It is of course true that it is unsettled law, and that fair use is more complicated than my offhand comment suggested.
> Courts have never once accepted "it would be impossible for defendant to write his biography without reading plaintiff's" as valid, and it's been tried. The standard for plagiarism is higher than that.
This I think misses the thrust of my argument, though. Its hard to find an exact human analogy, because neither the technology nor the scale at which it operates is remotely human.
I see it less as “writing his biography without reading the plaintiff’s” and it’s more “using the same style and metaphors to make thousands of copies of very similar biographies, with certain bits tweaked,” like turning an existing work into mad lib.
I don’t know how the courts will eventually rule on it, but it certainly feels like theft to me.