material.'' This is in a chat with other
    Meta employees. ``I don't think we should use pirated material.
    I really need to draw a line there.'' She goes on, ``I feel
    that using pirated material should be beyond our ethical
    threshold. Sci-Hub, ResearchGate, LibGen are basically like
    Pirate Bay or something like that. They are distributing
    content that is protected by copyright, and they are infringing
    it.'' How do you read this, Mr. Pritt? Does this look like
    knowledge to you?
        [Poster is displayed.]
        Mr. Pritt. That's certainly what we've argued in the case.
        Chair Hawley. Let's look at another Meta employee. Here is
    Nisha Deo in the same chat. She replies and said, ``It's the
    piracy (and us knowing and being accomplices) that's the
    issue.'' This is a Meta engineer working on their AI project.
    ``It's the piracy (and us knowing and being accomplices) that's
    the issue.''
        [Poster is displayed.]
        Let's look at another one. Here is the response that
    another Meta engineer in the same chat gave. ``Well, we want to
    buy books and be nice, open people here. But, however, to make
    it happen and not letting the bad guys win''--that's the beat-
    China argument--``we need to make a case--fast--and cut some
    corners here and there.'' ``We need to cut some corners here
    and there.'' Mr. Pritt, what are we looking at here? I mean, is
    this knowledge of illegal activity?
        [Poster is displayed.]
        Mr. Pritt. When they refer to bad guys, I think they're
    actually referring to OpenAI and other AI competitors.
        [Laughter.]
        Mr. Pritt. But yes, this is certainly one of the many
    documents that show that they knew these were pirated websites
    that contained copyrighted materials, and they were taking them
    for free.
        Chair Hawley. So here we have it in black and white. Don't
    believe me. Read the evidence. These are Meta's own engineers,
    Meta's own employees saying, they know what they are doing is
    ethically wrong, illegal, likely to subject them to legal
    liability, and they are doing it anyway because they need the
    money.
        There is a lot more here. We will come back to this. I want
    to give Senator Durbin a chance to ask questions. Senator
    Durbin.
        Senator Durbin. Thanks, Mr. Chairman.
        I want to ask startup questions with Mr. Baldacci. A number
    of authors have shared with the public the process they go
    through to write a book. I believe John Irving in The Imaginary
    Girlfriend did that. I think John McPhee has done that in the
    past. Stephen King has done that. Give us a kind of an insight,
    now that you have published successfully in volume, what the
    process is in writing a novel.
        Mr. Baldacci. Well, you know, one, you have to sort of be
    in love with words and storytelling because that is sort of the
    essence of what you're trying to create. You draw upon personal
    experiences, your own curiosities, people you've met along the
    way, things that have happened to you, places you've traveled
    to, humanistic experiences that a software platform really
    can't replicate. And if it ever manages to do it, I would like
    another planet to live on, quite frankly.
        And for me, it was 20 years of hard work learning the craft
    before I ever was published at all. I started writing short
    stories and wrote them for 15 years when I was in college and
    law school and tried to get them published and was not
    successful. But it's a craft that you build over time. And you
    have a lot of frustration, a lot of dips and valleys. Good
    times happen, bad times happen, rejections happen. You learn
    from them, you keep going. And at the end of the day,
    hopefully, you get good enough to where someone who has the
    ability to make your career happen will read your material and
    respond to it, and you can then maybe hopefully write for a
    living. And that's what happened to me after a long period of
    incubation.
        You never really see a lot of young writers--you know,
    you're not going to see a lot of teenage writers making it big
    because writing is about life, and you have to have something
    to sort of write about. And it takes a long time. And that is
    why I felt when my son brought this up where every single one
    of my books was presented to me in an outline in like 3
    seconds, it really felt like I had been robbed of everything my
    entire adult life that I had worked on now was in the
    possession of someone else that someone else I didn't even know
    could then use to write their own books that are actually my
    books. I mean, that's not supposed to happen in this country.
        And that's what was so enraging to me that I--I license my
    work all over the world. I license it for different foreign
    publishers. I license my work for television and movies and all
    types of endeavors. And I am open to any offer. If someone
    comes to me and wants to license my work, I will listen to
    them. If we can negotiate something that's agreeable to both
    parties, I will do it, and they can use my work for the
    parameters that are in the licensing agreement, and life can go
    on and people can be happy.
        But the uncertainty of like stealing stuff from pirated
    sites operated in Russia just so you can gain an advantage and
    you don't really care about what happens to the likes of me and
    other writers coming up--I make a lot of money from my
    publisher, and my publisher has used that money to take risks
    on new writers coming up they ordinarily would not have been
    able to take a risk on. So when you hurt established writers
    like me, you hurt all the other writers coming behind us.
        Senator Durbin. So when you are in the creative process of
    writing novels and other things, are you policing against
    plagiarism?
        Mr. Baldacci. I get--I am pirated a lot, but I never worry
    about that because my ideas are my ideas. And I--nobody has the
    sort of mindset and the experiences that I have, nor do I have
    the mindset and experiences of other people. It is very
    individualized. I never worry about that I'm going to
    inadvertently take something away from another writer because
    my stories are my own.
        And that's why a software platform, the only thing they can
    do is take from what has already been created. They can't
    create anything really on their own. They take my mishmash and
    put it all together and throw it out the other end, but it
    still looks like my stuff because it is my stuff.
        Senator Durbin. Professor Lee, if I understand part of your
    argument here, you were suggesting that this is the age of
    innovation. Deep learning deserves special treatment. We've
    been through this argument in Congress before. Section 230 is a
    good illustration of that. We decided this fledgling industry
    called the internet just may not have a future, better be
    careful, so we exempted them from liability. Is that what you
    are suggesting?
        Professor Lee. Not at all, Senator. My position is that we
    should pay heed to the existing Supreme Court precedence on
    fair use, which repeatedly states that fair use is a flexible
    doctrine decided on a case-by-case manner. And there is a way
    for authors to prove market harm based on a taking or the
    copying of protected elements of their works.
        Judge Alsup said, if the authors show that there is market
    harm based on an output of this model, you could bring another
    case. And that's exactly, I think, the approach to strike the
    correct--as you mentioned earlier at the opening remarks--to
    strike the right balance between protecting copyrighted works
    and authors and protecting innovation. Even just a story in
    Emerson v. Davies recognized that not everything in a book is
    protected by copyright. Authors build on the past books to
    write new books, and that fuels creation.
        And here, the line that Judge Chhabria and Alsup drew in
    terms of non-infringing output--or excuse me, just Judge
    Alsup--there is no copyright claim in the production of non-
    infringing works.
        Senator Durbin. I am sorry to interrupt you, but I only
    have a minute left. It looks to me like you are shifting the
    burden to the author of the creative work when there is an
    assertion of fair use here. So Meta or others can virtually
    steal this creative product of Mr. Baldacci and others, and
    then he has the responsibility of proving that there has been
    an economic loss to him as a result of it?
        Professor Lee. Not at all, Senator. The judges explained in
    their opinions that the--yes, the initial burden for fair use
    is on the defendant, but the defendants in both cases provided
    evidence that there was no output of infringing works. And the
    question then becomes, will the plaintiffs present contrary
    evidence? And neither judge found evidence of outputs that had
    substantially similar copies of the plaintiff's works. So the
    entire----
        Senator Durbin. So, ultimately, the thievery, if you want
    to use that word, of the creative work is for the economic
    benefit of those who are creating the AI, is it not?
        Professor Lee. Not necessarily. I think if the plaintiffs
    are able to prove cognizable market harm from the copying of
    their copyrighted expression, then the fair use argument is
    likely to fail for their training.
        Senator Durbin. I am coming at it from a different angle. I
    am talking to you about why do we have AI? Why are we
    interested in AI? Clearly, it is a commercial purpose, is it
    not?
        Professor Lee. Oh, entirely. For the AI companies, yes.
        Senator Durbin. For the companies. So that they are
    ultimately the winners in this approach that you are taking. We
    assume we are in the world of new innovation here, and there is
    a use of someone else's creative work. The burden is on them to
    prove that they have lost money because of that piracy. But the
    ultimate winner in this is going to be the AI because if they
    escape this responsibility, they can use Mr. Baldacci's product
    and make money off of it.
        Professor Lee. Yes, if the training is considered a fair
    use, the direct benefit would be to the AI companies. I grant
    that. But in terms of the larger national interest, it redounds
    to the benefit of the United States. If we have a priority in
    AI development, and if we are in a competition or arms race
    with China, winning the AI race by United States companies
    benefits the United States, in my view.
        Senator Durbin. And Mr. Baldacci should be prepared to pay
    the price for that, right?
        Professor Lee. Well, I would suggest that if it is so easy
    to generate copies of Mr. Baldacci's novels or any other
    authors, that should go in the complaint in these lawsuits. And
    some of the lawsuits do allege infringing outputs. So those are
    yet to be resolved. But my ultimate position is that we should
    not throw out the window the established Supreme Court
    precedence on how to apply fair use. It is case-by-case,
    flexible, and it balances the interests of both sides in terms
    of copyright, as well as innovation.
        Senator Durbin. Thank you.
        Chair Hawley. I just want to followup on this line of
    questioning, Professor Lee. When you say that it would be to
    the benefit of the United States, isn't Mr. Baldacci a citizen
    of the United States?
        Professor Lee. Entirely. I'm not saying that Mr. Baldacci
    does not benefit from the copyright. There is another----
        Chair Hawley. But let's take a different author, Professor
    Viswanathan. She is a citizen of the United States?
        Professor Lee. Yes.
        Chair Hawley. So I am just struggling to understand, when
    you say that the mass theft of their works will benefit the
    United States ultimately, you are saying that the mass theft
    and potential impoverishment of American citizens ultimately
    redounds to the good of America?
        Professor Lee. Not at all, Senator.
        Chair Hawley. I think you are being a little too imprecise,
    right? What you mean to say is it may benefit American
    corporations. It may impoverish American citizens, but it will
    benefit American corporations.
        Professor Lee. Well, Senator, there is a balance to be
    struck and the courts----
        Chair Hawley. Well, indeed, but you are waving the magic
    wand that this will benefit the United States, said we are in
    an arms race with China. I am just trying to drill down on your
    assertion. I think what you are really saying is is that the
    enrichment of certain multinational corporations that are
    incidentally based in the United States taking the works and
    personal property of American citizens is a good thing. That is
    a little bit less clear to me.
        Professor Lee. Well, the way that I view the national
    interest, as stated by President Trump's executive order, is
    that there is a national priority in maintaining the United
    States' dominance and leadership globally in AI. And I would
    defer to the view of the AI czar, David Sacks, who said if
    there is no pathway to fair use in AI training, we will lose
    the race with China.
        Chair Hawley. Well, you think that we should allow an
    unelected AI czar to decide what the rights of American
    citizens are?
        Professor Lee. No, not at all. This is going through the
    courts. I would let the courts decide all of these disputes.
    And there are presently 44 lawsuits around the country, so this
    is not a time for Congress to intervene in terms of deciding
    these very difficult questions.
        Chair Hawley. It just sounds strange to me to say that the
    United States, as a nation, is going to benefit from the mass
    violations of its citizens' rights. I thought what made us a
    nation was our common citizenship, the things that we agree on
    together, the rights that we hold in common. And your argument
    seems to be it is fine to violate those rights en masse if it
    redounds to the benefit of the Nation. I think what you are
    really saying is to the benefit of certain people in the Nation
    and their immediate interests.
        Let me ask you about something else you said, fair use.
        Professor Lee. Can I respond?
        Chair Hawley. Well, just a second. I have limited time
    here. Fair use, you said, is a flexible doctrine. It is an
    equitable doctrine. And these companies aren't exactly coming
    to this with clean hands, are they? They are coming to claiming
    fair use after they have stolen Mr. Baldacci's work. They
    didn't take it from the library. They didn't license it. They
    didn't buy it. They went to a pirated illegal site and took it.
    And now they are coming and claiming the cover of equity. That
    seems kind of strange, doesn't it? Is that how equitable law
    works?
        Professor Lee. That is the very question, the initial
    acquisition, whether that was justified as fair use. And the
    two judges disagreed on how to treat that initial acquisition
    from the shadow libraries. So I think it would be incorrect for
    us to assume that it is necessarily a violation. And the
    Supreme Court in Google v. Oracle had an opportunity to discuss
    or require considerations of bad faith in the fair use
    analysis, and it rejected that opportunity and even cited Judge
    Leval's very influential fair use article saying that fair use
    is not limited to the well-behaved.
        Chair Hawley. Okay.
        Professor Lee. Now----
        Chair Hawley. We appreciate you being here, and thank you.
    You are making these arguments very gamely. That is helpful, I
    think, to have this debate. But I just want to point out that
    there is a lot of hand-waving going on here. Every time we get
    down to the nub of the question, can these giant corporations
    take the copyrighted work of individual citizens, we get
    distracted with, well, it is for the good of the country, maybe
    it is not so bad, we have an arms race on, there is an AI czar.
    Actually, I don't think it is that complicated. I think it is
    pretty simple. I think in America, we have rights. Those rights
    are what protect us. These rights are being violated. And if we
    are going to succeed as a nation and uphold our principles as a
    nation, we better darn well enforce the individual rights on
    which the nation is founded. I mean, it is just a thought.
        Senator Welch, am I catching you off guard?
        Senator Welch. I was kind of enjoying it.
        [Laughter.]
        Chair Hawley. Well, you are welcome to ask questions if you
    would like.
        Senator Welch. I would hate to step on anyone, but
    especially a colleague Senator and the Chair of the Committee,
    you know, mid-expression of righteous outrage and indignation
    with which I am aligned, so thank you very much. Thank you. And
    I appreciate you calling this hearing because this is
    incredibly important.
        You know, Senator Blackburn and I have a bill which is
    called the TRAIN Act, and it is trying to address this question
    of artistic content being used. And, you know, we have got a
    celebrated author here, and it would protect you. But what I
    appreciate about you being here, Mr. Baldacci, is there is a
    lot of folks who are aspiring to be David Baldacci. There are a
    lot of artists aspiring to be a Taylor Swift. And it is the
    folks who have made it that are in a position to advocate. And
    it is not, I don't think, going to benefit you, but it is going
    to benefit artists who have so much to contribute even though
    they are not yet discovered.
        And, you know, this is the reality, and this is where I
    think the Chairman is really right. The AI companies need
    content, so they don't care where it comes from. It is just a
    voracious, insatiable appetite. And they are going to go into
    copyrighted material. We just know that. And to suggest they
    won't I think is naive. And the question and the burden here is
    that is going into copyrighted material. And the artist has the
    right to have that copyright respected.
        The burden is that how do you know they used it? That is
    the whole point of the TRAIN Act where if there is copyright
    infringement, a reasonable assertion of that and suspicion of
    it is going to require disclosure on the part of the AI
    platform.
        So I wanted to ask a little bit about that. And I will
    start with you, Mr. Baldacci. Do you have any suspicion that
    some of your works have been used to train AI systems?
        Mr. Baldacci. I have been told and I have been shown a data
    base, and it's part of the--part of a class-action lawsuit
    against the AI community. And I think they've conceded that
    they've taken at least 44 of my novels and fed them into their
    large language models.
        Senator Welch. I mean, that is astonishing. Literally, you
    have got 44----
        Mr. Baldacci. Well, at least they didn't take them all, so
    that was nice.
        [Laughter.]
        Senator Welch. Just wait.
        [Laughter.]
        Mr. Baldacci. I know.
        Senator Welch. And so you don't know for sure, and the only
    way you are going to find out is hopefully through this class-
    action litigation that you are part of.
        Mr. Baldacci. Well, I certainly learned that when my son
    put in ChatGPT that ChatGPT was intimately familiar with my
    entire body of work because it was able to throw out, you know,
    plotlines that took from many of my novels, so someone had to
    feed my novels into ChatGPT. Otherwise, it could not have
    created that response.
        Senator Welch. And we just can't allow that. You know, that
    is just really wrong. Thank you. So we are in agreement here
    that we need some reforms here to protect the artist.
        Mr. Smith, you know, music, it is the same situation. And,
    you know, our music industry is so important. Using the word
    industry is wrong. Music is so important. It really helps
    people get a sense of who they are, it helps people connect,
    and it is across political divisions. That is what is one of
    the inspiring things about the incredible contributions that
    musicians provide to our society. And can you just explain what
    the dangers are of allowing AI models to freely train off
    copyrighted works?
        Professor Smith. Sure. There are multiple dangers. What we
    have seen in the early piracy research is that Article I,
    Section 8, Clause 8 is actually a really good idea. Giving
    artists incentives to create actually yields more creation. And
    when artists' incomes are lowered through piracy, they have
    lower incentives to create. I think we see the same thing here,
    both directly by participating in these pirated networks, the
    generative AI companies are making it easier for other people
    to steal. But then indirectly, they're also making it harder
    for licenses to be signed. Mr. Baldacci talks about signing
    licenses, but when you sign a license with a generative AI
    company, you're signing with a gun held to your head because
    they can say, either sign what I'm offering or I'm going to go
    steal it instead.
        Senator Welch. Well, that is the adhesion contract that
    good lawyers like Senator Hawley still remember from law school
    days. No, but explain that a little bit more because, you know,
    this is where I think all of us have some real appreciation for
    young artists. They have a vision that there is something
    inside them that they can express and that it will make a
    difference to people who hear it or people who read it. And
    they start out against their parents' will most of the time,
    right, because it is not an income-producing, promising career,
    and a lot of them don't succeed, commercial success. But they
    actually are contributing in a local community to a sense that
    helps develop our culture and helps create respect for the
    creative process and helps create respect that there are other
    things than the career path that some of us up here have
    followed where you can make a real contribution and a
    meaningful contribution.
        So this is the concern I have about how this AI and the
    grabbing is going to make it tougher for those folks against
    great odds to keep at it. So maybe you could just, from your
    experience, talk a little bit about how it would adversely
    impact any chance they have of being able to pay their bills at
    the end of the month while they are trying to create
    inspirational music for the benefit of all of us.
        Professor Smith. Yes, I deeply share that concern, Senator,
    and it's based on peer-reviewed academic research showing that
    creative output goes down when piracy is allowed to flourish. I
    worry that the future David Baldaccis of the world won't get
    through that hump, and we won't get to appreciate their
    creative output if we allow piracy to continue to be used to
    train these generative AI models.
        Senator Welch. Well, thank you. My time is just about up,
    but I just want to express my gratitude to each of the
    witnesses. I didn't have a chance to speak with you, but I
    think this is an extraordinarily important issue.
        I yield back.
        Chair Hawley. Thank you, Senator Welch. Senator Durbin.
        Senator Durbin. Mr. Pritt, you represent plaintiffs in a
    lawsuit against Meta that alleges copyright infringement of the
    plaintiffs' authors' works. Do you have any idea how much Meta
    as a company is valued?
        Mr. Pritt. That's a good question. Many trillions, I
    believe.
        Senator Durbin. Did Meta compensate any of the copyright
    owners in your case for the use of their works?
        Mr. Pritt. No, but Meta did spend money on contributing its
    processing power to pirate from illicit websites and also to
    pay Amazon to host pirated data.
        Senator Durbin. Which, of course, did not inure to the
    benefit of your plaintiffs.
        Mr. Pritt. Certainly not.
        Senator Durbin. How does the downloading and uploading of
    pirated copyright material impact the analysis of whether a
    copyright infringement could meet the mens rea requirement or
    willfulness necessary for criminal infringement?
        Mr. Pritt. I would let the professors answer that question.
    Certainly as to willfulness in the civil copyright context, as
    the documents Senator Hawley showed, I think the answer is
    clear, that the piracy committed by Meta was knowing and
    intentional.
        Senator Durbin. Anyone else want to comment on that? Mr.
    Lee, Dr. Lee?
        Professor Lee. Yes, thank you, Senator. The standard of
    willfulness for criminal copyright infringement requires
    knowledge that it is illegal to engage in that particular
    copying. Now, I don't want to relitigate what Judge Chhabria
    has already ruled on, but he was given all of this evidence
    that was submitted by Mr. Pritt and his colleagues. He saw the
    comments by engineers, but he also saw comments and analysis by
    lawyers of Meta advising them on whether this was permitted or
    not under fair use law. And Judge Chhabria made a
    determination. The crime fraud exception simply didn't apply.
        And I'm not privy to all of the analysis that Judge
    Chhabria made, but I'm assuming it was based on the question
    not being resolved, the legal question of whether accessing or
    copying from a pirated website to serve a highly transformative
    purpose is the very question raised in the lawsuit. There was
    no prior precedent that has so held that it is piracy or
    illegal, let alone criminal infringement, to do that. And that
    is the very question that Judge Chhabria ruled on. And to
    assume that it is piracy is begging the question--with all due
    respect, it is begging the question that the courts are the
    appropriate determiners of.
        And that can be appealed, you know, and I am sure it will
    be appealed, but here the question of whether acquiring for a
    putative fair use purpose is unlawful, Judge Chhabria ruled it
    was not. It was for the fair use purpose of developing the AI
    model. I believe that is supported by the text of Section 107.
        Senator Durbin. So Professor Viswanathan, would you like to
    comment on that?
        Professor Viswanathan. I would, thank you so much. The very
    fact that we're talking about this kind of behavior as to
    whether or not it's criminal, right, the very fact that we're
    here talking about willful, knowing, intentional, massive scale
    training on pirated materials. Let's just step back for a
    moment from the question of whether it comes under criminal
    copyright infringement. Does it come under fair use at all? Is
    this what fair use was developed to be? Fair use, for those of
    you who don't take my copyright class, sorry about that, fair
    use is an affirmative defense. Yes, I infringed, but I did it
    for a good reason, a societally beneficial reason.
        All right. Maybe creating a world's repository of
    generative AI companies is that, but it doesn't seem to me that
    it squares with the other things that we think of as fair use.
    What's well-established fair use? Education, criticism,
    commentary, First Amendment purposes that we consider valuable
    and necessary and that are done in good faith. I educate in
    good faith. I don't want to have to clear all those copyrights
    to educate. Okay, great, we allow you to do that.
        That is not what's going on here. I don't want to
    relitigate the cases, Professor Lee, but Judge Chhabria was
    clearly distressed by this. And when he raised the possibility,
    as you rightly say, in dicta, that market dilution might be
    what's happening, he's saying, look, exactly what the Senator
    was talking about, flooding--what Mr. Baldacci was talking
    about, flooding the market with subpar works that substitute
    for the original works. This is not what fair use was intended
    to achieve or to facilitate.
        And the very fact that these companies are arguing we're in
    good faith, we're doing fair use purposes, to me, this
    shouldn't even be a defense that they're allowed to raise. But
    okay, they will raise it, and it will be litigated. But boy, it
    just does not seem consonant with what fair use was ever meant
    to do.
        Senator Durbin. Thank you. Thank you, Mr. Chairman.
        Chair Hawley. Mr. Pritt, if I could just ask you another
    question or two about some of the evidence. We talked about
    Meta engineers saying that they realized what they were doing
    was crossing an ethical line, that they felt they shouldn't be
    doing it, but they had to cut some corners. Let me just ask
    you, did Meta ever try to hide what it was doing? Did it try to
    hide the fact that it was pirating these works?
        Mr. Pritt. What the documents show is that in 2024, when
    Meta began to use Anna's Archive, it decided intentionally to
    not use its own servers and instead to go through Amazon Web
    Services in order to ensure that the seeding, the sharing of
    pirated works would not be traced back to Meta's own IP.
        Chair Hawley. It doesn't sound to me like a company and
    executives that think what they are doing is above board. It
    sounds like a company that thinks that what they are doing is
    probably illegal in some manner, but they want to go on doing
    it anyway.
        Let me just show you a couple of documents, help us
    understand what we are seeing here. These are more Meta
    engineers now, again, working on AI. We have got the first one,
    Nikolay, who says, ``not sure we can use Meta's IPs to load
    through torrents pirate content, haha.''
        [Poster is displayed.]
        [Laughter.]
        Chair Hawley. I emphasize, these are their documents. I
    mean, for all of Professor Lee's--and again, I appreciate
    Professor Lee making these arguments, but for all of Professor
    Lee's comments that we are not sure if it is really pirated or
    not, they thought so. This is Meta. Meta thought so. The next
    employee, ``I'm curious to start looking at some samples, but I
    feel like we should get some clarity on what's allowed and
    how,'' smiling emoji. Nikolay again, ``haha, yes, I think
    torrenting from a corporate laptop doesn't feel right.''
        [Poster is displayed.]
        I mean, what are we looking at here, Mr. Pritt? I mean, is
    this an attempt to be above board and forthcoming, and, you
    know, they think everything's fine?
        Mr. Pritt. I think that is a very difficult conclusion to
    draw from these documents. And with all due respect to
    Professor Lee, as I am still litigating the case against Meta
    on behalf of a group of authors, Judge Chhabria in that case
    specifically declined to decide whether Meta's piracy, what it
    has engaged in, in terms of the downloading, the making
    available, the making additional copies, and then sending those
    copies, over 40 terabytes of data, to other individuals, is in
    fact fair use. And no court, including the Supreme Court, has
    ever held that rank piracy is somehow fair use. And instead,
    the Supreme Court case law, still the law of the land, says
    that fair use presupposes good faith and fair dealing. I will
    leave it to you whether or not you think any of these documents
    shows good faith and fair dealing.
        Chair Hawley. Well, let's just look at one other document
    and ask ourselves if this looks like good faith and fair
    dealing. More Meta employees, more AI engineers. ``Frank, can
    you clarify why we can't use Facebook infra''--internal--``for
    this again?'' Frank Zhang replies, ``avoiding risk of tracing
    back the seeder from a Facebook server.'' And he clarifies,
    ``avoiding risk of tracing back the seeder/downloader are from
    Facebook servers.'' So here we have Meta employees saying they
    know they are pirating, they think it is ethically wrong, they
    think it is illegal, and they are actively avoiding trying to
    create a paper trail. They are trying to hide it. I mean, that
    doesn't sound like fair use to me. Does it sound like fair use
    to you, Professor Lee? I mean, do you think this is fair use?
        [Poster is displayed.]
        Professor Lee. I would just say I agree with Judge
    Chhabria's approach. The distribution claim is still alive in
    the case, and this aspect of the torrenting may well be
    infringement and not fair use.
        Chair Hawley. I will just say this. If this isn't
    infringement, Congress needs to do something. I mean, if the
    answer is that the biggest corporation in the world worth
    trillions of dollars can come take an individual author's work
    like Mr. Baldacci, lie about it, hide it, profit off of it, and
    there is nothing our law does about that, we need to change the
    law. And if nothing else comes out of this hearing today, I
    hope that is it. And I hope that this is motivation to this
    body that we need to be paying attention to what is going on
    here.
        Mr. Baldacci, you said you would rather live on a different
    planet if there was AI that could write your books. I am sure
    that that will never happen. They will never write your books.
    I want to live on a different planet if this can go on and it
    is perfectly legal. We have got to do something about this.
        [Applause.]
        Chair Hawley. Let me just ask you, Mr. Pritt, finally, what
    about Mark Zuckerberg in all of this? I mean, do we think that
    Zuckerberg knew about this, approved this? I mean, what does
    the evidence suggest?
        Mr. Pritt. Certainly, the documents that have become public
    in the case explain that the decision whether or not to use
    Library Genesis, which is a notorious illicit marketplace, for
    example, for actual training as opposed to exploration was
    escalated to Mark Zuckerberg.
        Chair Hawley. I think the judge said something to this
    effect--let's just look here if we have got it--that in fact,
    Zuckerberg was asked about it. There it is. In the spring of
    2023, after failing to acquire licenses and following
    escalation up to Zuckerberg, Meta decided to just use the works
    acquired from a torrenting platform as training data. So they
    just did it anyway. They just, yes, you know, do it anyway.
    Forget it. Don't pay Mr. Baldacci. Don't pay anybody. It costs
    too much. A lot cheaper to take it for free and then make
    billions of dollars off of it.
        [Poster is displayed.]
        Listen, I will just conclude with this. I want to thank all
    the witnesses for their testimony. And Senator Welch, if you
    have more questions, or Senator Durbin, I am happy to let you
    ask those.
        For my part, I just want to say, I think that this is a
    moral issue as much as anything else. I think this is an issue
    about who are we going to be as a country? Are we going to be a
    country, as it is written into our Constitution, where we
    protect the rights of our citizens? It is part of what makes us
    Americans. And we welcome the creative genius of people like
    Mr. Baldacci and the marvelous diversity of imagination and
    viewpoints and perspectives that has come to characterize our
    country. Are we going to protect that? Are we going to allow a
    few mega corporations to vacuum it all up, digest it, and make
    billions of dollars in profits, maybe trillions, and pay nobody
    for it? That is not America. That is not our country. It never
    has been.
        Listen, I am all for the free market. I am glad Mark
    Zuckerberg can make his billions. That is fine. But not by
    running over people like Mr. Baldacci or anybody else or any
    young author who is trying to get a start or any other person,
    creative, noncreative, or just a working guy who puts something
    on Facebook. Why should all his stuff get taken? I just think
    that is wrong. I think it is morally wrong. I think, frankly,
    it is not consonant with our principles as Americans, and I
    think we can and should do better than that.
        Senator Welch, Senator Durbin?
        [No response.]
        Chair Hawley. I want to thank again the witnesses for being
    here. Thanks to each of you. I know you had to travel far for
    this. And thank you again for accommodating our schedule.
    Thanks to everyone who has been here today.
        And with that, we will stand adjourned.
        [Whereupon, at 1:25 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]
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                                A P P E N D I X

    The following submissions are available at:

      https://www.govinfo.gov/content/pkg/CHRG-119shrg61891/pdf/CHRG-
        119shrg
        61891-add1.pdf

    Submitted by Chair Hawley:

     Article III Project, letter......................................     2

     Artificial Intelligence Threatens Ownership of Online Content....     5

     Association of American Publishers (AAP), statement..............    10

     CreativeFuture, letter...........................................    16

     Motion Picture Association (MPA), letter.........................    19

     News Media Alliance, statement...................................    23

     Rumble, statement................................................    28

     Society of Composers & Lyricists (SCL), letter...................    30

    Submitted by Ranking Member Durbin:

     Center for AI and Digital Policy (CAIDP), statement..............    32

     Copyright Alliance, statement....................................    38

     CreativeFuture, letter...........................................    16

     News Media Alliance, statement...................................    23

     Society of Composers & Lyricists (SCL), letter...................    30

    Submitted by Senator Klobuchar:

     Artificial Intelligence Threatens Ownership of Online Content....     5

    Submitted by Senator Coons:

     Motion Picture Association (MPA), letter.........................    19