I'm not so sure. imo it would be a stretch to suggest Fair Use should disregard how the copyrighted materials were obtained.
For example, if Facebook employees broke into the home of a renowned author and stole private copyrighted materials they then used for training their LLMs, should the Court, in analyzing the Fair Use factors, disregard the illegal nature of how the copyrighted materials were obtained?
I believe it unlikely a Court would be willing to reward such behavior.
Once that principle is resolved, the next step would be for the court to consider whether it would make any difference if Facebook employees did not engage in the direct theft, but acquired copies of the stolen materials from the thief with full knowledge they were stoken.
If the court believes both #1 and #2 would be unacceptable, their analysis would then proceed to consider if there were differences favoring Facebook if Facebook acquired millions of copyrighted materials via a notorious website widely accused of illegally posting unauthorized access to copyrighted materials.
I suspect this will likely be the central issue of the legal debate. And, I for one, do not think Facebook has a very strong legal argument. Going back to the first step of the anslysis, I would be shocked if SCOTUS would be willing to state that how the copyrighted materials were obtained is irrelevant to the Fair Use analysis.
For example, if Facebook employees broke into the home of a renowned author and stole private copyrighted materials they then used for training their LLMs, should the Court, in analyzing the Fair Use factors, disregard the illegal nature of how the copyrighted materials were obtained?
I believe it unlikely a Court would be willing to reward such behavior.
Once that principle is resolved, the next step would be for the court to consider whether it would make any difference if Facebook employees did not engage in the direct theft, but acquired copies of the stolen materials from the thief with full knowledge they were stoken.
If the court believes both #1 and #2 would be unacceptable, their analysis would then proceed to consider if there were differences favoring Facebook if Facebook acquired millions of copyrighted materials via a notorious website widely accused of illegally posting unauthorized access to copyrighted materials.
I suspect this will likely be the central issue of the legal debate. And, I for one, do not think Facebook has a very strong legal argument. Going back to the first step of the anslysis, I would be shocked if SCOTUS would be willing to state that how the copyrighted materials were obtained is irrelevant to the Fair Use analysis.