[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