I have spent recent months talking about cases involving AI developers’ use of preexisting content for training their platforms. The plaintiff in these cases often is a group of copyright owners, e.g., visual artists or writers. That paradigm decidedly shifted when the New York Times filed suit against OpenAI (creator of ChatGPT and other AI platforms) and Microsoft (an OpenAI investor), claiming their AI was using millions of news stories without permission. This is the first of what is likely to be several major media organizations taking action to protect its’ content or get paid for its use.
The complaint
The 172-year-old media giant with 9.41 million digital subscribers and 670,000 print readers filed its complaint in Manhattan federal court, claiming that OpenAI is trying to get a “free ride” in using the company’s massive backlog of content and its continued investment in creating one of the most respected and reliable news organizations in the world. The company alleges that the defendants take the Times’ rigorously reported and vetted information by respected journalists and editors and feed it into the platform, which can then use the datasets to deliver a version of the same or similar information to users. Copyright law does not protect information, but in some instances it protects the selection, coordination, and arrangement of information, and copyright generally protects the expression of information (original writing) In delivering that information, OpenAI is a competitor in distributing news and information to customers, in some instances by supplying near-verbatim copies of its articles. It also claimed that ChatGPT created two reviews of office chairs attributed to non-existent product reviews by the Times’ Wirecutter website.
Defense cites “fair use” doctrine
OpenAI responded and, among other defenses, will be claiming fair use.
The lawsuit was filed after talks between the two sides broke down. OpenAI claimed that it thought that negotiations were going well and that it was blindsided by the lawsuit. The lawsuit does not cite specific damages, but it could be in the billions of dollars. OpenAI’s parent company is a non-profit (OpenAI, Inc.), but OpenAI, LP is a for-profit subsidiary valued at more than $80 billion. Microsoft invested $13 billion for a 49% stake in OpenAI, LP.