It is also important to note two other issues that can affect the application of limitations and 
exceptions, in particular, their application to e-books.  
The ﬁrst important limitation is that almost every digital book published today comes with a 
set of contractual terms that restrict what users can do with it. In many cases, those terms 
will explicitly restrict text data mining or AI uses of the content, meaning that even where 
copyright law allows for reuse (for example, under fair use), publishers by contract can 
impose restrictions anyway. In the United States, those contract terms are generally thought 
to override the applicability of fair use or other limitations and exceptions.  O t h e r  23
jurisdictions, such as those in the EU, provide that certain limitations and exceptions cannot 
be contractually overridden, though experience to date varies with how those anti-contractual 
override protections work in practice.  24
The second limitation is the widespread adoption of “anti-circumvention” rules in copyright 
laws and the interplay of these with a choice to rely on copyright limitations and exceptions. 
Digital books sold by major publishers are generally encumbered with “digital rights 
management” (DRM) that limits how someone can use the digital ﬁle. For instance, DRM can 
limit the ability to make a copy of the book, or even screenshot or excerpt from it, among 
other things. Anti-circumvention laws restrict someone's ability to evade these technical 
restrictions, even if it is for an ultimately lawful use. 
What this means for our purposes is that even if one acquires a digital book from, for 
example, Amazon, and it is lawful under copyright law to use that book in AI training, it can 
still generally be unlawful to circumvent the DRM to do so, outside narrow exceptions.  25
Thus, the ability to use in-copyright books encumbered by DRM — that is, most all books sold 
by major publishers — is generally limited.   26
Practically, using in-copyright books to build a books commons for AI training — while relying 
on copyright’s limitations and exceptions — requires turning a physical book into digital form, 
or otherwise engaging in the laborious process of manually re-creating a book’s text (i.e., re-
typing the full text of the book) without circumventing the technical restrictions themselves. 
 See Hansen, Dave. “Fair Use Week 2023: How to Evade Fair Use in Two Easy Steps.” Authors Alliance, 23
23 Feb. 2023, www.authorsalliance.org/2023/02/23/fair-use-week-2023-how-to-evade-fair-use-in-two-
easy-steps/. Accessed 20 Mar. 2024.
 See Band, Jonathan. “Protecting User Rights against Contract Override.” Joint PIJIP/TLS Research 24
Paper Series, 1 May 2023, digitalcommons.wcl.american.edu/research/97/. Accessed 20 Mar. 2024.
 In the U.S. the Copyright Oﬃce has recognized the importance of allowing particular exceptions for 25
researchers engaged in text and data mining. See their rulemaking in 2021 https://
www.federalregister.gov/documents/2021/10/28/2021-23311/exemption-to-prohibition-on-
circumvention-of-copyright-protection-systems-for-access-control. These rules are reviewed triennially 
and are currently under review, with submissions suggesting both contraction and expansion; see the 
Authors’ Alliance comments in January 2024 https://www.authorsalliance.org/2024/01/29/authors-
alliance-submits-long-form-comment-to-copyright-oﬃce-in-support-of-petition-to-expand-existing-text-
and-data-mining-exemption/. It is possible that one could argue for these exceptions to be expanded, 
and then work to renew that exception every three years. The EU’s text and data mining exception may 
also limit use of DRM to impede data mining, but only for particular covered research and heritage 
institutions; commercial and other users are not covered, however.
 Note that CC licenses forbid use of DRM — but that doesn’t address most all books sold by publishers.26
Towards a Books Data Commons for AI Training 11