Fair use, foxes, and chicken-and-egg management

A clumsy attempt to frame the argument around originality indicates the blunt aims behind more honeyed words.

by Rob Corbidge

Published: 15:16, 02 July 2026

One might expect Google's top legal mind to be able to pull out a fresh, apposite and insightful analogy when it comes to describing a notion of how his company sees "fair use" when it comes to "publicly available web data for training models" for the purposes of LLM production.

With originality and the process of creation sitting in a not-so-abstract way at the heart of such debates, both legal and not, we might expect something utterly compelling from such a well-thesaurused gentleman as Kent Walker. Google's sop legal thumb.

Not so, it is my sad duty to report, as using said publicly available web data for "training models is a transformative, non-expressive use" and is like, according to Walker "an art student taking inspiration from walking through a gallery", concluding that this "should remain protected under fair use in the US and text-and-data-mining exceptions abroad."

This quote is drawn from a white paper authored by Walker, entitled A Pragmatic Approach to AI Governance In America, published a week ago. It largely concerns itself with arguments over exactly which group of foxes should be put in charge of egg production, and how, but the part directly salient to our publishing readership, page 18 to be precise.

When I read the art gallery analogy - one surely designed to conjure a feeling of benign serenity - I knew I'd read it before in a similar context...

I had! Step forward The Tony Blair Institute, who published their own vision of the AI future, Rebooting Copyright, in April 2025. We wrote about it. It said "... artists visit galleries, often with no entrance fee, to explore a variety of creative works. Was Tracey Emin expected to reimburse Louise Bourgeois for the transformative experience she had upon encountering her work at the Tate in 1995? The relationship between originality and imitation has always been ambivalent, from classical art to the present day".

Firstly, do not forget, such gentle high culture talk is being used as an argument for looting. But secondly, can't they come up with a better analogy for explaining themselves? Did Walker just use Gemini to help him? Or maybe ChatGPT.

A bad point well missed
It's not like an art gallery. It's the taking and using of original work in order to create an amalgam of such work. Inspiration is a process so complex and so human, that the word itself originates from Latin, to "blow into, breathe upon". LLMs are a human creation, that's why they're so impressive. A chimpanzee can hold a paint brush, but the ability to produce art is uniquely human - if only because we are the ones that say it is so.

We can know little of how Walker understands the creative process. That is not a snobby thing to say, as I am not claiming to understand it either. It might well be that he is a committed engraver of free-flowing brass art pieces, or writes his own mournful Blue Grass tracks. Yet, he's never made a living out of doing that, as far as it is known, and I can't think he knows how much it matters.

Broadly, Kent's thoughts are a reminder that while it might seem the creative industries have fought a remarkably coherent battle against those who would wish to take their work and turn it into gold without paying for it, the war itself is still on.

The end results of such a war are being decided in courts, with something like over 100 separate court actions over the use of copyrighted materials underway in the US alone. 

Over in the UK, Google's lobbying efforts have a rather more directly coercive nature. The Telegraph reported that Katie O'Donovan, Google UK's Head Of Public Policy - and an ex-colleague of Tony Bair, should we forget - saying of UK copyright laws that "When any company is building a data centre here, or indeed building an AI company here, the moment they want to train those LLMs, they have to go to a different jurisdiction." This, "puts a ceiling on the sophistication of our [British] AI economy ... That investment, that capacity, goes elsewhere".

So, in other words, relax copyright laws or Google won't build the shiny mega stuffs here, right?

Much of what we regard as art, attains that status with the passage of time.

Corporations come and go, as do policy advisors.