Industry & Advocacy News
January 2, 2024
The Authors Guild is pleased that The New York Times is seeking to vindicate its rights against OpenAI and Microsoft. The New York Times filed a lawsuit on December 27 against Microsoft and OpenAI for copyright infringement based on the companies’ use of the Times’ articles and content in training of the GPT artificial intelligence systems. The lawsuit is the third of its kind against OpenAI and Microsoft filed in the U.S. District Court for the Southern District of New York, following a class action suit filed on December 19 by a group of nonfiction authors (represented by the same law firm as the Times), and the Authors Guild-led class action suit filed on September 20.
The complaint alleges that OpenAI used datasets with scraped content from the Times and removed copyright management information, arguing that OpenAI’s “commercial success is built in large part on … large-scale copyright … [including] numerous reproductions of copyrighted works owned by the Times in the course of ‘training’ the LLM.” It goes on to state that both OpenAI and its partner and investor Microsoft have “profited from the infringement,” attributing OpenAI’s astronomical $90 billion valuation and the success of Microsoft’s GPT-powered tools such as Azure and CoPilot to the unauthorized use of copyrighted works, including the Times’ content.
The complaint includes several examples of ChatGPT and Bing Chat reproducing near verbatim text from Times articles in response to user prompts. For example, when prompted, ChatGPT was able to reproduce word-for-word large portions of a five-part Pulitzer Prize-winning series on predatory lending in New York City’s taxi industry, the product of an 18-month investigation by the Times’ journalists, which included 600 interviews, records requests, large-scale data analysis, and the review of thousands of pages of internal bank records and other documents.
In another example, plaintiffs showed that ChatGPT was able to reproduce a 2012 series on how outsourcing by the tech industry had transformed the global economy. The complaint also states that in April 2023, the Times had reached out to OpenAI “to raise intellectual property concerns and explore the possibility of an amicable resolution, with commercial terms and technological guardrails that would allow a mutually beneficial value exchange,” but the discussions were unsuccessful in resolving the concerns expressed by the Times about use of its content.
As the complaint states, “Independent journalism is vital to our democracy. It is also increasingly rare and valuable.” As we know, journalism, especially local journalism, is in crisis. News publications have lost much of their revenue in recent years because so many readers access news through third-party online platforms rather than subscriptions and those platforms grab most of the advertising revenue. The unlicensed use of this copyrighted content by AI companies has the potential to exasperate those losses and threaten the provision of this important journalism.
As part of its relief, the Times has asked to be awarded damages for infringement, an injunction against unauthorized and infringing uses, and the “destruction … of all GPT or other LLM models and training sets that incorporate Times works.” A win would put more money back into the hands of the Times and other news publications rather than provide an unearned windfall to AI companies, as is now the case. Those funds, we hope and expect, will be invested in staff and freelance journalists to further the Times’ mission “to seek the truth and help people understand the world.”
For questions about The New York Times Company v. OpenAI, please contact Rohit Nath, rnath@susmangodfrey.com, or Justin Nelson, jnelson@susmangodfrey.com, at Susman Godfrey.
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