ARL Public Policy Briefing
July 2025
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Katherine Klosek, Director, Information Policy and Federal Relations, ARL
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The monthly Public Policy Briefing highlights developments in ARL’s public policy priorities, issues that are relevant to the research library community in the United States and Canada, and details on advocacy conducted by ARL and CARL. Please encourage your colleagues to sign up for the Public Policy Briefing.
If you have questions or suggestions, please email me at kklosek@arl.org.
Today, Monday, July 28, at 1:00 p.m. eastern, ARL and Authors Alliance will co-host a webinar about implications for authors and libraries from the recent court decisions on AI and copyright; register and submit your questions for the panelists in advance.
This month, the Library Copyright Alliance (LCA) explained our concerns with the NO FAKES Act in a letter to the US Senate Judiciary Committee, and recommended an amendment to the bill that would protect libraries from inadvertently being subject to liability under the bill. ARL and a growing coalition of library, civil rights and civil society, and journalist organizations sent a letter to members of the House Judiciary Committee, explaining our concerns with the Pro Codes Act and asking them not to support the bill.
The US District Court for the DC Circuit upheld a Digital Millennium Copyright Act (DMCA) exemption for repairing medical devices. In a congressional briefing hosted by Public Knowledge, legal experts examined recent court decisions on the intersection of fair use and AI. The Re:Create Coalition responded to a recent Senate Judiciary Subcommittee hearing on AI training.
ARL joined civil society organizations in advocating to congressional appropriators for full funding for the Library of Congress. And, SPARC asked Congress to reconsider language in federal appropriations bills.
Read on for more details!
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Copyright and Fair Use/Fair Dealing
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Federal Funding for Library Priorities
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Copyright and Fair Use/Fair Dealing
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Library Copyright Alliance Seeks Library and Archives Exemption from NO FAKES Act
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The Library Copyright Alliance (LCA) has called for specific protections for libraries in the reintroduced NO FAKES Act, warning that the legislation could inadvertently expose libraries to liability for user-generated content.
In a letter, the Library Copyright Alliance (LCA) expressed concerns that the NO FAKES Act could place a burden on libraries that provide digital repositories and other online platforms for their users. While the bill is not aimed at libraries, libraries could potentially incur liability under the bill for the distribution of a digital replica uploaded by a user. LCA proposed amendments to the bill that could prevent libraries from being inadvertently swept up within the scope of the bill.
NO FAKES was reintroduced this Congress by Senator Chris Coons (D-DE). It would create a new intellectual property right in digital replicas—or deepfakes—and allow a rightsholder to restrict others from using that content.
Libraries are not alone in raising concerns with NO FAKES. A group of civil society organizations also sent a letter to the Senate Judiciary Committee expressing concerns that the bill could override fair use and other First Amendment–protected online speech. Concerns about liability could lead to censorship of constitutionally protected expression if libraries and other platforms remove content in order to avoid liability under the bill.
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ARL, Growing Coalition Oppose Pro Codes Act
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ARL and a broad coalition of 24 organizations urged Congress to reject the Pro Codes Act, citing significant concerns about the legislation’s potential impact on the public’s access to information.
On July 8, ARL delivered a letter to House Judiciary Committee members, signed by library, civil rights and civil society, and journalist organizations, explaining our unified opposition to the Pro Codes Act and asking them not to support the bill. The letter expresses our widespread concern about the bill’s implications across multiple sectors that rely on access to the law. If Pro Codes were to pass, standards development organizations would have exclusive ownership of elements of the law, and could potentially restrict how others access and use the law.
Pro Codes was re-introduced this Congress by Congressman Darrell Issa (R-CA), chairman of the House Judiciary Subcommittee on Intellectual Property, Artificial Intelligence, and the Courts. After losing on this issue in the courts, standards development organizations are investing heavily in lobbying to change the law.
For more on Pro Codes, see my recent TechDirt article with Garrett Reynolds, c0-founder of UpCodes, “Libraries, Journalists, and Public Interest Groups Oppose Private Control of Law.”
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ARL, Authors Alliance to Host Webinar on AI Copyright Cases
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Today, Monday, July 28 at 1:00 p.m. EDT, copyright experts from ARL and Authors Alliance will host an essential discussion on how recent court decisions are shaping the landscape of AI and copyright law. Register and submit your questions for the panelists. This event is open to the public; please feel free to share with your networks.
In Bartz v. Anthropic and Kadrey v. Meta, the courts ruled that training AI models on copyrighted books is transformative fair use. But in the Kadrey case, the judge indicated he might have drawn a different conclusion if the plaintiffs had presented different evidence. And in the Bartz case, Judge Alsup recently certified a class of the copyright owners of the books Anthropic downloaded from shadow libraries, an activity Alsup had ruled was not fair use. The certification of the class potentially exposes Anthropic to billions of dollars in statutory damages. For more on the cases, please see this summary from last month’s Public Policy Briefing.
In this webinar, you are invited to hear about the nuances of the cases and what these decisions mean for libraries, researchers, and authors from three copyright experts—Jonathan Band, Dave Hansen, and Yuanxiao Xu.
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Legal Experts Examine Intersection of Fair Use and AI in Congressional Briefing
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Public Knowledge held a congressional briefing to examine the evolving intersection of artificial intelligence and copyright law. The panel, featuring Matt Sag, Jennifer Maisal, Nick Garcia, Brandon Butler, and Meredith Rose, discussed three recent court decisions in which courts have addressed whether AI training constitutes fair use.
In the first AI fair use ruling, Thomson Reuters v. Ross, a judge found that a legal research firm training AI systems on legal summaries by a competitor was not fair use, since both companies offered similar legal research tools to the same market. In Kadrey v. Meta and Bartz v. Anthropic—the first cases decided on fair use in the context of generative AI—judges ruled that using book content to train generative AI models is fair use, as discussed in the section above.
Panelists emphasized that the first fair use factor—the purpose and character of the use—is largely a question of whether the use is transformative. A use is likely to be transformative if the copyrighted material is used in a way that is sufficiently different from the original so that it does not substitute for the original work, particularly if the original expression is not communicated to the public by the second use. If the purpose and character are consistent with fair use, courts will evaluate the other fair use factors according to whether the use is consistent with that purpose, and if it harmed the market for rightsholders.
Approximately 40 AI copyright cases are proceeding in district courts, and the fact-specific nature of fair use analysis means different AI applications may receive varying treatment from courts. Issues to watch include how courts interpret the fourth fair use factor, which concerns whether original expression is used in a way that competes with how the copyright holder could have used it in the marketplace; secondary liability questions for AI platforms; liability for downloading pirated books; and the copyrightability of certain inputs.
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Court Upholds Digital Millennium Copyright Act Exemption for Repairing Medical Devices
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Following the 2021 Digital Millennium Copyright Act (DMCA) rulemaking, Medical Imaging & Technology Alliance (MITA) and Advanced Medical Technology Association (AdvaMed) sued the Library of Congress over its rule exempting medical device repair from DMCA anti-circumvention prohibitions. The plaintiffs claimed that the librarian of Congress failed to meet the standards for rule-making under the Administrative Procedures Act (APA) when she granted an exemption for repairing medical devices.
On July 21, the US District Court for the District of Columbia rejected those arguments, and ruled that the Librarian of Congress did satisfy those requirements:
The Librarian’s conclusion that the exempted uses are likely noninfringing, under 17 U.S.C. § 1201(a)(1)(C), is consistent with both the fair use doctrine, codified at § 107, as well as the DMCA, and her analysis in reaching that conclusion is well-reasoned and grounded in record evidence.
ARL will continue to monitor this and other copyright cases.
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Re:Create Coalition Responds to Senate Hearing, Proposed Legislation on AI and Copyright
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On July 16, Senator Josh Hawley (R-MO) held a hearing of the Senate Judiciary Subcommittee on Crime and Counterterrorism, on the use of copyright work in AI training. Senator Hawley and most of the witnesses focused on the issue of generative AI companies training models with pirated content. Professor Edward Lee testified that courts can take a more flexible approach to the issue of pirated books that would not render pirated books “irredeemably” infringing, regardless of the transformative purpose. Lee encouraged Congress to pay attention to Supreme Court precedent on fair use, and recommended that Congress wait to legislate until courts resolve issues at the intersection of copyright and AI.
The Re:Create Coalition issued a statement following the hearing, noting the imbalance of witnesses who favored Senator Hawley’s point of view, and the short shrift paid to the role of US copyright law in enabling competition.
Following the hearing, Hawley and Senator Richard Blumenthal (D-CT) introduced the AI Accountability and Personal Data Protection Act, which would allow individuals and companies to sue if their copyrighted material or personally identifiable information is used to train generative AI systems without their express prior consent.
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Federal Funding for Library Priorities
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ARL Joins Coalition Letter Asking Congress to Preserve Funding for the Library of Congress
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ARL joined American Governance Institute and other government transparency, digital rights, and civil society organizations and individuals in a July 7 letter asking appropriators in the House and Senate to increase total funding for the Legislative Branch, and to preserve funding for the Library of Congress and Government Accountability Office (GAO).
The effort comes as the House advances legislation that would slash Library of Congress funding by 10 percent, undermining the institution’s mission of serving Congress and the American public. Meanwhile, a bill approved by the full Senate Appropriations Committee on July 10 would fund the library at FY 2025 levels.
ARL will continue to engage in the federal appropriations process, and to advocate for research library priorities.
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SPARC Asks Congress to Reconsider Language in Federal Appropriations Bills
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The House Subcommittee on Commerce, Justice, Science, and Related Agencies (CJS) appropriations bill includes language that would prohibit agencies from using federal funds to implement the Office of Science and Technology Policy’s (OSTP) August 25, 2022, memorandum to executive departments and agencies entitled ‘‘Ensuring Free, Immediate, and Equitable Access to Federally Funded Research.”
SPARC sent a letter urging the subcommittee’s leadership to strike the language. In the letter, SPARC explained how the prohibition would “undermine decades of bipartisan progress toward making federally funded research freely accessible to the public that paid for it.” Instead of restricting access, SPARC argues we should “continue working to ensure that taxpayers receive the full benefit of their research investments through policies that promote transparency, accelerate innovation, and provide equitable access to scientific discoveries.”
The House CJS appropriations report included language directing agencies not to invoke the federal purpose license on federally funded research, or to deposit an article in a repository or otherwise engage in public access mandates without the rightsholder’s consent. In response, SPARC sent a letter to the leadership of the House Appropriations Committee explaining that the OSTP memo does not restrict the rights of scientists to publish anywhere they choose, nor does it override existing copyright law. In March 2023, ARL explained that the federal purpose license is consistent with copyright law in comments to the US Office of Management and Budget.
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