Policy / Legal, Regulatory and Legislative News Impacting Digital Content

When it comes to AI negotiations, publishers are stronger together

April 24, 2025 Paul Bannister, Chief Strategy Officer – Raptive

By now, we are all painfully familiar with the way AI systems are reshaping how audiences discover and consume information—often at publishers’ expense. These powerful technologies reuse publishers’ content, usually without permission or fair compensation, placing growing pressure on publisher revenue and content control. Premium content creators of all sizes face identical risks as AI companies increasingly set the rules.

However, media companies are far from powerless. By taking collective action, the media industry can assert control over how our content is used and ensure our voices are central to shaping AI policies. Several practical pathways exist, including regulatory advocacy, strategic litigation, licensing agreements, and technological measures. The key is that we must work together.

Regulation/policy: defining the rules for AI

Enforceable policy regulations represent a clear line of defense against unauthorized use of content. Currently, ambiguity around “fair use” allows AI companies significant leeway. OpenAI’s CEO, Sam Altman, recently acknowledged this plainly, admitting that restrictions on AI scraping copyrighted material would threaten his company’s existence.

Altman’s candid admission underscores exactly why publishers must engage policymakers immediately. President Donald Trump’s recent executive order, “Removing Barriers to American Leadership in Artificial Intelligence,” explicitly seeks to minimize regulations that might hinder AI companies from pursuing their current path. OpenAI and Google have seized this opportunity to advocate aggressively for fewer copyright restrictions, claiming tight regulations threaten American AI dominance in a geopolitical race with China. Help will not come at the federal level anytime soon.

Several state legislatures are actively addressing AI’s impact on copyright, notably California’s AI Copyright Transparency Act (AB 412) and New York’s Artificial Intelligence Training Data Transparency Act (S6955), both of which mandate transparency from AI developers about copyrighted materials used in training models. These initiatives indicate state-level momentum and promise to set precedents that other states will follow. That said, the most immediate forum for action is likely in the courts.

Courts: establishing clear legal precedent

Legal action is the most promising line of defense and has already proven effective. Recent cases, notably Thomson Reuters v. ROSS Intelligence, represent critical opportunities to establish binding precedents around copyright and AI that can level the playing field.

In February 2025, the U.S. District Court for Delaware ruled decisively in favor of Thomson Reuters, determining that ROSS’s unauthorized use of copyrighted content to train its competing AI product was not protected by fair use. This is a big win for every publisher because it clarifies what has historically been a vague and uncertain doctrine. Making it stick will require a broader chorus of legal wins, but it’s a start.

Recognizing these stakes, publishers are increasingly acting together in the courts. One example is a joint lawsuit from 14 major media organizations—including Condé Nast, Forbes, and The Atlantic—against AI startup Cohere. Similarly, litigation initiated by The New York Times against OpenAI and Microsoft has been consolidated with cases from the Daily News and the Center for Investigative Reporting, forming the beginnings of a unified front of defense.

The outcomes of these collective efforts matter profoundly. While individual settlements might resolve immediate conflicts, only definitive court rulings can deliver lasting protections. Publishers at every scale share a vital common interest in supporting cases that reinforce strong, enforceable copyright standards for everyone. Everyone.

AI licensing negotiations: balancing opportunity and equity

Licensing agreements offer publishers another critical tool to monetize their content and control AI usage. These deals can deliver revenue and clearly define permissible AI applications, and we’ve seen a string of them recently. Yet licensing strategies carry risks: agreements negotiated by major publishers could inadvertently create a market divided between haves and have-nots. It’s also unclear if any of these deals will have long-term value, as the damage done to publishers will likely be much higher than any small payments from these deals.

Smaller publishers risk marginalization if AI licensing standards and terms are set exclusively by larger publishers. Collective approaches that define fair, equitable standards can help ensure licensing agreements work for the entire publishing ecosystem rather than fragmenting it.

Technological barriers: limitations of blocking AI crawlers

Technological measures, such as blocking AI crawlers from publisher sites, are another avenue. It’s worth pursuing, but we should not look at this as a long-term strategy. AI companies regularly evolve their technologies, circumventing technical barriers almost as quickly as they emerge.

While publishers can (and should) employ these measures strategically, lasting protection depends more heavily on clear regulatory policies, decisive court precedents, and equitable licensing agreements.

Making collaboration count

General calls for industry collaboration frequently fall short, offering little beyond vague ideals. Yet the AI challenge distinctly highlights how all publishers, regardless of size, share identical interests. Whether an independent blogger, a small-town newspaper, or a global publisher, AI-driven content reuse affects everyone similarly. AI does not care how big you are.

We’ve already observed direct negative impacts on publisher traffic from AI-powered overview summaries in search results. These early signs are merely the beginning. The entire digital landscape—search behaviors, traffic patterns, and monetization structures—is changing fundamentally with AI, and fast.

Publishers need support to run a sustainable business. This has compelled Raptive to advocate on the AI issue precisely because we recognize it is existential to the viability of independent publishing–and the power of strength in numbers. We have invited publishers with whom we work to sign a new agreement that lets us represent their interests in conversations with tech platforms around AI negotiations.

All premium content creators—those supplying the original, authentic content powering the internet—share a truly common interest. Now is the moment to advocate for it; we’ll be stronger if we do it together.

A golden light bulb leaning against a copyright symbol to show how copyright protection supports AI innovation

Copyright and AI: a win win

March 20, 2025 Chris Pedigo, SVP Government Affairs – DCN

In terms of public policy debates, Artificial Intelligence continues to be the belle of the ball with nearly every major government courting the industry to locate their investments and jobs within their jurisdictions. Europe, China, Korea, and the U.S. (among others) have laid out competing tax and government spending plans to entice and encourage AI companies. Against this backdrop of AI frenzy, President Donald Trump, via the Office of Science Technology and Policy, has solicited input on the formation of an “AI Action Plan” in order to “define the priority policy actions needed to sustain and enhance America’s AI dominance.”

Unsurprisingly and unabashedly, tech companies advocate that the U.S. government allow their content-generating AI models to train on copyrighted material without consent or compensation. However, as DCN noted in our comments regarding the action plan, a key component to achieving the stated goal of enhancing America’s AI dominance – and the broader success of American businesses – is the robust protection and enforcement of U.S. intellectual property law including the Copyright Act.

Copyright protection makes legal, and financial, sense

The longstanding legal rights for copyright holders are derived from the U.S. Constitution (Article I, section 8, clause 8), which affords them the opportunity to monetize the results of their hard work and investment in a variety of ways and incentivizes them to reinvest in the creation of additional content and new innovative delivery mechanisms to potential consumers. As a result of these longstanding rights, American content creators, including news organizations and other publishers, are able to contribute significantly to U.S. economic growth, including through employment, exports and important trade surplus, and digital services and goods.

According to a recent study, copyright-based industries accounted for 12.31% of the U.S. economy and 63.13% of the U.S. digital economy. From 2020 to 2023, these industries outpaced U.S. economic growth almost threefold. In the digital sector alone, copyright-based industries employ 56.6% of all employees in the digital sector. The annual compensation paid to core copyright workers is approximately 50% higher than the average U.S. annual wage. As for the global impact, the sales of select U.S. copyrighted products in overseas markets amounted to $272.6 billion, which exceeded the sales of other IP industries including pharmaceuticals, agriculture, and aerospace.

Copyright, competition and a fair market

Unfortunately, the manner in which many AI developers have exploited original content without consent or compensation – to build and operationalize their commercial products – has unjustifiably violated the rights of copyright holders. It has upended the existing balance which has historically sustained and promoted innovation.

AI developers use copyright protected content not only to “teach” their models to predict and mimic language skills, but also as a means to create compelling outputs which have the compounding harm of substituting for the original works on which the models were trained. This activity unfairly competes with those who invested in the creation of the original material and undermines their ability to seek a fair economic return. In fact, U.S. Senior District Judge Beryl Howell noted earlier this week in a copyright case attempting to argue fair use that the publisher’s content is “so valuable they put a copyright on it.” Exactly.

By “reaping that which they do not sow” AI companies cause harm to creators, publishers and the ecosystem as a whole. It is important that this form of destructive misappropriation be deterred, whether by copyright law or other appropriate means. In the U.S, there are 39 related lawsuits and counting. The outcome of these suits will provide much-needed clarity regarding the application of existing copyright law, including the fact-specific defense of fair use, to the infringement of the rights of copyright holders to develop generative AI technology.

However, one U.S. District Court recently confirmed that licensing is required for the use of copyrighted content to train an AI system. In Thomson Reuters Enter. Ctr. GmBH v. Ross Intel. Inc., the court, applying clear and recent precedent from the U.S. Supreme Court, held that the defendant’s unauthorized use of the plaintiff’s works to train the defendant’s AI system was direct infringement and did not constitute fair use. The Court reaffirmed that the impact of the use on existing and potential markets is the single most important element of a fair use analysis, and that there was clearly a potential market to use the materials at issue in the case to train AI.

Innovation flourishes within the copyright framework

Lest the VC crowd be dismayed, a licensing framework is emerging as many deals have been struck by publishers, record labels, motion picture industries, and others. OpenAI, Google, and Perplexity have all made efforts to pay for the right to use protected content to power their models and tools. This is a clear acknowledgment that this model is not only necessary, but eminently feasible.

While publishers’ rights are coming into clearer focus in the U.S., AI companies are beginning to feel a shared pain as evidenced recently by DeepSeek’s R1 model. OpenAI accused the company of IP theft, claiming that DeepSeek may have used OpenAI’s IP and violated its terms of service to develop its AI model.

“We know PRC (China) based companies – and others – are constantly trying to distill the models of leading US AI companies,” OpenAI said in a statement to Bloomberg. “As the leading builder of AI, we engage in countermeasures to protect our IP, including a careful process for which frontier capabilities to include in released models, and believe as we go forward that it is critically important that we are working closely with the US government to best protect the most capable models from efforts by adversaries and competitors to take US technology.”

A rising tide can lift all boats. Only maintaining existing copyright protections will lead to a robust, free market where creators are incentivized to make high quality works and AI companies are incentivized to license them. Importantly, in this robust market, AI companies would continue to have access to quality content which is critical for training and outputs. The American values of IP protection have been a cornerstone in our country’s innovative spirit and competitive edge over foreign adversaries. Protecting IP is a matter of preserving the core principles that distinguish American businesses in the global market. For the history of the U.S., copyright and innovation have gone hand in hand and there is no reason to deviate from that successful combination as we build the next chapter.

Read DCN’s Comments on the AI Action Plan, which were filed with the Office of Science and Technology Policy on March 15, 2025

AI and human playing chess to represent AI licensing negotations

The AI reckoning for publishers and platforms

February 27, 2025 Jason Kint, CEO – DCN

The publishing industry has been of two minds on AI’s rapid advancements – optimistic and cautious – sometimes within the same company walls. Business development teams explore much-needed new revenue opportunities while legal teams work to protect their art and existing rights. However, two major legal developments, the Thomson Reuters v. Ross Intelligence ruling and shocking new revelations in Kadrey v. Meta, expose the fault lines in AI’s unchecked expansion and set the stage for publishers to negotiate fair value for their investments.

One case confirms that publishers have a right to license their content for AI training and that tech advocates’ tortured analysis of fair use doesn’t throw out rights engrained in the U.S. Constitution or require publishers to opt-in to attain them. The other case suggests that Meta may have knowingly pirated books in its high-stakes race to keep up with OpenAI and that Meta’s notorious growth-at-all-cost playbook is more exposed than ever.

AI companies can no longer operate in a legal gray zone, scraping content as if laws don’t apply to them. Courts, lawmakers, researchers and the public are taking notice. For publishers, the priority is clear: AI must respect copyright from the beginning including for training purposes, and the media industry must ensure it plays an active role in shaping AI’s future rather than being exploited by it.

Thomson Reuters v. Ross: A win for AI licensing, a loss for those who intentionally avoid it

In a landmark decision, a federal judge ruled this month in favor of Thomson Reuters against Ross Intelligence, a startup that trained its AI model without rights or permission using the Reuters’ Westlaw legal database.

Judge Stephanos Bibas’ ruling in the Delaware district court is notable because he explicitly recognized the emerging market for licensing AI training data. This undercuts the argument that AI developers can freely use copyrighted works under “fair use” factors. And, consistent with DCN’s policy team, it also highlights the significant importance of the fourth factor of fair use, which publishers have been demonstrating with the signing of each new licensing deal.

For publishers, this is a crucial precedent for two reasons:

AI training is not automatically fair use. Content owners have the right to be paid when their work is being used to train AI.

A market for AI licensing is forming – this is the fourth factor. Publishers should define and monetize it before platforms dictate the terms.

This decision marks a turning point, ensuring that AI development doesn’t come at the expense of the people and companies producing high-quality content. Sam Altman of OpenAI, and other leadership across the powerful AI industry, have attempted to invent a “right to learn” for their machines. That’s an absurd argument on its face but regularly repeated in high-profile interviews, as if the technocrats might will it into reality.

Kadrey v. Meta: Pirated Books, torrenting, and a familiar playbook

While the Reuters ruling validates AI licensing, Kadrey v. Meta reveals how some AI developers have worked to avoid it.

Recently unsealed court documents suggest that Meta employees knowingly pirated books to train LLaMA AI models used as their first commercial version (LLaMA2). Significantly, their fair use analysis shifted from “research” to making bank – a lot of it.

Evidence revealed that demonstrates this knowing strategic shift:

Meta employees downloaded pirated book datasets from a massive, pirated dataset, LibGen, with employees even using torrenting technology to pull it down.

They may have “seeded” and distributed this pirated content to others. That’s a potential violation of criminal code that their own employees shared this, “What is the probability of getting arrested for using torrents in the USA?”.

Meta worried that licensing even one book would weaken its fair use argument, so it didn’t license any at all.

Some employees explicitly avoided normal approval processes to keep leadership from having to formally sign off.

Some documents suggest Mark Zuckerberg himself may have been aware of these tactics with documents referencing escalations to “MZ.”

Meta appears to have stopped using this material ahead of LLaMA3, possibly signaling awareness that their actions were legally indefensible.

Making matters worse, Meta’s case is being overseen by Judge Vincent Chhabria in the Northern District of California. This is the same judge who sanctioned Facebook’s lawyers in its massive privacy settlement that led to record-breaking settlements approaching $6 billion with the FTC, SEC and private plaintiffs. In that case, Facebook was accused of stalling, misleading regulators, and withholding evidence related to its user data practices. In other words, Judge Chhabria knows Meta’s playbook: delay, deny, deflect.

Now, Meta faces a crime-fraud doctrine claim. This means that some currently sealed legal advice could be unsealed if it was in furtherance of a crime. If proven, this would not be a simple copyright dispute; it could potentially lead to criminal liability and further regulatory scrutiny. The Court is ordering Meta to unseal more documents this week.

Move fast, break things… again: Meta’s AI strategy mirrors its past scandals

The Kadrey case’s revelations closely resemble Meta’s past data controversies, particularly those that were all put into the basket of Cambridge Analytica. The many ongoing details of the cover up of the scandal are still emerging today. Unfortunately, they were mostly overlooked by the tech press corp who have not been tuned in to these issues for far too long.

For years, Facebook pursued a strategy of aggressive data harvesting to accelerate its growth in mobile where it had risk of being supplanted by new platforms. The company:

Scraped vast amounts of publisher and user data without clear consent.

Shared this data widely with developers in exchange for reciprocal access to their user data – fueling Facebook’s mobile market share grab.

Ultimately settled with regulators for billions after repeated privacy violations.

Now, in Kadrey v. Meta, history appears to be repeating itself. Internal documents show that Meta feared OpenAI and needed to accelerate its AI development. Thus, Meta felt pressured to take outsized risks. Meta’s approach to AI training follows a similar pattern:

Acquire the best data – legally or not.

Use it to gain an edge over AI competitors.

Deal with legal and regulatory fallout later, if necessary.

Recently unsealed documents even expose a documented mitigation strategy.

Remove data clearly marked as pirated (but only if it’s in the filename despite letting the coders strip out copyright info in the actual content)

Don’t let anyone know what data sets they’re using (including illegal datasets)

Do whatever possible to suppress prompts that spit out IP violations

Key takeaways for publishers and media companies

The Thomson Reuters and Kadrey cases demonstrate both the risks and the opportunities for publishers in the AI era. Courts are starting to push back on AI’s unlicensed use of copyrighted content. But it’s up to the publishing industry to define what comes next.

Here are the big issues we must address:

AI models need high-quality data. And publishers must ensure they’re compensated for it. The Reuters ruling proves that a growing licensing market for AI exists.

Litigation is working. The unsealed evidence in the Kadrey case suggests that even AI giants like Meta know they’ve crossed legal lines. Facebook isn’t dumb, evidence from other peer companies may be even more damaging. The plural press needs to be shining the light on these wrongs as national security isn’t an excuse for AI companies to break copyright law.

Publishers must be proactive in shaping AI policy. Big Tech will push its own narrative. Meta and Google pay front groups like Chamber of Progress to stretch the meaning of fair use both in the U.S. and across the pond. Media companies must work together to establish AI licensing frameworks and legal protections and reinforce existing copyright law.

Regulatory scrutiny on AI will intensify. If Meta is found to have used pirated data, it will accelerate AI regulations. This will not likely be confined to copyright but could extend across tech policy as it did in 2018, when one scandal exposed larger problems leading to Facebook being dragged before parliaments around the globe.

The future of AI depends on trust, ethics and media leadership

The past year has shown that AI is both a disruptor and an opportunity. The Reuters ruling confirmed publishers can and should demand licensing deals. The Meta revelations prove why that’s so necessary.

AI is reshaping media, but it must be built ethically. The publishing industry has both the legal and ethical high ground. And media companies must use it to define the next phase of AI’s evolution. The future of AI isn’t just about innovation. It’s about who controls the data and the IP – and whether the people who create it are respected or exploited.

Policy

The free speech era: tech policy in the Trump administration

February 10, 2025 Adriana Santoni Vicens, Associate – DGA

As frigid temperatures drove the Presidential inauguration indoors for the first time in 40 years, President Donald Trump once again took office surrounded by a who’s who of U.S. technology leaders. Even amidst the pomp and circumstance of this quadrennial event, few elements were as discussed and scrutinized as the presence of Big Tech’s most prominent leaders.

And yet, their presence and prominence should be of little surprise, given the level of scrutiny companies such as Meta, Google, Apple, and Amazon are facing from governments across the world, and how much they stand to gain or lose from developing close relationships with political leaders.

These companies, likely because of this scrutiny and the opportunities granted by a change in administration, are in the midst of significant policy restructurings aimed at better positioning themselves for the political realities of a second Trump administration. Most notably, Meta CEO Marck Zuckerberg announced days before the inauguration that the company was to “return” to a “fundamental commitment to free expression” by ending their third-party fact checking program and moving towards a community notes model.

Free speech will undoubtedly be the cornerstone of technology policy in the second Trump Administration and companies are certainly wise to publicly align themselves with this ideal. For media executives and content creators, this means ensuring that advocacy narratives both respond to the administration’s free speech concerns and respond to the free speech arguments promoted by Big Tech.

Executive action

On January 23, President Trump signed an executive order stating that the country must “develop AI systems that are free from ideological bias or engineered social agendas.” The President also stated that this executive order “clears a path for the United States to act decisively to retain leadership in AI, rooted in free speech and human flourishing.”

Although these actions are clearly focused on affirming the administration’s ideological stances and distancing the administration from its predecessor, using AI to profess broader policy positions was first done by the Biden administration. As the American public gained awareness of the promise and peril of AI in 2022, then-President Joe Biden unveiled an AI “Bill of Rights” which included protection from discrimination and bias as one of its key principles. Such language carried on to the now revoked Biden-era AI executive order.

Given the prominence of AI in the national discourse, it is logical that President Biden, and now President Trump, would utilize AI policy to assert ideological stances. While AI policy during the Biden administration was focused on combating AI-enabled discrimination against protected classes, the Trump administration is focused on the protection of free speech and combatting censorship.

Policy and power players

In the same way that Meta and Google have embraced policies that adjust to political realities, AI companies have begun to do the same. On January 13, OpenAI published its “Economic Blueprint.” The policy document is meant to present a framework that champions the “individual freedoms at the heart of the American innovation ecosystem.”

One of these freedoms, according to OpenAI, is that of “ensuring that AI has the ability to learn from universal, publicly available information, just like humans do.” This purported freedom should raise alarm bells for publishers and content creators. As the media industry continues to fight for the protection of its intellectual property, AI companies have set out to create a “fair use” argument for their past and future transgressions. Their focus on “individual freedoms” is a shrewd approach, and one that is aimed directly at the interests of the administration and its Congressional allies.

Fair use and fair licensing deals

2025 will be decisive year for AI policy that will see the most significant movement thus far for substantial industry regulation. If publishers and content creators are to successfully compete with the policy narratives of major tech companies and AI companies, then they too must embrace a narrative that highlights the threats to free speech and freedom posed by unregulated technologies that can misrepresent or censor political or personal viewpoints.

For example, if publishers and content creators can successfully argue that fair licensing deals will allow AI companies to license unbiased or ideologically diverse content libraries, and thus promote diverse viewpoints and avoid ideological bias, the policies they are advocating for will become more politically salient and will have a higher likelihood of capturing the attention of policymakers and the general public. This new administration is eager to make its mark on AI policy. Publishers and content creators must speak to the free speech priorities that now dominate political discourse, or risk being drowned out by more powerful voices as much-anticipated legislation is finally set in motion.