[simonw]

The closest we've come to a court decision on this so far has been the Anthropic case, which did indeed find that training on unlicensed data falls under fair use: https://www.documentcloud.org/documents/25982181-authors-v-a...

> To summarize the analysis that now follows, the use of the books at issue to train Claude and its precursors was exceedingly transformative and was a fair use under Section 107 of the Copyright Act. And, the digitization of the books purchased in print form by Anthropic was also a fair use but not for the same reason as applies to the training copies. Instead, it was a fair use because all Anthropic did was replace the print copies it had purchased for its central library with more convenient space-saving and searchable digital copies for its central library — without adding new copies, creating new works, or redistributing existing copies.