Published Fiction at Center of Fair Use Dispute in Anthropic AI Training Lawsuit | HackerNoon

2. THE NATURE OF THE COPYRIGHTED WORK

The second fair use factor is “the nature of the copyrighted work.” 17 U.S.C. § 107(2). This factor “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586. For one thing, less protection is due published works than unpublished ones. For another, less protection is due “factual works than works of fiction or fantasy.” Harper & Row, 471 U.S. at 563. But less protection is not no protection. Even the arrangement of otherwise unprotectable facts surpasses the low bar for a protectable original work of authorship. Google, 804 F.3d at 220.

Here, Anthropic accepts that all of Authors’ books — all published, whether non-fiction or fiction — contained expressive elements (Reply 9). And, as set out above, this order accepts Authors’ view of the evidence that their works were chosen for their expressive qualities in building a central library and then in training specific LLMs (Opp. 11, 17 (citing, e.g., Opp. Exh. 3 at -03433)).

The main function of the second factor is to help assess the other factors: to reveal differences between the nature of the works at issue and the nature of their secondary use (above), and to reveal any relation between the amount and substantiality of each work taken and the secondary use (next). E.g., Campbell, 510 U.S. at 586; Kelly, 336 F.3d at 820; Google, 804 F.3d at 220; HathiTrust, 755 F.3d at 98; Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612–13 (2d Cir. 2006).

The second factor points against fair use for all copies alike.