Technology

Tbh, this is not a question about scraping at all.

Scraping is just a rather neutral tool that can be used for all sorts of purposes, legal and illegal.

Neither does the technique justify the purpose nor does outlawing the technique fix the actual problem.

Fair use only applies for a certain set of use cases and has a strict set of restrictions applied to it.

The permitted use cases are: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research".

And the two relevant restrictions are:

• "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"
• "the effect of the use upon the potential market for or value of the copyrighted work."

(Quoted from 17 U.S.C. § 107)

And here the differences between archive.org and AI become obvious. While archive.org can be abused as some kind of file sharing system or to circumvent paywalls or ads, its intended purpose is for research, and it's firmly non-profit and doesn't compete with copyright holders.

AI, on the other hand, is almost always commercial, and its main purpose is to replace human labour, specifically of the copyright owners. It might not be an actual problem for Disney's bottom line, but it's a massive problem for smaller artists, stock photographers, translators, and many other professions.

That way, it clearly doesn't apply to the use cases for fair use while violating the restrictions.

And for that, it doesn't matter if the training data is acquired using scraping (without permission) or some other way (without permission to use it for AI training).