It’s important in the fair use assessment to understand that the training itself is fair use, but the pirating of the books is the issue at hand here, and is what Anthropic “whoopsied” into in acquiring the training data.
Buying used copies of books, scanning them, and training on it is fine.
Rainbows End was prescient in many ways.
But nobody was ever going to that, not when there are billions in VC dollars at stake for whoever moves fastest. Everybody will simply risk the fine, which tends to not be anywhere close to enough to have a deterrent effect in the future.
That is like saying Uber would have not had any problems if they just entered into a licensing contract with taxi medallion holders. It was faster to just put unlicensed taxis on the streets and use investor money to pay fines and lobby for favorable legislation. In the same way, it was faster for Anthropic to load up their models with un-DRM'd PDFs and ePUBs from wherever instead of licensing them publisher by publisher.
Judge: "But this app facilitated them."
Lawyer: "Well, you presume so-called genuine carpoolers are not facilitated? The manufacturers of their cell phones, the telecom operators, their employers or the bar where they met, or the bus company at whose bus stop they met, they all facilitated their carpooling behavior."
Judge: "But your company profits from this coordination!"
Lawyer: "Well we pay taxes, just like the manufacturer of the cell phone, the telecom operator, their employers, the bus company or the bar... But let's ignore that, what you -representing the government (which in turn supposedly represents the people)- are really after is money or power. As a judge you are not responsible for setting up the economy, or micromanaging the development of apps, so its not your fault that the government didn't create this application before our company did. In a sense you are lucky that we created the app given that the government did not create this application in a timely fashion!"
Judge: "How so?"
Lawyer: "If the population had created this app they would have started thinking about where the proceeds should go. They would have gotten concerned about the centralization of power (financial and intelligence). They would have searched for ways to decentralize and secure their app. They would have eventually gotten cryptographers involved. In that world, no substantial income would be generated, your fleet of taxi's would be threatened as well, and you wouldn't even have the juicy intel we occasionally share either!"
This conversation almost never takes place, since it only needs to take place once, after which a naive judge has learned how the cookie crumbles. Most judges have lost this naivety before even becoming a judge. They learn this indirectly when small "annoyances" threaten the scheme (one could say the official taxi fleet was an earlier such scheme).