But when they download images, music or videos from Internet they are making non-transformative copy.

I would suggest you argue with the judge that downloading something is making a non-transformative copy of the material.

I believe that, however, is irrelevant to the transformative nature of the end product - the model itself.

I would also encourage you tread Perfect 10 v Google and the appeal ( https://arstechnica.com/tech-policy/2007/05/google-v-perfect... https://www.eff.org/cases/perfect-10-v-google https://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com.... )

From Wikipedia:

> The Ninth Circuit did, however, overturn the district court's decision that Google's thumbnail images were unauthorized and infringing copies of Perfect 10's original images. Google's claimed that these images constituted fair use, and the circuit court agreed. This was because they were "highly transformative." The court did not define what size a thumbnail should be but the examples the court cited was only 3% of the size of the original images. Most other major sites use a size not longer than 150 pixels on the long side. Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information, citing the precedent Kelly v. Arriba Soft Corporation. The court reached this conclusion despite the fact that Perfect 10 was attempting to market thumbnail images for cell phones, with the court quipping that the "potential harm to Perfect 10's market remains hypothetical."

> The court pointed out that Google made available to the public the new and highly beneficial function of "improving access to [pictorial] information on the Internet." This had the effect of recognizing that "search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody's sales.

If resizing an image to a fraction of the size of the original is sufficiently transformative and useful for a different thing (image search rather than selling thumbnails for cellphone porn) is considered fair use, then direct parallels could be drawn from that ruling to OpenAI's use of copyrighted material being sufficiently transformative and irrespective of someone selling summaries of a copyrighted work.

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If you believe that OpenAI and other LLMs are infringing and not covered by fair use, it would be helpful if you could write a bit on how they fail at the four tests of fair use described in https://fairuse.stanford.edu/overview/fair-use/four-factors/

The common belief is that copyright covers redistribution, not literal copying. Otherwise, computers and the Internet would not work.