Journalism Wants Protection. Legal Publishing Wants to Be Read—When It Comes to Fair Use and AI
Reporting from the University of Mississippi’s symposium on ‘Addressing the Impact of Social Media and Artificial Intelligence on Democracy,’ Cameron Larkin of The Daily Mississippian covered remarks by attorney Ian Crosby from Susman Godfrey here in Seattle—lead counsel for The New York Times in its lawsuit against OpenAI—who argued that the doctrine of fair use should protect journalism from being exploited by AI.
The stakes for journalism in the age of AI, per Crosby :
Rights holders like The New York Times want to be fairly compensated for the value that’s being extracted from their works. They also want to have some say in how the products… are deployed… [so] they do not cannibalize the core business that funds the ability to create these works in the first place.
The core concern: journalism is a business model. Articles are the product. And AI may be using that product without permission.
What Is Fair Use?
A legal principle allowing limited use of copyrighted material without permission from the rights holder. It’s a balancing test, guided by four factors:
- Purpose and character of the use (e.g., commercial vs. educational, transformative vs. duplicative)
- Nature of the copyrighted work
- Amount and substantiality of the portion used
- Effect of the use on the market for the original work
In the New York Times case, Crosby argues OpenAI’s use of entire articles to train its models is not transformative and directly impacts the market by reducing the need for subscriptions or original sourcing. He’s arguing The Times is having its product repackaged without consent—and potentially undermined.
If you’re cannibalizing the revenue that creates the original content, the incentives to create the original content are going to be diminished… I think it benefits everybody that there be a fair, rational model by which some of the monetization goes through the creators so that we can have a healthy economy.”
Legal Publishing Is a Different Ballgame
Legal publishing, here referring to blogs, articles, insights, alerts, and newsletters authored by legal professionals is fundamentally different:
- Purpose: Lawyers are not selling access to their writing. They’re publishing to build name recognition, demonstrate expertise, and contribute to the advancement of the law.
- Distribution Goals: Legal professionals want their content shared, cited, linked to—even surfaced in search engines and AI tools. Visibility and building a name are the metrics, not content licensing revenue.
- Business Model: For law firms, the writing is not the business—it’s a form of professional outreach, reputation building, and building legal business.
Legal professionals are giving their work away, because their return is indirect: new clients, referrals, thought leadership, influence.
We see this every day across the LexBlog Network and the Open Legal Blog Archive. Legal professionals aren’t writing to monetize content—they’re writing to contribute something useful. To make the law more understandable. More human. Most would probably welcome the idea of their writing informing an AI model—especially if it helps a business understand their legal risk, or a consumer learn their rights. Even better when the sourced material is attributed to the professional.
This matters under fair use:
- The purpose of the use (educational, public, non-commercial) aligns more closely with permissible fair use.
- There is no harm to the market, because there’s no market for most legal blog or similar content in the traditional licensing sense.
Ian Crosby may be right to advocate for creators whose livelihoods depend on how their content is used. But legal publishers, in the case of blogs, articles, alerts et al. They’re trying to give their content away.