OpenAI prepares for a legal battle with New York Times and authors over the ‘fair use’ of copyrighted works.

The future of ChatGPT and other artificial intelligence products that heavily rely on copyrighted human works will be put to the test through a series of high-profile lawsuits in a federal court in New York. These legal actions will determine the fate of these AI technologies, which owe their eloquence to the vast amount of copyrighted content they have consumed.

But do AI chatbots — in this case, the widely commercial products made by OpenAI and its business partner Microsoft — violate copyright and fair competition laws? Professional writers and the media face an uphill battle to win this argument in court.

“I would like to be optimistic for the authors, but I am not. I just think they have an uphill battle here,” said copyright lawyer Ashima Aggarwal, who previously worked at academic publishing giant John Wiley & Sons.

One comes from The New York Times. Another of the well-known authors such as John Grisham, Jodi Picoult and George R.R. Martin. A third from best-selling nonfiction authors, including the author of the Pulitzer Prize-winning biography on which the hit movie “Oppenheimer” was based.

COURT ATTENDANCES

Each lawsuit makes different claims, but they all center on San Francisco-based OpenAI, which “built this product on other people’s intellectual property,” said attorney Justin Nelson, who represents data writers and whose law firm also represents The Times.

“OpenAI says they have a free ride to take anyone else’s intellectual property really since the beginning of time, as long as it’s been on the Internet,” Nelson said.

The Times sued in December, alleging that ChatGPT and Microsoft’s Copilot are competing with the same outlets they are trained on, driving online traffic away from newspapers and other copyright holders who depend on advertising revenue from their sites to continue producing their journalism. It also provided evidence that chatbots were spitting out Times articles word for word. At times, the chatbots attached false information to the paper in a way that damaged its reputation.

One senior federal judge is presiding over all three cases so far, along with a fourth from two other nonfiction writers who filed another suit last week. U.S. District Judge Sidney H. Stein has served on the Manhattan court since 1995, when he was appointed by then-President Bill Clinton.

ANSWER

OpenAI and Microsoft have yet to file formal counterarguments in the New York cases, but OpenAI issued a public statement this week calling The Times’ lawsuit “without merit” and saying the chatbot’s ability to regurgitate some articles verbatim was “rare.” bug.”

“Training AI models using publicly available Internet materials is a fair use supported by long-standing and widely accepted precedents,” the company said in a blog post on Monday. Furthermore, it suggested that The Times “either told the model to pray or picked their example from many companies”.

OpenAI cited licensing agreements with the Associated Press, German media company Axel Springer and other organizations last year that provided an overview of how the company is trying to support a healthy news ecosystem. OpenAI will pay an undisclosed fee to license AP’s news archive. The New York Times had similar discussions before deciding to sue.

OpenAI said earlier this year that access to AP’s “high-quality, factual text archive” would improve the capabilities of its AI systems. But its blog post this week downplayed the importance of news content in AI training, arguing that large language models learn from “a vast body of human knowledge” and that “no single source of information — including The New York Times — is significant to the model’s intended learning.”

WHO WINS?

Much of the AI industry’s argument is based on the “fair use” doctrine of US copyright law, which allows limited uses of copyrighted material, such as in teaching, research, or converting a copyrighted work into something else.

In response, the legal team representing The Times wrote on Tuesday that OpenAI and Microsoft are not fair use in any way because they are taking the newspaper’s investment in its journalism “to build substitute products without permission or payment.”

So far, the courts have largely sided with tech companies in interpreting how copyright laws should treat artificial intelligence systems. Following the visual artists’ defeat, a federal judge in San Francisco last year dismissed much of the first major lawsuit against AI image generators. Another California judge has shot down comedian Sarah Silverman’s claims that Facebook parent Meta infringed on the text of her memoir to build its AI model.

Recent lawsuits have provided more detailed evidence of the alleged harms, but Aggarwal said that when it comes to using copyrighted content to train AI systems that provide users with “a little bit of that, the courts just don’t seem inclined to find that to be copyright infringement.”

Tech companies point to Google’s success in beating legal challenges to its online book library as a precedent. In 2016, the US Supreme Court upheld lower court rulings that rejected the authors’ claim that Google’s digitization of millions of books and showing excerpts from them to the public constituted copyright infringement.

But judges interpret the criteria for fair use on a case-by-case basis and it’s “actually very fact-based” depending on economic impact and other factors, said Cathy Wolfe, a director at Dutch-based Wolters Kluwer who also serves on the board of the Copyright Clearance Center, which helps negotiate licenses for print and digital media Stateside

“Just because something is free on the Internet, on a website, doesn’t mean you can copy it and email it, much less use it for commercial business,” Wolfe said. “I don’t know who will win, but I’m definitely in favor of copyright protection for all of us. It promotes innovation.”

OUTSIDE THE COURT

Some media and other content creators are looking outside the courts, calling on lawmakers or the US Copyright Office to strengthen copyright protections in the AI age. A panel of the U.S. Senate Judiciary Committee will hear statements from media executives and attorneys Wednesday at a hearing devoted to the impact of artificial intelligence on journalism.

Roger Lynch, CEO of the Conde Nast magazine chain, plans to tell senators that generative AI companies are “using our stolen intellectual property to build replacement tools.”

“We believe the legislative fix may be simple — to clarify that use of copyrighted content in connection with commercial Gen AI is not fair use and requires a license,” says a copy of Lynch’s prepared remarks.

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