The New York Times v OpenAI and Microsoft: An Infringement of Copyright?

Introduction

The New York Times has initiated legal proceedings against OpenAI and Microsoft for allegedly using its content, without authorisation, to train Artificial Intelligence models such as ChatGPT. The New York Times claims this practice infringes its copyrights and undermines its business model by allowing users to bypass its paywall, potentially reducing revenue. OpenAI and Microsoft argue that AI training on such content is akin to human learning.

The Argument advanced

The New York Times asserts that OpenAI and Microsoft have used the newspaper’s content to advance their AI platforms in the absence of approval. By training programmes such as ChatGPT on a vast corpus of data containing the NYT’s articles, the AI-generated summaries delivered closely mimmic the original sources. As such, the New York Times claims this practice infringes on its copyrights and jeopardises its business model by enabling users to avoid its paywall, thereby diminishing subscription and advertisement revenue.

The New York Times argues that the AI's capability to replicate its content poses a significant threat to quality journalism, which relies heavily on subscription fees for financial sustainability. The lawsuit seeks several remedies, including compensation, a permanent injunction against further use of New York Times material, and even the destruction of models that have been trained on their data.

Tasini case

The New York Times' current stance contrasts sharply with its position in the 2001 case, New York Times Co. v Tasini. In Tasini, the New York Times fought against freelance writers for including their articles in digital databases without permission, while arguing that enforcing freelancers' copyrights would harm technological progress and delete valuable digital archives. The US Supreme Court was not persuaded by the NYT’s claim. The Court acknowledged the copyright privileges enjoyed by the freelance writers and decided in their favour.

This historical context is crucial as the New York Times, which once prioritised technological advancement over authors' rights, now focuses on protecting its copyrights and the "creative and deeply human" work of its journalists.

Legal Impact of copyright infringement

This case has significant implications for copyright law, particularly concerning the use of copyrighted materials to train AI models. If the Supreme Court decision establishes that using copyrighted content for AI training without authorisation constitutes infringement, AI companies would need to obtain licenses or face legal consequences. Such a ruling would enhance legal certainty and set a precedent for future AI and intellectual property rights cases.

Impact on journalism

Conversely, as the New York Times' business model relies heavily on subscription fees and ad revenue from website traffic, a decision in favour of OpenAI and Microsoft could result in severe financial loss for the NYT. A ruling in favour of the defendants might reduce the need for users to visit the NYT’s site as they can rely on the AI-generated summaries instead. A decline in revenue may lead to budget cuts, impacting on the newspaper’s ability to carry out in-depth investigative journalism. Ultimately, this would undermine the quality of journalism delivered.

Conclusion

The final decision in New York Times v OpenAI is likely to set a new precedent regarding the use of copyrighted materials in AI training and shape future relationships between developers and content creators. More broadly, this case may influence practices regarding the enforcement of intellectual property rights in the AI industry.

By Agnes Tsang