fair use – Centre on Knowledge Governance

Latest Developments on Training GenAI with Copyrighted Works and Some 'What Ifs?'

Luca Schirru / 30 June, 2025

‘Boring’ is not a word that can be used to describe the past few days for those interested in litigation involving copyright issues in the development and use of Generative AI systems. Two major cases saw significant updates, issuing orders that addressed one of the main questions raised in these lawsuits: is the use of copyrighted materials to train Generative AI systems fair use? This blog post aims to briefly describe each case’s key points related to fair use and to highlight what was left unresolved, including all the ‘what if’ scenarios that were hinted at but not decided upon Bartz, Graeber & Johnson v. Anthropic Judge William Alsup’s order on fair use addressed not only the different copies of copyrighted material made for training generative AI systems but also uses related to Anthropic’s practice of keeping copies as a “permanent, general-purpose resource”. It also distinguished between legally purchased copies and millions of pirated copies retained by Anthropic, applying a different fair use analysis to each category. Regarding the overall analysis of fair use for copyrighted works used to train Anthropic’s Generative AI system, Judge Alsup found that the use “was exceedingly transformative and was a fair use.” Among the four factors, only the second factor weighed against using copyrighted works to train the GenAI system. Concerning the digitization of legally purchased books, it was also considered fair use not because of the purpose of training AI systems, but for a much simpler reason: “because all Anthropic did was replace the print copies it had purchased for its central library with more convenient space-saving and searchable digital copies for its central library — without adding new copies, creating new works, or redistributing existing copies”. For this specific use, of the four factors, only factor two weighed against fair use, while factor four remained neutral. On the other hand, Judge Alsup clearly stated that using pirated copies to create the “general-purpose library” was not fair use, even if some copies might be used to train LLMs. All factors weighed against it. Specifically, Judge Alsup noted: “it denies summary judgment for Anthropic that the pirated library copies must be treated as training copies. We will have a trial on the pirated copies used to create Anthropic’s central library and the resulting damages, actual or statutory (including for willfulness).” Kadrey v. Meta At the very beginning of the order, Judge Vince Chhabria clarified that the case questions whether using copyrighted material to train generative AI models without permission or remuneration is illegal and affirmed that: “although the devil is in the details, in most cases the answer will likely be yes. What copyright law cares about, above all else, is preserving the incentive for human beings to create artistic and scientific works. Therefore, it is generally illegal to copy protected works without permission. And the doctrine of “fair use,” which provides a defense to certain claims of copyright infringement, typically doesn’t apply to copying that will significantly diminish the ability of copyright holders to make money from their works (thus significantly diminishing the incentive to create in the future).” Judge Chhabria explained further that “by training generative AI models with copyrighted works, companies are creating something that often will dramatically undermine the market for those works, and thus dramatically undermine the incentive for human beings to create things the old-fashioned way.” According to him, this would primarily affect not classic works or renowned authors but rather the market for the “typical human-created romance or spy novel,” which could be substantially diminished by similar AI-created works. However, all these points were framed as “this Court’s general understanding of generative AI models and their capabilities”, with Judge Chhabria emphasizing that “Courts can’t decide cases based on general understandings. They must decide cases based on the evidence presented by the parties.” Despite this general understanding that “copying the protected works, however transformative, involves the creation of a product with the ability to severely harm the market for the works being copied, and thus severely undermine the incentive for human beings to create“, Judge Chhabria found two of the plaintiffs’ three market harm theories “clear losers,” and the third, a “potentially winning” argument, underdeveloped: “First, the plaintiff might claim that the model will regurgitate their works (or outputs that are substantially similar), thereby allowing users to access those works or substitutes for them for free via the model. Second, the plaintiff might point to the market for licensing their works for AI training and contend that unauthorized copying for training harms that market (or precludes the development of that market). Third, the plaintiff might argue that, even if the model can’t regurgitate their own works or generate substantially similar ones, it can generate works that are similar enough (in subject matter or genre) that they will compete with the originals and thereby indirectly substitute for them. In this case, the first two arguments fail. The third argument is far more promising, but the plaintiffs’ presentation is so weak that it does not move the needle, or even raise a dispute of fact sufficient to defeat summary judgment.“ In the overall analysis of the four factors, only the second factor weighed against Meta. Summary judgment was granted to Meta regarding the claim of copyright infringement from using plaintiffs’ books for AI training. Nevertheless, Judge Chhabria clarified that “this ruling does not stand for the proposition that Meta’s use of copyrighted materials to train its language models is lawful. It stands only for the proposition that these plaintiffs made the wrong arguments and failed to develop a record in support of the right one.” The use of pirated copies was also addressed in Kadrey v. Meta. In this case, “there is no dispute that Meta torrented LibGen and Anna’s Archive […].” According to Judge Chhabria, while downloading from shadow libraries wouldn’t automatically win the plaintiffs’ case, it was relevant for the fair use analysis, especially regarding “bad faith” and whether the downloads benefited or perpetuated unlawful activities. Lessons

Blog

Fair Use Isn’t Optional: Judges Can Help Reclaim It for Creators

InfoJustice Eds. / 12 June, 2025

By Yuanxiao Xu. This post was originally published on Authors Alliance. “One need not be a copyright scholar to evaluate fair use. One need only understand the purpose of copyright. — Leval wins my heart forever” Brandon Butler’s drawing of Judge Leval. CC BY 4.0. If you have spent much time exploring U.S. copyright law, you’d likely have encountered the writings—or at least the influence—of Judge Pierre Leval. Among many other contributions, his “Toward a Fair Use Standard” article built a solid foundation for modern fair use jurisprudence. On the bench, Judge Leval’s opinions are famed for their clarity and balance, always mindful of “copyright’s overall objective of contributing to public knowledge,” as can be seen in his landmark decision in Authors Guild v. Google. On May 23rd, another very important opinion was authored by Judge Leval for the Second Circuit Court in Romanova v. Amilus Inc. Although we won’t delve into it further in this blog post, his opinion provides much-needed clarification on “justification” post-Warhol—guidance that we hope many courts will follow in the coming years. The case facts in Romanova were simple and straightforward: a photographer sued a website for republishing her photo without permission. The district court wrongly found fair use, and the Second Circuit reversed. The opinion authored by Judge Leval was characteristically thoughtful, not only in its substantive treatment of fair use, but also in its strong affirmation of the district court’s decision to raise fair use sua sponte (Latin for “of one’s own accord “—sua sponte is used to indicate that a court has taken notice of an issue on its own motion, without prompting or suggestion from either party). This post focuses on that procedural dimension of Romanova and goes one step further, explaining why fair use should never have been treated as an affirmative defense in the first place. For decades, Campbell v. Acuff-Rose has been celebrated as a decision that fortified fair use. But ironically, the decision also ossified the view that fair use is strictly an affirmative defense—significantly limiting the power of fair use to safeguard free expression in practice. Even where lower courts are doubtful, they nevertheless feel bound by the way the Campbell court construed fair use as an affirmative defense. In a footnote in Suntrust Bank v. Houghton Mifflin, the Eleventh Circuit Court mused: “fair use is commonly referred to an affirmative defense, see Campbell v. Acuff-Rose Music . . . Nevertheless, the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes.” Now, Judge Leval (whose influential scholarship was cited with approval in Campbell) is helping to restore the power of fair use as a fundamental right—one that cannot be waived, forfeited, or overlooked due to procedural missteps. Although the case facts and substantive fair use ruling in Romanova are relatively routine, its procedural holding stands out as especially noteworthy. It restores to fair use its legal force and its human dimension. The district court in Romanova, acting on its own initiative, dismissed the plaintiff’s copyright infringement claim on the basis of the defendant’s use being a fair use, even though the defendant had not appeared in court and never raised the fair use defense. The Second Circuit upheld the decision of the district court to consider fair use sua sponte. While the court did not go so far as to declare that fair use is not an affirmative defense, Judge Leval’s opinion strips away some of the harmful consequences of treating fair use procedurally rigidly. According to Judge Leval, justice should not depend on one party’s ability to afford litigation, and that courts are always empowered to consider obvious, meritorious fair use defenses. Recognizing how imbalances in power play out in costly copyright litigation, Judge Leval reasoned with clairvoyance: At times, small corporations simply cannot afford the expense of counsel needed to defend a suit. Default does not necessarily preclude the court’s consideration of affirmative defenses available to the defendant, especially when they have obvious merit and their applicability is evident from the face of the complaint. Otherwise, plaintiffs could often easily inflict unjustified harms on small corporate enemies. Intimidation tactics would threaten to strip small creators of their content, and would silence the numerous small platforms that need the protection of the fair use doctrine. (emphasis added) He concluded: The district court here believed that its consideration of the fair use defense would serve justice and advance the goals of copyright. [The district] court misunderstood the fair use defense, which in fact had no proper application to these facts. But we cannot fault the district court for considering a defense which it believed (albeit mistakenly) was valid and important. While district courts should indeed be cautious before sua sponte invoking affirmative defenses on behalf of defaulting defendants, they should also be cautious about not considering such defenses. Up until this opinion, many courts have doggedly followed the mistaken belief that defendants must plead fair use in their answer or a motion to dismiss, or risk waiving it—because fair use has been characterized rigidly as an affirmative defense, a position reinforced by lower courts’ reading of Campbell. An affirmative defense first admits that a wrongful act has occurred, then offers a justification or excuse that negates culpability. The wrongfulness of the act is central to the concept of an affirmative defense. For example, a bribe given in a foreign country is wrongful by nature, but if the foreign country’s written law allows for such payments, it can serve as an affirmative defense; a board of directors neglecting fiduciary duty is wrongful by nature, but they can use a later shareholder rectifying vote as an affirmative defense; most famously, perhaps, killing another human is wrongful by its nature, but self defense is an affirmative defense. Because of the innate wrongfulness of the acts in such circumstances, it seems reasonable that the presumed wrongdoer must raise an affirmative defense and support it with evidence. However, fair use is not a wrongful act by nature, and treating it as though it were fundamentally misunderstands its role in copyright law. Unlike bribery, breach of fiduciary

Artificial Intelligence, Blog

Fair Use and Generative AI: Reading Between the Lines of the USCO Report

Luca Schirru and Sean Flynn / 29 May, 2025

At the beginning of May, the report “Copyright and Artificial Intelligence. Part 3: Generative AI Training” was released, sparking a wide range of debates due to its content and the political issues surrounding its release. In this short contribution, we aim to briefly introduce the report and touch on some of the key content and political issues currently being discussed. SCOPE AND STRUCTURE OF THE REPORT The first thing that stands out about the report appears right on its first page: “pre-publication version”: a label reported as unusual and potentially unprecedented. The 113-page document addresses one of the most controversial issues at the intersection of copyright and Generative AI: the use of protected content to train Generative AI systems. While most sources focus on fair use, the report also includes sections on “technical background,” “infringement,” and “licensing for AI training”, all of which are a “must read,” especially for those just joining the discussion and feeling overwhelmed by the hundreds of thousands of articles, blogs, books, and other resources available on the topic. The report attempts to summarize some of the main issues in both the legal and technical fields. The approach taken by the USCO is sometimes described as “favorable to copyright owners” or as “a mixed bag”, receiving both praise and criticism on multiple fronts, as we will illustrate below. POLITICAL CONTEXT AND CONTROVERSIES The timing of the report While it may be early to determine the precise reasons behind the (unusual) release of a pre-publication version, several explanations have been speculated, though none have been confirmed. The report states that its early release was made “in response to congressional inquiries and expressions of interest from stakeholders.” However, questions have been raised that may relate to concerns about potential restrictions under Trump Administration, which is arguably aligned with positions favorable to big technology companies, as well as fear that the report could be buried in the event of the dismissal of the Register of Copyright, or the potential influence on ongoing legal cases. Regarding the latter, there have been concerns about the timing of the report and how it could interfere with the outcomes, especially the fair use analysis, of ongoing lawsuits. As noted, “it could put a thumb on the scale for how the courts will resolve these cases,” without giving the parties an opportunity to address any potential gaps in the report, which could have a significant impact on other GenAI cases. Leadership changes and copyright policy While the timing of the notice of dismissal of Shira Perlmutter (Register of Copyrights at the time the report was drafted) and the release of the report could give rise to the inference that the report was the sole reason for her dismissal, other events may have influenced the decision as well. The day before the release of the (pre-publication version of the) report, the Librarian of Congress, Carla Hayden, who had appointed Shira Perlmutter, was dismissed. Therefore, concerns about additional leadership changes may also have played a role in the decision to release the pre-publication version. An extra layer of complexity arises when one considers that Perlmutter’s position was one appointed and overseen by the legislative branch. The argument that the report may have contributed to the dismissal has often been linked to an alleged alignment between the Trump Administration’s position and that of big tech companies. This connection can be inferred from Rep. Joe Morelle’s statement, reported by POLITICO, claiming it is “no coincidence [Trump] acted less than a day after [Perlmutter] refused to rubber-stamp Elon Musk’s efforts to mine troves of copyrighted works to train AI models.” Finally, as reported by Authors Alliance, on April 30, “American Accountability Foundation urges President Trump to fire ‘deep state’ librarians, targeting Carla Hayden and Shira Perlmutter,” based on the claim that Hayden was supporting Biden policies, particularly in the areas of intellectual property and transgender rights. FAIR USE AT THE HEART OF THE DEBATE While the report addresses multiple issues, both legal and technical, the most debated (and anticipated) topics are those related to whether the use of protected content to train Generative AI systems qualifies as fair use. The fair use chapter is the longest in the report, comprising nearly half of its content. It includes a factor-by-factor analysis applied to different scenarios, with the USCO identifying the first and fourth factors as taking on particular prominence in the analysis. In the section titled “weighing the factors,” the Office states the following: “As generative AI involves a spectrum of uses and impacts, it is not possible to prejudge litigation outcomes. The Office expects that some uses of copyrighted works for generative AI training will qualify as fair use, and some will not. On one end of the spectrum, uses for purposes of noncommercial research or analysis that do not enable portions of the works to be reproduced in the outputs are likely to be fair. On the other end, the copying of expressive works from pirate sources in order to generate unrestricted content that competes in the marketplace, when licensing is reasonably available, is unlikely to qualify as fair use. Many uses, however, will fall somewhere in between.” (p.74) While there has been some agreement with certain parts of the report, such as the acknowledgment that litigation outcomes cannot be prejudged, and the view that “research and academic uses should be favored under the fair use analysis”, one of the most criticized aspects is the interpretation of the fourth factor in the fair use analysis, in which the Report concludes that original works created by AI that are not substantially similar to works used in the training may nonetheless result in “market dilution” that should weigh against a fair use analysis. According to USCO’s report: “While we acknowledge this is uncharted territory, in the Office’s view, the fourth factor should not be read so narrowly. The statute on its face encompasses any “effect” upon the potential market.373 The speed and scale at which AI systems generate content

Education

The Importance of Copyright Exceptions for Teachers and Learners

InfoJustice Eds. / 8 May, 2025

by Dr. Mugwena Maluleke, President of Education International (EI) and General Secretary of the South African Democratic Teachers’ Union (SADTU) On 21 May 2025, the Constitutional Court in South Africa will consider the constitutionality of the Copyright Amendment Bill passed by parliament in 2019 and again in 2024. The new Bill introduces exceptions and limitations to copyright to allow educators to copy, share and adapt excerpts of copyrighted learning materials in the classroom. In this contribution to the debate, Mugwena Maluleke highlights the education crisis facing millions of learners, especially in Africa and the Global South, and the importance of copyright reforms that increase access to learning materials. This article was first presented as a keynote input to the Conference on “Copyright and the Public Interest in Africa and the Global South on 6th Feb 2025 in Cape Town. You can watch the video recording of this presentation here. Dear colleagues, It is an honour to join you today in Cape Town as we reaffirm our shared mission of ensuring equitable access to knowledge and protection of traditional knowledge for Africa. Without reiterating much of what Dr. Schönwetter has eloquently stated in his welcoming address, I extend my gratitude to all those involved in hosting this conference and to all of you attending. Thank you for your commitment to copyright law reform. Reflecting on my childhood in rural Limpopo, we were compelled to learn in English and later in Afrikaans, which led us to stand against the apartheid government in 1976. We were never given the opportunity to learn in our own language. This experience underscores the profound impact that learning materials have on a child’s potential in school. In the quest for knowledge equity, every child deserves the right to learn in their own language. Today, I stand before you not only as the President of Education International but also as the General Secretary of the South African Democratic Teachers Union, representing more than 70% of educators and education workers in South Africa. Charles Darwin, the father of evolution, once said, “It is not the most intellectual of the species that survives; it is not the strongest that survives; but the species that survives is the one that is able best to adapt and adjust to the changing environment in which it finds itself.” The Global Status of Teachers Report, launched on the International Day of Education, January 24 this year, revealed a shocking shortage of 44 million teachers worldwide. A major catalyst for this shortage is the inability to attract and retain teachers due to inadequate conditions for providing quality teaching. Debrah Ruh, a global inclusivity strategist, noted that “accessibility allows us to tap into everyone’s potential.” UNESCO’s Framework for Action recognizes knowledge as part of the right to education for a reason: it is crucial for teachers to have access to teaching and learning materials specifically designed for educational purposes. Fair copyright legislation is essential to enable teachers to adapt and use materials, enrich them, make them context-specific, decolonize our knowledge production and consumption in education, and address an increasingly diverse student body. DECOLONISATION OF KNOWLEDGE and DECRIMINALISATION OF TEACHERS Having mentioned decolonisation of knowledge production and consumption in education, I must add that this implores us to embark on a journey of decolonisation, peeling back the layers of oppression that have been ingrained in our consciousness. This is not merely an act of dismantling the physical symbols of colonialism, but a profound transformation of our mental landscapes. As we lift the veils of ignorance and prejudice, we must replace them with the light of wisdom and understanding. Decolonisation is a reawakening, a reclamation of our heritage and identity. May I also add that education is the bridge that connects our past struggles to our future triumphs. The right to education is a fundamental human right. Our teachers should not be criminalised for striving to provide quality education to our children. Unfortunately, copyright laws for education are often overly restrictive, creating barriers for teachers and the right to education. Global EI research shows that teachers in many Latin American and African countries are particularly disadvantaged by copyright legislation, forcing them to work in legal grey zones or stop using important teaching materials. The use of digital materials and adaptations for children with disabilities poses a particular challenge for the teaching profession. Among 37 countries studied in a recent report by wireless connectivity specialist Airgain, South Africa ranks as one of the worst countries for digital readiness. THE GLOBAL EDUCATION CRISIS Recent studies highlight the urgent need for improved access to education. The 2025 Global Estimates Update by Education Cannot Wait reveals that 234 million school-aged children in crises worldwide require urgent support to access quality education, an increase of 35 million over the past three years. Refugees, internally displaced children, girls, and children with disabilities are among the most affected. The report emphasizes that these growing needs are rapidly outpacing education aid funding and calls for urgent additional financing to address this global silent emergency. Access to appropriate learning materials is a key strategy for achieving the first means of implementation (4a) under SDG4. The supporting Framework for Action Education 2030 highlights access to learning materials as one of the core strategic approaches for implementing the goal: “Education institutions and programs should be adequately and equitably resourced, with safe, environment-friendly, and easily accessible facilities; sufficient numbers of quality teachers and educators using learner-centered, active, and collaborative pedagogical approaches; and books, other learning materials, open educational resources, and technology that are non-discriminatory, learning conducive, learner-friendly, context-specific, cost-effective, and available to all learners – children, youth, and adults.” At the heart of Education International’s Go Public, Fund Education campaign is the principle of putting people before profit. The message is clear: we want creators and authors of material to be compensated fairly, but we do not want intermediaries in the copyright business, such as publishers and streaming executives, to create profit margins that deter access to learning materials

Africa: Copyright & Public Interest, Blog

South African apex court recognises the “constitutional imperatives of equality and dignity for persons with disabilities” in landmark copyright judgment

Sanya Samtani / 8 May, 2025

On 7 May 2025, the Constitutional Court of South Africa handed down judgment in Blind SA v President of the Republic of South Africa and Others [2025] ZACC 9 (‘Blind SA II’). The judgment read-in an immediately operational accessible format shifting provision for people with all disabilities across the spectrum as well as expressly providing for the cross-border exchange of accessible materials without the requirement of authorisation. In doing so, it gave effect to South Africa’s constitutional and international obligations to ensure that people with disabilities do not experience unfair discrimination (and other rights violations) – in this case, by the operation of copyright legislation. It also transformed South African law to align with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’) and, by addressing this provision to people with all disabilities, it went beyond Marrakesh’s “floor”, to fulfil its obligations under the South African Constitution and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Blind SA II is the latest major instalment in a long-standing – and ongoing – saga of South Africa’s copyright reform process that began over a decade ago. South Africa’s Copyright Act 98 of 1978 does not contain provisions that explicitly permit accessible format shifting. People with disabilities have thus had to expose themselves to criminal and civil sanction to access educational and cultural materials that are unavailable in accessible formats. On this basis, and due to the protracted reform process, Blind SA, represented by SECTION27, approached the High Court in 2021, arguing that the lack of such provisions in the Copyright Act constituted unfair discrimination against people with disabilities, and violated several rights in the Constitution’s Bill of Rights including the rights to equality, dignity, education, culture and freedom of expression. The High Court held that the Act was thus unconstitutional. The Constitutional Court confirmed the unconstitutionality of the Act to this extent in Blind SA v Minister of Trade and Industry and Others [2022] ZACC 33 (‘Blind SA I’). Writing elsewhere, I have conceptualised this as copyright discrimination. To remedy the constitutional defect, the Constitutional Court read-in a court-crafted provision (s 13A) that explicitly permitted accessible format shifting – but limited its scope of application to literary and artistic works and to people with visual and print disabilities only. Mindful of the ongoing legislative process, the Court suspended the declaration of invalidity and limited the reading-in remedy to a period of two years – after which it envisioned that the reform process would be concluded. However, on 21 September 2024, the remedy ordered by the Court in Blind SA I lapsed, creating – in the Court’s own words in Blind SA II – an “immediate rights vacuum affecting the constitutional rights of visually and print-impaired persons” [para 55]. Although Parliament had acted within the time frame set by the Court’s order by passing the Copyright Amendment Bill in February 2024, the President did not make a decision on whether to sign the Bill into law within the prescribed time frame. Following the lapsing of the remedy, Blind SA urgently approached the Constitutional Court seeking relief amongst other things on the basis that the scheme of copyright – and its criminal and civil consequences for infringement – required a clear statement of permitted acts that were exempted from infringement. Following the lapsing of the remedy, the legal position was unclear, creating uncertainty in the face of confirmed constitutional rights violations. Blind SA thus sought a re-reading in of the same remedy (s 13A) until the process concluded, or any other remedy that the Court considered just and equitable. Days after Blind SA’s application was filed, on 10 October 2024, the President triggered a rare constitutional mechanism, declining to sign the Bill into law and instead referring it to the Constitutional Court citing that two of his constitutional reservations, previously raised in 2020, when he referred a previous version of the Bill to Parliament, had not been fully accommodated by Parliament. Notably, his reservations did not concern the accessible format shifting and cross border exchange provisions (proposed s 19D of the Bill) [para 53]. In the words of the Court, “the provision maintains its constitutional integrity and remains separate from the concerns raised in the President’s referral”[para 57]. However, due to the fact that these provisions were part of the Bill being impugned by the President, they also remain in abeyance. The Court is now due to hear the matter concerning the President’s referral on 21 and 22 May 2025 (‘the Referral proceedings’) that will determine the eventual fate of the Copyright Amendment Bill. Meanwhile, the Constitutional Court held a hearing in November 2024 where it considered Blind SA’s application for urgent relief – in light of the President’s referral. As none of the parties disputed urgency, the hearing centred around what a just and equitable remedy would look like, given the circumstances. Subsequently, in an interim order dated 18 December 2024, to remain in force until the Court’s final judgment in the case, the Court read-in once again its remedy from Blind SA I (s 13A), effectively ensuring that people with visual and print disabilities could continue to engage in accessible format shifting without it being considered an infringement of copyright. The lacuna in the law was temporarily filled. This brings us to 7 May 2025. The Court handed down its judgment in Blind SA II summarising that back in 2022, “the constitutional defect that necessitated this Court’s intervention did not lie in any specific provision of the Copyright Act that needed to be struck down, but rather in the absence of necessary provisions to protect the rights of persons with visual and print disabilities”[para 47], and given the change in circumstances in 2025, when considering an appropriate just and equitable remedy “[t]he potential violation of fundamental rights emerges as the decisive consideration, particularly given the absence of certainty regarding the Bill’s eventual assent”[para