Pages Navigation Menu

Ai, Fair Use and the First Amendment


by Mark Dzula


Writers are on strike in Hats against AI companies, and consider what’s at stake in each situation.

  • Students will consider the four factors of fair use to determine if companies are on solid legal footing when they make this claim when they utilize large data sets to train AI bots.
  • Students will research and weigh the role of precedent to predict how the courts may rule in these cases, including work with primary source documents.
  • Students will propose guidelines that safeguard the First Amendment and protect the rights of content creators in the face of rapidly developing AI.

Common Core State Standards

CCSS.ELA-LITERACY.RI.9-10.8 Delineate and evaluate the argument and specific claims in a text, assessing whether the reasoning is valid, and the evidence is relevant and sufficient; identify false statements and fallacious reasoning.
CCSS.ELA-LITERACY.RI.9-10.7 Analyze various accounts of a subject told in different mediums (e.g., a person’s life story in both print and multimedia), determining which details are emphasized in each account. 
CCSS.ELA-LITERACY.RI.9-10.4 Determine the meaning of words and phrases as they are used in a text, including figurative, connotative, and technical meanings; analyze the cumulative impact of specific word choices on meaning and tone (e.g., how the language of a court opinion differs from that of a newspaper). 
CCSS.ELA-LITERACY.RI.9-10.6 Determine an author’s point of view or purpose in a text and analyze how an author uses rhetoric to advance that point of view or purpose. 


One eighty-minute block, with HW

Materials / resources

Day 1 step-by-step

  1. Opening activity: Determining transformative use. Teacher flashes examples from Copyright Fair Use Examples on the board, asking ‘was this a case of fair use?’
  2. After brief discussion, pull up the four factors of fair use, discuss each aspect. Consider grouping into four groups, one for each factor. Groups discuss, then share out their understanding of each factor. Using precedent from the cases presented in the opening activity, determine more nuanced and specific understanding of the limits of fair use.
  3. In-class reading (choose one):
    1. ChatGPT maker OpenAI faces a lawsuit over how it used people’s data
    2. Sarah Silverman Sues OpenAI and Meta Over Copyright Infringement
    3. With Warhol, It’s Time to Transform Transformative Use
  4. Reading Response: How might our understanding of the four factors of fair use be impacted by the reading materials, especially given the capacity of AI to consume large data sets for training and to rely on human-generated content (copyrighted or not). How might the rights of citizens and creative workers be respected?
  5. HW: Write 2 page double-spaced opinion piece on AI, copyright, fair use, and the First Amendment. What should companies do as they pursue AI? What should creators expect? How might they safeguard their material? What should citizens keep in mind as they allow companies access to their data? Compelling essays will provide examples (cases, precedent, etc) and consider prospective counter arguments.

Teacher notes: 

A lesson or previous practice with persuasive writing in legal settings may also help students feel prepared to execute the lesson well.

This lesson could be extended by requiring the students to go much further in-depth with their research. Another class could be devoted to a mock hearing, with role play with students acting as judges (and assuming their POVs) and well as litigants (assuming their POVs) in the cases described in the reading materials.