An overlooked DOJ document argues that copyright suits against AI companies should be widely dismissed.

By Alex Reisner the publisher of , and Strike 3, an adult-film company, may not seem to have much in common. But they all agree on one thing: They want payment for the use of their work in training AI models. In the past year, each of them has brought a lawsuit against the big AI companies, claiming that their content was used to train models without permission.

And they’re not alone. More than 130 lawsuits have been brought against OpenAI, Google, Amazon, Meta, xAI, Perplexity, Nvidia, Suno, and other developers of generative AI over their use of copyrighted work, with some plaintiffs seeking damages in the amount of billions of dollars. Last week, in a lawsuit filed by against OpenAI, documents emerged showing that OpenAI developers had hacked the ’ paywall to download articles. In the same documents, an executive from Microsoft, which at the time had an exclusive partnership with OpenAI, said the operation looked like “an astonishing theft of unprecedented proportions.” Read:

Someone is mysteriously snapping up used books around the world OpenAI and the other AI companies defend their practices by claiming to be making a “fair use” of copyrighted work: Broadly, they claim their models “transform” the work they are trained on, resulting in something new and different from the original. Whatever the outcome of these lawsuits, the rulings may determine how much control creators and publishers have over their intellectual and creative work in the future.

Because these lawsuits feature big names and big numbers, their filings draw widespread media attention. But a potentially significant development went largely unnoticed recently. In early September, the Trump administration asked a judge to rule in favor of the AI companies in more than a dozen of these lawsuits.

The message came from the Department of Justice, which filed a statement of interest, or SOI, that claimed that any ruling in favor of creators would be “erroneous” and “a misunderstanding of fair use doctrine.” Ultimately, DOJ argued that America’s “AI dominance” is a matter of national security, and that no law should impede or delay its development.

DOJ’s statement was so broad that even political allies of the Trump administration were dubious. The conservative attorney and political strategist Mike Davis wrote a Fox News opinion piece in which he called for DOJ to withdraw its SOI. “In a free market, businesses pay for the inputs they need,” Davis wrote. “AI companies can and must do the same.” Over the past two years, the Trump administration has adopted an aggressive pro–tech industry stance on copyright, perhaps influenced by Donald Trump’s former AI czar, the tech investor David Sacks, who has posted on that AI models “would be crippled” if companies have to license training data. Last year, Trump fired the head of the U.S. a report that lightly suggested that AI training might not always be fair use.

Multiple government sources reportedly believed her firing occurred under pressure from the tech industry. (She was reinstated four months later when a federal-appeals court ruled that Trump hadn’t had the authority to fire her.) And earlier this year, the Trump administration restated its pro-fair-use position in an AI-policy framework that said the government believed AI training did not violate copyright law, but that it supported “allowing the Courts to resolve this issue.” The recent SOI indicates that the government may have since decided to take a more active role in resolving the question.

Generally speaking, an SOI is a way for the executive branch of the federal government to influence the judicial branch by advocating for national goals in relation to a lawsuit. The Obama administration used SOIs as part of its campaign to defend civil rights. For example, the Obama DOJ one in 2015 with a court in Boise, Idaho, to dissuade a judge from condoning the arrest of a person sleeping on the street. In 2023, the Biden DOJ an SOI to defend the rights of transgender people who were barred by a new Kentucky law from receiving certain kinds of medical care. Lawyers involved in these cases have noted the extraordinary power of DOJ’s SOIs, which sometimes seem to produce quick and decisive results.

Trump has filed far more executive orders than recent presidents, and his DOJ has filed many SOIs, all of which has raised some concerns. Christine Bartholomew, a law professor at the University of Buffalo, told me that the large number of SOIs and executive orders may jeopardize the ability of the courts to work through cases and “develop responses independently.” Traditionally, SOIs express the executive branch’s point of view on a legal matter—but they can also be used to dictate a certain interpretation of the law. When we have “the Department of Justice saying, Here’s how you should interpret this,” Bartholomew said, “you worry a bit about the separation of power.” DOJ did not respond to a request for comment on its SOI. The statement lacks evidence in support of its biggest claim. It says AI companies should be allowed to use copyrighted books and videos for reasons of national security, because AI can be used for “analyzing intelligence information,” “enhancing weapon systems (such as drones and robotic ships),” and “providing recommendations on the battlefield (such as where to target missile strikes).” Systems classified as “AI” can be used for these things, but it’s unclear how a collection of George Saunders short stories or a Bad Bunny music video would assist in target selection on a battlefield.

Trump has filed far more executive orders than recent presidents, and his DOJ has filed many SOIs, all of which has raised some concerns. Christine Bartholomew, a law professor at the University of Buffalo, told me that the large number of SOIs and executive orders may jeopardize the ability of the courts to work through cases and “develop responses independently.” Traditionally, SOIs express the executive branch’s point of view on a legal matter—but they can also be used to dictate a certain interpretation of the law. When we have “the Department of Justice saying, Here’s how you should interpret this,” Bartholomew said, “you worry a bit about the separation of power.” DOJ did not respond to a request for comment on its SOI. The statement lacks evidence in support of its biggest claim. It says AI companies should be allowed to use copyrighted books and videos for reasons of national security, because AI can be used for “analyzing intelligence information,” “enhancing weapon systems (such as drones and robotic ships),” and “providing recommendations on the battlefield (such as where to target missile strikes).” Systems classified as “AI” can be used for these things, but it’s unclear how a collection of George Saunders short stories or a Bad Bunny music video would assist in target selection on a battlefield.

Making a more relevant point, DOJ also observes that large language models can “help national security officials analyze and draw inferences” from “real-world facts such as those conveyed in New York Times articles.” In other words, they can use ChatGPT for accessing public information, as millions of other people do—a weak case for disregarding copyright law altogether. DOJ provides no evidence of LLMs being more helpful than a Google search, or even a single anecdote in which an LLM gave the military an important insight.

Finally, DOJ’s statement also puts the government in a hypocritical stance on intellectual property. Two months ago, after Anthropic claimed that Chinese AI companies had been training AI models on the outputs of American AI models, U.S. Treasury Secretary Scott Bessent announced that it was “unacceptable” for Chinese AI companies to do this, and called it “IP theft.” The NSA, FBI, and Cybersecurity and Infrastructure Security Agency have also condemned the Chinese AI companies for the same activities. The government’s full line of reasoning is thus: It’s okay for the work of every author and publisher to be used by AI companies freely, but it’s not okay for the work of American AI companies to be used in the same way.

Judges aren’t required to follow the SOI’s recommendations, but they might feel some pressure to do so, especially given Trump’s attempt to impeach a judge last year who ruled against part of his immigration policy, and his general willingness to insult fight the courts. Bartholomew told me the question of how a judge will regard an SOI “becomes much trickier when administrations are willing to call out particular judges or particular decisions that they disagree with.” In the coming months, judges are expected to rule on some of the claims in cases against OpenAI, Stability AI, Nvidia, and other AI companies. These cases include the ones brought by and other news publishers against OpenAI. If the Trump administration and AI companies get their way, these lawsuits could redefine what it means to do creative or intellectual work—and determine how much ownership and control a journalist, a musician, or anyone else has over their work.