All the News That's Fit to Pinch: NYT v. OpenAI Could Be Most Troublesome of AI Copyright Cases

Perhaps the most troublesome of all so far is the new complaint filed by The New York Times alleging that OpenAI, Microsoft and others committed copyright infringement in training its Generative Pre-Trained Transformer (GPT) systems and wrongfully attributing false information to The Times via the output from systems such as ChatGPT and Bing Chat. The New York Times Co. v. Microsoft Corp., No. 1:23-cv-11195 (S.D.N.Y.) The Times asserts claims for direct as well as vicarious and contributory copyright infringement, unfair competition, trademark dilution, and violation of the Digital Millennium Copyright Act — Removal of Copyright Measurement Information (17 U.S.C. §1202). Among other things, the complaint alleges that GPT not only copied published articles verbatim but could be prompted to offer up content that is normally protected by The Times' paywall. The complaint cites several such examples of nearly verbatim copying of large sections of articles and includes screenshots of GPT delivering up the first paragraphs of articles as well as ensuing paragraphs when prompted to do so. The complaint alleges that the "training" of the program included storing encoded copies of the works in computer memory and repeatedly reproducing copies of the training dataset, such that millions of The Times works were "copied and ingested — multiple times — for the purpose of 'training" Defendants' GPT models." The Times further alleges that when OpenAI's chatbots are not revealing verbatim copying, they instead (when actual content is not available) entirely fabricate "hallucinations" — inventing and misattributing to The Times content that it did not publish.

The Times warns of threats to the journalism industry at large for the type of "infringement ridden" and unlawful use by the defendants, exacerbating substantial existing threats to digital readership. The alleged wrongful profits of the defendants and harm to The Times are manifold, including: generating revenue to defendants from paying customers of the GPT products in place of appropriately paying The Times; providing substantial savings by taking and using The Times's content at no cost (absent a licensing agreement), and denying such revenue to The Times for material otherwise requiring paid access.