​​National Security and the Artist’s Role: Examining the Senate Judiciary Committee’s Hearing on Copyright Law and AI Training

November 10, 2025

By Katelyn Wang

Since the nation’s founding, artists have shaped fundamental expression and governance. But in today’s AI driven landscape, the role of the artist is questioned in the name of national security. This tension was exemplified on July 16, 2025, when Senator Josh Hawley (R-MO) declared before the Senate Judiciary Committee’s Subcommittee on Crime and Counterterrorism that we are facing “the largest intellectual property theft in American history.”^[1] The hearing, Too Big to Prosecute?: Examining the AI Industry’s Mass Ingestion of Copyrighted Works for AI Training, examined the large scale pirating of copyrighted works by prominent tech corporations, thus exploring where artists fit into these conversations about innovation. The hearing outlined that today’s AI race should prioritize national security not by undermining artists, but by respecting the longstanding significance of original creative work to our nation’s democracy. Senator Hawley correctly affirms that by disrespecting copyright law, large tech corporations unjustly hurt creators and the broader public while threatening the democratic foundation of our country, ultimately undermining national security.

I. Fair Use: An Affirmative Defense

Respecting the nation’s laws is fundamental to preserving national security. Many copyright laws protect original creators, but there are exceptions in order to facilitate public innovation; one such exception is the fair use defense, which can be employed to justify usage of a copyrighted original work for legitimate purposes. This is, however, misapplied to exploit artists, as tech corporations weaponize this exception to defend illegitimate conduct. To elaborate, when addressing the conduct of tech corporations, Senator Hawley stated, “These companies are coming to claim fair use after they’ve stolen . . . [T]hey went to a pirated, illegal site and took [copyright works], and now they are coming and claiming the cover of equity.”^[2] Hawley characterizes the fair use defense as a shield for theft, alleging that companies wield the power of law to defend a negative action. This idea is solidified in the response of Professor Bhamati Viswanathan, an assistant professor of Law at New England Law School and a witness at the hearing. She asked the fundamental question: “Is this what fair use was developed to be?”^[3]

Professor Viswanathan elaborates that fair use is an affirmative defense, meaning that while someone admits to infringement, they can argue the use was justified because it served a socially beneficial purpose.^[4] Established categories of fair use include criticism, commentary, scholarship, and research,^[5] all activities which qualify as socially valuable, even if they technically involve infringement. This affirmative nature—or presupposition of good faith—is a fundamental tenant of fair use. This is evident in the landmark Supreme Court case Campbell v. Acuff-Rose Music, Inc., where Acuff-Rose Music sued another record company for infringing their copyright in Roy Orbison’s “Oh, Pretty Woman.” The Court held that the usage of copyrighted creative material that “can provide social benefit” may qualify as fair use.^[6] The emphasis on “social benefit” qualifies the conduct of the infringer as beneficial, so that even though a copyright was violated, it was done in good faith.

Professor Viswanathan extends the discussion on fair use by deeming the conduct of large tech corporations as illegitimate grounds for raising the fair use defense. She states, “[T]he very fact that these companies are arguing they were in good faith for fair use purposes . . . shouldn’t even be a defense they are allowed to raise. It does not seem consonant with what fair use was ever meant to do.”^[7] She points out a discrepancy between conduct that the fair use defense permits and the situations in which large AI corporations now apply this line of defense, which ultimately harms artists and creators.

II. Improper Application of the Fair Use Defense

The exploitation of artists through the improper application of the fair use defense harms people across the country, destabilizing national security. Indeed, copyright law not only protects artists, but also the greater public. Pierre N. Leval, senior judge for the United States Court of Appeals for the Second Circuit, wrote in the Harvard Law Review in his piece “Toward a Fair Use Standard” that the fair use defense is permitted when “the secondary use adds value to the original . . . this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”^[8] The “enrichment of society” remains a fundamental component of fair use, and Senator Hawley affirms this throughout the Senate Judiciary Committee hearing.

In fact, this understanding of fair use is sharply contrasted against usage that benefits private entities. Senator Hawley provided a clear distinction: “[C]opyright infringement] may benefit American corporations. It may impoverish American citizens, but it will benefit American corporations.”^[9] When referring to American citizens, Senator Hawley refers to the authors and artists whose livelihoods depend on their creative products. These creatives rely on copyright law for economic gain and survival in the marketplace. Thus, he emphasizes that the decision by large corporations to evade copyright law impoverishes these artists economically. Importantly, however, Senator Hawley expands on those American citizens who should be shielded from the conduct of large corporations, as he states that those protected include “anybody else or any young author who’s trying to get a start or any other person, creative, non-creative, or just a working guy who puts something on Facebook? Why should all his stuff get taken?”^[10] The broad characterization of this group of people extends Senator Hawley’s description; rather, “impoverished” no longer stems from a purely financial standpoint, but from a comprehensive evaluation of professional career development, creative expression, and free speech.

Even a recreational artist deserves protection from large corporations using their work without permission. The understanding of who and what sorts of works deserve copyright protection from large corporations is expanded—demonstrating how misapplication of the fair use defense hurts a tremendously broad range of people in our nation.

Maxwell V. Pritt, a partner at Boies Schiller Flexner LLP representing artists and programmers in copyright suits against AI companies, reinforced this point.^[11] In his testimony at the hearing, Pritt outlines the actions of large corporations, specifically, the mass piracy of Meta. He relies on the 2025 case Kadrey v. Meta Platforms, Inc., where a class of authors alleged that Meta’s unauthorized copying of their books for purposes of training LLaMA models violated copyright law.^[12] For the hearing, Mr. Pritt detailed the conduct that Meta engaged in to train its LLM model, LLaMA. Library Genesis (“LibGen”) is a shadow library, which provides access to vast amounts of books and other resources through evading traditional paywalls and copyright regulations. In early 2023, Meta needed more text data for its LLaMA model, and it had floated licensing budgets as high as $200 million.^[13] However, later in 2023, Meta executives instructed its business development team to cease licensing and utilize pirated copyright works from LibGen to train its LLaMA model; thus, Meta turned to pirated books as a free replacement for properly licensed material.^[14]

As Mr. Pritt points out, there was a clear cost-benefit analysis: “Expend time and resources to legally acquire the rights to copyrighted books and articles from those who own the rights; or pirate them all for free now from illegal websites and pay litigation damages later—or, even more appealing, pay nothing at all if they can convince the courts to excuse their unprecedented commercial piracy as fair use.”^[15] As the hearing emphasizes, these corporations are employing the fair use defense in the context of saving their business from having to properly compensate for a key piece of their AI training models. While proper licensing procedures exist, it is simply more attractive to a corporation’s bottom line to unlawfully mass pirate creative content instead. This application of the fair use defense is centered around safeguarding the profits of these corporations, as opposed to benefiting the public interest, artists, or society at large.

III. Protecting the Cultural, Democratic Foundation of America

Disrespecting copyright law not only threatens national security by uprooting the legal systems that protect artists and the broader public, but it also threatens the cultural, democratic foundation that national security is meant to protect. In many discussions of copyright law and AI training, a common refrain is that the United States must “win” the AI race against competitors, necessitating an evasion of copyright restrictions and artists rights. At the hearing, one witness, Edward Lee, a Professor of Law at the Santa Clara University School of Law, utilized this line of argument and referred to President Trump’s executive order, declaring it a national priority to maintain U.S. dominance globally in AI.^[16] This executive order, Removing Barriers to American Leadership in Artificial Intelligence, states in section two: “It is the policy of the United States to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.”^[17]

Indeed, national security is vital—but artists are critical to the nation’s strength. The essence of America rests in free expression and individual rights, which Senator Hawley emphasizes:

“Who are we going to be as a country? Are we going to be a country as is written into our Constitution where we protect the rights of our citizens? It’s part of what makes us Americans. We welcome the . . . marvelous diversity of imagination and viewpoints and perspectives that has come to characterize our country. Are we going to protect that? Or are we going to allow a few mega corporations to vacuum it all up, digest it, and make millions of dollars in profits, maybe trillions, and pay nobody for it? That’s not America.”^[18]

As much as the AI race has fueled hype in the sphere of digital innovation, it has spurred an identity crisis for the nation. New applications of the fair use defense have pitched creatives against corporations, creating a juxtaposition between reckless profit and the enrichment of society. Still, national security relies on the protection of creative and individual rights: these rights not only constitute a legal system where copyright laws can ensure the protection of ongoing original creations and public benefit, but such rights also empower our nation as one that is made stronger by the multitude of narratives we share and our democratic character.

IV: Enhancing National Security

In today’s AI ecosystem, our nation must respect artists and original creators. From a national security viewpoint, it is critical to recognize that a truly democratic country is one where the production of culture and ideas is ongoing and valued. Even if AI models enrich society, the current practice of pirating copyrighted works primarily serves to maximize corporate profits as opposed to benefiting artists and the broader public. This is especially concerning given that proper licensing procedures are a viable, but dismissed, option. At the end of the day, Senator Hawley agrees, like everyone else, that national security is critical. And, yes, it is. However, as the Senate hearing highlights, rather than pitching national security against the rights of artists by justifying the ingestion of pirated works, national security rests on the correct usage of laws that protect creativity and advance the democratic values of the nation. In today’s AI age, national security is thus advanced through enforcing licensing procedures and upholding copyright law.

Suggested Readings and Videos:

• Copyright Alliance Hearing Statement: https://copyrightalliance.org/wp-content/uploads/2025/07/Copyright-Alliance-Senate-Hearing-Statement.pdf
• Toward A Fair Use Standard, Pierre N. Leval,: https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf
• Witness testimonies, SJC: https://www.judiciary.senate.gov/committee-activity/hearings/too-big-to-prosecute-examining-the-ai-industrys-mass-ingestion-of-copyrighted-works-for-ai-training

About the Author:

Katelyn Wang is a Guest Writer at the Center for Art Law. She is an undergraduate at Yale University and legal intern at the National Association of Attorneys General, where she focused on consumer protection issues including emerging technologies and innovation. In New Haven, she co-founded and directs Bright Spaces, a public arts organization that collaborates with local businesses and groups. She is interested in intellectual property, copyright, trademark, and art law.

Select References:

1. U.S. Senate Judiciary Committee, Oversight of A.I.: Evaluating the Urgent Need for Regulation, YouTube (July 25, 2023), https://www.youtube.com/watch?v=j3rLSWoYnis&t=1117s. ↑
2. Id. at 59:38. ↑
3. Id. at 1:12:45. ↑
4. Id. at 1:13:04. ↑
5. 17 U.S.C. § 107 (2023), https://www.law.cornell.edu/uscode/text/17/107. ↑
6. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). ↑
7. Oversight of A.I., supra note 1, at 1:14:04. ↑
8. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1109 (1990), https://yalelawtech.org/wp-content/uploads/2009/09/leval.pdf. ↑
9. Oversight of A.I., supra note 1, at 57:21. ↑
10. Id. at 1:21:16. ↑
11. Written Testimony of Maxwell Pritt, U.S. Senate Judiciary Committee Hearing, Too Big to Prosecute?: Examining the AI Industry’s Mass Ingestion of Copyrighted Works for AI Training, at 1 (July 16, 2025), https://www.judiciary.senate.gov/imo/media/doc/64bc45b6-9e04-22e4-34c1-12d0efad69ef/2025-07-16%20-%20Testimony%20-%20Pritt.pdf. ↑
12. Pritt, supra note 11, at 8. ↑
13. Id. at 8. ↑
14. Id. at 9. ↑
15. Id. at 3. ↑
16. Oversight of A.I., supra note 1, at 58:06. ↑
17. Exec. Order No. 14115, Removing Barriers to American Leadership in Artificial Intelligence, 90 Fed. Reg. 2371 (Jan. 23, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/removing-barriers-to-american-leadership-in-artificial-intelligence/. ↑
18. Oversight of A.I., supra note 1, at 1:02:32. ↑