Since the World Wide Web opened to the public in 1993 and Facebook rolled out to college students in 2004 (expanding to the broader public in 2006), the way Americans create, consume, and engage with news and other media has transformed in a short matter of decades. Under the First Amendment, our United States Constitution provides the highest protections to free speech as mediated through print newspapers, magazines, and books, and this degree of protection was extended to include Internet communications through Reno v. ACLU in 1997. So while administrative agencies like the Federal Communications Commission (FCC) control to some degree the content of radio, television, and cable broadcasting, there is no comparable agency* regulating Internet content in the United States. Instead, the Executive and Judicial branches are addressing issues from a reactionary standpoint (which by design, is quite slowly), while technology continues to advance at an ever-faster pace, particularly since the advent of generative artificial intelligence (GenAI).
Although America’s Founding Fathers may never have dreamed of a WWW or the social, political, and economic issues raised by complexities introduced by an increasingly interconnected world, there are some key guidelines and precedents to navigate this territory. Following the U.S. Constitution and law of the land - “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Written in singular balance within the First Amendment, the Government established its contract with the People to speak freely (demonstrating with actions, when desired or necessary), to hold it accountable, and to empower a free press to enforce transparency and accountability on a larger scale. This freedom is further empowered by Constitutional Copyright law in Article I, Section 8, Clause 8 that holds: “Congress shall have Power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Since 1790, Congress has adopted copyright statutes - originally modeled after British law continuing through to our current Copyright Act of 1976 that was internationally harmonized when the U.S. joined the Berne Convention in 1988 (Calvert, 2020). Together, we may look no further than the United States Constitution to interpret appropriate application of GenAI, especially in the sphere of news media, where impact to free speech is of the greatest consequence to the integrity and survival of American democracy.
In regards to American copyright law, Justice Oliver Wendell Holmes stated in Bleistein v. Donaldson Lithographing Co. "it would be a dangerous undertaking for persons trained only [in] law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits” (Calvert, 2020). This important precedent set by Holmes in 1903 allows judicial review to focus exclusively on the legal application of copyrighted content and fair use without regard for aesthetic qualities that could otherwise censor content based on individual (or - may be argued, political) preferences. The precedent has been upheld in recent high-profile cases involving fair use (under copyright law) and AI, providing further examples to follow as The New York Times takes on OpenAI (GenAI giant known as ChatGPT, with largest investor Microsoft) in a landmark case** that will likely shape the landscape of AI development, and possibly the regulatory environment for Internet within the U.S. (Allyn, 2025).
As I write and cite this paper, I credit authors whose copyrighted work was essential in providing background to these ideas, both honoring the original source and providing legitimacy for my new work. This is the foundation of copyright law, but not its entirety. Current copyright law gives to the author (or the owner of the copyright) the sole and exclusive right to reproduce the copyrighted work in any form for any reason, including the specific rights to 1) reproduce the work, 2) prepare/create derivative works, 3) publicly distribute the work, 4) publicly perform the work, 5) publicly display the work, 6) publicly perform a digital sound recording (Calvert, 2020). Under these rights with Constitutional origin, consent of the copyright owner must be sought before an original work is reproduced, broadcast, or displayed (including on Internet forums) with exceptions for fair use.
The U.S. Supreme Court evaluated fair use in Google v. Oracle in 2021 when Google used ~11,500 lines of Java SE script for their new Android software platform. While the Court found that Java’s script was copyrightable, they also assessed that “computer programs differ to some extent from many other copyrightable works because computer programs always serve a functional purpose” (Google, 2021). The Court ruled in favor of Google, whose new Android software program (using ~0.4% of Java SE script from their Application Programming Interface/API tool) was found to be fair use by all four criteria - as in limited utilization (compared to total available API content) of original work was transformed to create an entirely new product that did not serve as a substitute for the original work, but in fact could benefit the original copyright holder (by finding a new application for their work). This precedent is critical when looking towards utilization of copyrighted work in training and creating new works with GenAI - where fair use may apply or fail, based on current technological developments.
To evaluate fair use for GenAI under copyright law, it’s critical to understand how Large Language Models (LLMs) like ChatGPT function. The latest models of GPT are trained on exceptionally large datasets “the equivalent of a Microsoft Word document that is over 3.7 billion pages long” (Pope, 2024). As for its inputs, 100% of copyrighted work (when used) would be included. Outputs are more difficult to identify with current technology***, as the “‘natural-language’ response produced upon user query” may sometimes include “‘memorized’ parts of source works included in training [or input] data” producing “near-verbatim reproductions” (Pope, 2024).
This leads to the final problem of addressing impact - whether LLM outputs like ChatGPT create a “rival with competing information” that ultimately displaces original source content - the claim made by the NYT in the recent case against Microsoft (Allyn, 2025). This may be the most important consideration, albeit the most challenging to assess, as economic reactions take time. If history has borne witness in how Facebook revolutionized social interactions, how Netflix and YouTube transformed consumption of videos, or how Google became a verb, we may be weary of allowing LLMs run unchecked by the same copyright law and fair use standards that protect and preserve creators, including America’s free press.
As to what the future of GenAI looks like, “other publishers including Associated Press, News Corp., and Vox Media have reached content-sharing deals with OpenAI,” but consent to copyrighted work (as inputs) does not address several other concerns with LLM outputs raised by the Times case (Allyn, 2025). The stakes are much higher than simple copyright law when inextricably tied to the First Amendment, so the New York Times will likely set a landmark precedent all its own. Meanwhile, the U.S. is a member of the Organization for Economic Cooperation and Development (OECD), an international body that includes a published “AI Policy Observatory” that provides insight to “AI policy initiatives across 60 participating countries & territories” (Vulcano, 2025). Within the OECD dashboards, Ernst & Young have observed several global trends in AI regulations, with the EU Artificial Intelligence Act (passed in 2024) as the “first major contributor to general AI regulation” (Vulcano, 2025). The EU regulation classifies AI into four categories - minimal risk, limited risk, high-risk, and unacceptable, providing examples and of each and varying degrees of legal obligations.
Because the Internet, by its very nature, is a place of broad exchange, it behooves the U.S. to seek alignment with international bodies when forming localized regulations. With high-stakes for innovation and constitutional protections, a balanced approach might involve creating a regulatory agency (comparable to the FCC) structured like the EU AI Act’s two-armed “scientific panel of independent experts” and enforcement office (Vulcano, 2025). According to Ernst & Young, many jurisdictions are using “regulatory sandboxes as a tool for the private sector to collaborate with policymakers to develop not only safe and ethical AI systems, but also rules that will support the future development of such systems” (Vulcano, 2025). By providing a framework of lower-to higher-risk AI systems, varying degrees of oversight and penalties could be assessed, with a focus on mitigating bias through routine audit of AI models, thorough testing, validation, and fallback requirements, transparency in AI modeling, informed consent from users with regard to data collection, and strict adherence to data privacy and encryption requirements (Vulcano, 2025).
With endless possibilities for AI and the risks to intellectual property, personal data security, and most importantly, democracy itself; there remains far too much at stake to allow progress to continue unchecked without some regulatory guardrails. The most pressing question, however; while the Times and Microsoft continue gathering evidence, is whether technology will evolve faster than regulations required to censor any more ‘progress’ along with its unforeseen or unintended consequences.
ORIGINAL WORK DE FACTO COPYRIGHTED BY HYPE GIRL MEDIA; EDITORIAL REFLECTS NON-PEER REVIEWED OPINION OF ITS AUTHOR - SOURCES BELOW
*While the FCC has established some regulations applicable to the Internet, the agency regulates interstate and international communications by radio, television, wire, satellite and cable.’
**Suggested prompt for ChatGPT (or similar - LLM comparisons could be exciting!) - “Please provide status update on New York Times vs. OpenAI case”
***Enterprise versions of LLMs may provide more secure alternatives when handling copyrighted material and other information protected by regulations such as HIPAA, etc. A recent prompt run in ChatGPT did provide websites as sources for response, signaling developments since this paper was originally written.
Bibliography
Allyn, Bobby. (2025, January 14). ‘The New York Times’ takes OpenAI to court. ChatGPT’s future could be on the line. NPR.
https://www.npr.org/2025/01/14/nx-s1-5258952/new-york-times-openai-microsoft
Calvert, C., Kozlowski, D. V., & Silver, D. (2020). Mass Media Law. McGraw Hill, LLC. Google LLC. v. Oracle America Inc. 18-956. (2021).
https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf
New York Times Company v. Microsoft Corporation, OpenAI, Inc., OpenAI LP, OpenAI GP, LLC, OpenAI LLC, OpenAI OPCO LLC, OpenAI Global LLC, OAI Corporation, LLC, and OpenAI Holdings, LLC. U.S. Filed 27DEC2023
https://www.courtlistener.com/docket/68117049/the-new-york-times-company-v-microsoft-corporation/?page=1
Pope, Audrey. (2024, April 10). NYT v. OpenAI: The Times’s About-Face. Harvard Law Review. https://harvardlawreview.org/blog/2024/04/nyt-v-openai-the-timess-about-face/
Vulcano, David. (2025). Responsible Oversight of Artificial Intelligence for Clinical Research Professionals. Association of Clinical Research Professionals.
https://acrpnet.org/wp-content/uploads/2025/01/Responsible-Oversight-of-AI-ACRP.pdf