The New York Times has filed a civil lawsuit against Microsoft and OpenAI, alleging researchers used proprietary news articles published by the newspaper to train various artificial intelligence tools.
In a complaint filed in federal court this week, lawyers representing the Times claimed Microsoft and OpenAI’s alleged use of its news reporting to train AI-based tools like ChatGPT and Copilot was without authorization and resulted in an unfair competitive advantage.
To the latter point, the Times argues that users of ChatGPT, Copilot and other tools who perform search queries on various topics are unlikely to visit the Times website if the same information is available natively through AI services developed by OpenAI and owned by Microsoft.
The complaint comes at a time when publishers have grown vocal in their complaints that so-called “Big Tech” companies like Microsoft, Google and Facebook parent Meta are launching information tools that deprive news organizations of much-needed revenue.
Corporate news organizations, like the Times, rely on a mixture of subscription and advertising revenue to keep their operations afloat. They believe services like Google Search, Facebook’s news feed and ChatGPT leverage information found on news websites, then deliver the same information to users natively, and without any incentive to visit a news outlet’s website directly.
In its lawsuit, the Times says it wants compensatory damages from Microsoft and OpenAI, an injunction to prevent the companies from using its proprietary news content, and a demand that Microsoft and OpenAI destroy all articles and other material obtained from the Times.
“Times journalism is the work of thousands of journalists, whose employment costs hundreds of millions of dollars per year,” a Times lawyer wrote in the legal complaint. “Defendants have effectively avoided spending the billions of dollars that The Times invested in creating that work by taking it without permission or compensation.”
Microsoft has not yet commented on the suit, but a spokesperson for OpenAI affirmed the company “respect[s] the rights of content creators and owners, and [we] are committed to working with them to ensure they benefit from AI technology and new revenue models.”
“Our ongoing conversations with the New York Times have been productive and moving forward constructively, so we are surprised and disappointed with this development,” the spokesperson said. “We’re hopeful that we will find a mutually beneficial way to work together, as we are doing with many other publishers.”
ok, I've now read the full NYT complaint filed this morning vs OpenAI and Microsoft. I'm impressed – it's future-focused around fair value for work vital to democracy. It also contains 220k pages of exhibits although the pages of Ex J stood out to me. more on that in a minute. /1 pic.twitter.com/e394EZYCed
— Jason Kint (@jason_kint) December 27, 2023
The Times lawsuit could set up an interesting legal challenge to an exception in federal copyright law known as the “Fair Use Doctrine.” The exception essentially grants a waiver of copyright if material is used for certain purposes, such as teaching, commentary, criticism or some types of news reporting.
Whether a company’s use of copyrighted works falls under the Fair Use Doctrine is a matter that is open to interpretation, which is weighed based on the nature of the copyrighted work, how much of a copyrighted work is used by another person or group, and “the effect of the use upon the potential market for or value of the copyrighted work.”
The use of copyrighted materials to train AI tools like Copilot and ChatGPT is uncharted territory, to the point that the U.S. Copyright Office issued a notice several months ago asking for public comment on the matter.
“We launched this initiative at the beginning of the year to focus on the increasingly complex issues raised by generative AI,” Shira Perlmutter, the director of the U.S. Copyright Office, said in a statement. “This [notice of inquiry] and the public comments we will receive represent a critical next step. We look forward to continuing to examine these issues of vital importance to the evolution of technology and the future of human creativity.”
The public comment period closed in mid-October.