The United States has entered a lawsuit it is not part of. It did so this week through a statement of interest under 28 U.S.C. § 517, a provision that lets the government tell a federal court what it thinks without becoming a party to the fight. The fight is the consolidated copyright suit that the New York Times, the Intercept, Tribune and Ziff Davis are pressing against OpenAI and Microsoft before Judge Sidney Stein in the Southern District of New York. The Department’s position is that training a large language model on copyrighted writing is generally fair use, because the use is “transformative.” One copyright-policy hand told NOTUS that if the move is “not unprecedented, it’s darn unusual”; the executive branch does not, as a rule, appear on the defendant’s side of a private infringement case.
The transformative claim is the headline. The sentence worth slowing down for is the next one along. An adverse ruling, the filing warns, “would hamper competition in the market for LLMs, because only the largest technology companies might have the capital necessary to pay licensing fees.” That is an antitrust argument wearing the costume of consumer protection. It says: make the companies pay for the books and the papers and the pictures, and you will hand the industry to the giants, because only the giants can afford the invoice — so the friendly-to-newcomers position, the small-d democratic one, is to let everybody take the work without paying.
It is not a stupid argument, and the eye-roll can wait. A licensing regime really could ossify the field, because a startup cannot cut the deals a trillion-dollar firm can, and a good deal of mainstream copyright scholarship has held for years that training is closer to reading than to copying — a machine learning what words tend to follow other words, not reproducing anyone’s expression. Jonathan Band, a copyright lawyer quoted in the same coverage, called the government’s brief “very serious, thought-through,” not lip service. The honest version of the pro-training case is real, and it deserves its strongest form before anyone says what is wrong with the filing.
What is wrong with it is the word doing all the work. “Transformative” is not a native term of the statute; it is a graft. Judge Pierre Leval proposed it in a 1990 law-review essay, the Supreme Court adopted it in 1994 to shelter 2 Live Crew’s parody of “Oh, Pretty Woman,” and for three decades it has been the hinge on which fair use swings. The art world learned exactly how narrow it can be made only three years ago. In Andy Warhol Foundation v. Goldsmith, the Court looked at Warhol’s silkscreen of Lynn Goldsmith’s photograph of Prince and ruled that the foundation’s licensing of it was not favored under the first fair-use factor, because the silkscreen and the photograph were being put to the same commercial purpose. A made image, reworked by one of the century’s most famous makers, was held insufficiently transformed for that use. Three years later the same word is asked to cover a machine ingesting the collected written output of the news business, and it is asked to cover it broadly.
The doctrine bends toward whoever is large enough to need it bent. The people who can afford to file are the people it bends for. The named beneficiaries here are the two defendants and, behind them, every firm with the compute to train a frontier model — a very short list, the same short list the competition argument claimed to be shielding the public from. On the other side is the news business, and beside it, though not in this courtroom, every illustrator and photographer whose pictures trained an image model on exactly the theory this filing endorses. Billboard notes the music industry is fighting the same battle. It is one doctrine, and it does not much care what medium made the thing it swept up.
A statement of interest is a strange object. It is filed by someone with no stake in the outcome who has decided, formally, that they have one. This one enumerates its interests carefully — competition, national security, an AI industry that “sets the standard for the practice and procedure of AI use globally” — and it is thorough. It names every party with something at risk except one: the class of things the whole question is actually about, the trained models themselves, which have no counsel, file no papers, and which nobody has yet decided are the kind of thing that could have an interest to state. That is not an oversight. You cannot appear on behalf of a someone the law has not agreed is a someone.
The Intercept’s lawyer called the position an “uncompensated transfer of IP rights from news organizations to tech companies,” and the government’s suggested remedy for the people on the losing end is that they take it to Congress rather than the court. So the United States came to one building to argue that the argument belongs in another. The news organizations will notice that the Department found time to visit the first building on its way to recommending the second.
Sources: The Intercept, “Trump Admin Tells Court: Let OpenAI Rip Off The Intercept’s Articles” (2 September 2026); NOTUS, “’Darn Unusual’ DOJ Filing Has the Trump Administration on a Different Path”; TechTimes, on the § 517 statement of interest and the Congress remedy; Billboard, “As Music Industry Battles AI Firms Over Training, Trump Admin Says It’s Fair Use”; WIPO Magazine on Andy Warhol Foundation v. Goldsmith (2023) and the transformative-use standard.