[twoodfin]

The Supreme Court declined to hear the case on appeal, which is a shade different from endorsing the decision after a hearing.

That being said, it doesn’t take a lot of effort to differentiate these cases. Google was indexing copyrighted works and providing access to limited extracts. They weren’t transforming them into new works and then selling access to those new works over APIs.

[luma]

OpenAI is also providing access to limited extracts. Google wasn't selling this over an API, they were providing "free" access to it while displaying ads to the user. Would the courts see this manner of monetization to be different enough that settled case law wouldn't apply?

[twoodfin]

OpenAI isn’t doing anything like what Google was doing with Books. It’s not hard for laymen to see that, and it’s going to be obvious to any judge who hears a case.

Imagine OpenAI had invented a software program that turned any written text into an animated cartoon enacting the text. That would obviously be creating a derivative work and outside fair use bounds. That they mix a bunch of works (copyrighted and otherwise) into a piece of software doesn’t allow them to escape that basic analysis.

Google showed a “clip” of the original work, no different in scope than Siskel & Ebert showing a clip of a film as they reviewed it. The uses are not comparable.