On this episode of the Self-Publishing News Podcast, Dan Holloway explains how the Meta ruling favors tech companies but leaves the door open for future cases that could benefit authors. He also covers Cloudflare’s new tool to let publishers charge AI firms for content scraping and reports on a bestselling author’s move to take control of her rights outside traditional publishing.
Listen to the Podcast: Meta Ruling Raises Fair Use Questions
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About the Host
Dan Holloway is a novelist, poet, and spoken word artist. He is the MC of the performance arts show The New Libertines, He competed at the National Poetry Slam final at the Royal Albert Hall. His latest collection, The Transparency of Sutures, is available on Kindle.
Read the Transcripts
Dan Holloway: Hello and welcome to another week's Self-Publishing News.
Another week brings another lawsuit and another ruling in one of the cases that we've been following for some while. Last week, we had a ruling in the Anthropic case.
Disappointing Ruling for Authors in the Meta AI Case
Dan Holloway: This week, we have a ruling in the case brought against Meta.
This of course, is the case that exposed the fact that Meta has been training its AI platforms on books from Library Genesis, the shadow library, which is a repository of pirated books and links to pirated books.
The case, yet again, has caused some mixed reactions in author circles. That's because the ruling has, as with the Anthropic case, I think that the way that people are putting it is, technically it looks as though tech companies have won, but it's not that simple.
The judges in the case have made some interesting rulings, which suggest that there might be a door open for future cases to be brought successfully. Also, the current rulings may well end up in higher courts and therefore might not be the final chapter in this particular story.
So, what has the ruling in this case established?
Well, there has been a ruling on a number of factors. The main one of which is whether fair use, in the case in which it's being argued, has been followed in relation to market dilution. So, this is the principle that this particular case seems to be focused on; has the use of copyrighted material to train an AI system led to a situation in which the value of creative's work will be diluted in the future?
The argument being from the plaintiffs in the case, that if you use AI to create books that are like those that are created by human authors, this will decrease the potential income to those human authors. It will devalue the market for books in general.
The ruling in this case has caused quite a considerable comment because the judge essentially ruled that, as far as I can see it, there may well be market dilution in future, but the way that the case was brought, the actual wording of the case, has not allowed him to make a ruling against the tech companies.
This, it seems, is because the focus of the plaintiffs in the case was on licensing income.
So, the judge has dismissed the idea that the use of copyrighted materials to train Meta's AI platform has led to a situation in which there will be a decreased demand or a decreased potential for licensing income. That seems to be because he is not convinced that the licensing income market is something he can really comment on. It's not a proven market, and therefore there's no proof that the market will be diluted.
The Author's Guild has made some fairly acerbic comments on this. Basically, the tenor of which seems to be that the judge has missed the point of what's actually going on in the current marketplace.
But it does look as though the judge has left the door open for a future case to be brought in which the argument is about the dilution of the market for books themselves because of the increase in AI-generated books.
He has said that this unfortunately, and you get the impression that he wanted to rule in the author's favor, but was saying that they didn't word their case such that he could. So, unfortunately, they weren't really claiming that this was the kind of market dilution that they were looking at in this particular case, but if such a case were to be brought in future and were to show evidence then there may well be a ruling in favor of authors in that case.
There are of course, lots of other cases in the offering, and this provides an opportunity for the plaintiffs of those cases to tailor what they are doing to ensure that they bring a case that the judges will rule that they can win.
That said, as I say, Author's Guild have made it very clear that they feel that there is still very much a case to answer about the market for licensing rights. Of course, one of the things in this case that is being argued, is you're not really opening the door for licensing income if you are using pirated books.
This was another key part of the case, that it matters where the books came from that are being used, and where they came from in this case was a shadow library which uses pirated books.
You'll remember in the Anthropic case, the judge, even though again, not necessarily ruling in favor of the plaintiffs, had very much said that the fact that books from shadow libraries were used was a clear case of piracy. Indeed, we are expecting there to be a ruling on damages at some point in relation to that case.
The judge here, however, has said, that is not necessarily the case. So, basically the ruling was that it doesn't necessarily matter where you get the books from, it matters what you do with them. So, that is the case that the tech companies have been arguing all along and the judge in this case seems to be upholding that.
So, lots of interesting points arising from this. Some really disappointing points in particular around whether or not piracy matters. The one that authors organizations seem to be picking up on most is around the potential for licensing income, and whether there will be less incentive for firms to pay for licensing in future because they know they can just get stuff that's pirated.
That leads to a really interesting further story.
CloudFlare's Pay Per Crawl Feature Allows Content Creators to Charge AI Tech Companies
Dan Holloway: So, if you are arguing that there is no market for licensing, as the judge does in this case, then the next story that I came across makes interesting reading, which is a huge story from the internet in general, and it is about CloudFlare's pay per crawl capability that it launched a week or so ago.
CloudFlare is the service that claims 20% of the internet and many publishers and content producers' sites are run through CloudFlare. CloudFlare has made its default be to block the use of content on its sites for AI training.
It has now introduced a tool that will allow people who use CloudFlare for their websites to decide to charge for AI models to be able to scrape what's on their website, basically.
I say they're calling this pay per crawl. It's launched in beta only at the moment, and publishers seem to have welcomed this. So, companies like Conde Nast, who use CloudFlare. Because it offers a future in which there is the possibility to gain alternative sources of revenue, such as what is essentially a licensing model for AI platforms to scrape their content and use it to train their generative AI models.
This is exactly, it seems to me, the kind of market that the judge in the Meta case might have been saying doesn't exist. So, one of those interesting tensions that we're seeing more and more of as the law slowly starts to catch up, or rather as it seems at the moment, to demonstrate that existing law really can't cope with the pace of technology.
So, you're getting all these seemingly contradictory rulings and findings that, at some point, are going to have to start to merge to form something slightly more seamless.
So, where does this leave authors? It leaves us waiting.
Sarah J. Maas Bypasses Publisher to License Rights
Dan Holloway: But one of the interesting stories this week, the final story I'm going to look at is around an author who is deciding to take things into her own hands, and that is Sarah J. Maas. Maas, of course, author of A Court of Thorns and Roses, and the of the author most credited with launching the romantasy genre, which dominates charts at the moment.
Maas has signed a contract with IMG, the international management group, who are responsible for the rights of all kinds of sports stars, fashion industry people, celebs, it basically handles their rights and the merchandising from their rights. Maas has decided that she wants to make a deal with them to handle the rights to the whole universe, in which, of course, A Court of Thorns and Roses takes place. So, this will lead to merch. It will lead to the possibility of multimedia productions, of her work, things set in her worlds. All of these will now have a negotiated value directly through that contract.
The interesting thing here, of course, is that she has decided to sidestep the publishing business altogether. So, she remains a contracted writer with a publisher, but when it comes to selling many of her rights, she has just decided to go her own way and cut the publisher out, and work directly with anyone who wants to base things on her world.
As publishers struggle to grapple with the legal landscape that is facing them, this seems like an increasingly attractive option for authors who do not want to be left behind and do not want to be left waiting to see how things are going to play out before they start exploiting their rights.
Obviously, she's not like many of us because she, as the press releases say, has sold 70 million books and many of us have not, although many, obviously, in the indie space have sold many millions of books. It's easy to say, oh, this isn't a scalable model. Obviously, many of us couldn't sign with IMG, but it is interesting to see high-profile authors taking things out of their publisher's hands and deciding that it's easier, it's more nimble, and probably more profitable for them to deal directly with the people who want to use their rights.
So, that's a slightly more positive note to end on. I'm sure there'll be more legal wranglings coming up in the coming months.
But whatever is coming up in the following week, I will bring to you when I speak to you at the same time next week. In the meanwhile, thank you very much. I look forward to speaking to you soon.
