The United States told a federal court that training a language model on copyrighted text is fair use

On September 1, 2026 the Department of Justice filed a Statement of Interest in In re: OpenAI, Inc. Copyright Infringement Litigation, the consolidated copyright case in the Southern District of New York. The document runs 20 pages and needed no permission to be filed: 28 U.S.C. § 517 lets the department address the interests of the United States in any pending federal case, with no time limit and no leave of court. Its position is that training a large language model on copyrighted text is fair use.

What the filing actually argues

The government addresses one stage only. A model is built by collecting data, training on that data, and then answering user queries, and the filing says each stage may raise its own copyright question. It takes up the training stage: copying works to feed them to the model as learning material. It says nothing about the collection stage and nothing about what the model produces.

On the first fair-use factor it argues that training is transformative, borrowing the phrasing a California court used in Bartz v. Anthropic. On the fourth factor, the effect on the market, it argues that an analysis built on general market dilution is untethered from the purpose of copyright, and that the public benefits of the training use outweigh any competitive harm. On that point it disagrees with the court in Kadrey.

The economic argument, and its limits

The filing's sharpest claim is about market structure rather than doctrine. If training requires licences, it argues, only the largest technology companies will have the capital to pay for them, and the fees will flow disproportionately to legacy publishers because of the sheer volume of their archives. What it describes as the result is an oligopoly over model training, created by a barrier to entry.

A footnote then takes part of that back. The United States states no position on whether a licensing regime would be financially or logistically feasible, and notes that publishers can sign, and have signed, licensing deals for real-time, paywalled and proprietary access regardless of how the fair-use question is answered. A second footnote records that the government does not contend that any conduct in the litigation was authorized by it or carried out for its benefit.

Three details that get lost in the retelling

The document itself is described inaccurately in several accounts, in ways that change what it is.

• It is a Statement of Interest under 28 U.S.C. § 517, not an amicus brief, and the difference matters: a statement of interest needs no leave of court and has no filing deadline.
• It was signed by Stanley E. Woodward Jr. as Associate Attorney General, Brett Shumate as Assistant Attorney General for the Civil Division, and Senior Counsel Michael Weisbuch.
• It is a party's filing, not a ruling. The court has decided nothing, and the filing itself repeats that fair use turns on the specific facts and the specific use in each case.