Still, this ruling is a blow to AI companies, according to Cornell University professor of digital and internet law James Grimmelmann: “If this decision is followed elsewhere, it’s really bad for the generative AI companies.” Grimmelmann believes that Bibas’ judgement suggests that much of the case law that generative AI companies are citing to argue fair use is “irrelevant.”

Chris Mammen, a partner at Womble Bond Dickinson who focuses on intellectual property law, concurs that this will complicate AI companies’ fair use arguments, although it could vary from plaintiff to plaintiff. “It puts a finger on the scale towards holding that fair use doesn’t apply,” he says.

This is another Delaware court judgment Big Tech won’t like, but a lot of media companies will like. I wonder if we’ll see not a wholesale abandonment of Delaware like some articles suggest, but that companies who want to take from others will leave for jurisdictions more willing to let them do whatever they want while companies who have more to protect will stay?