The New York Times/OpenAI lawsuit: fair use or copyright abuse?

"There has been a litany of cases related to copyright infringement by AI companies. The points OpenAI raises around fair use are yet to be settled and will rely on an interpretation of US law. Generally, copyright legislation was not written with current AI scenarios in mind. Much will therefore depend on the court’s chosen interpretation. Given the inherent uncertainty on the issues, it seems that there is a case for OpenAI to answer.

"Although this US case would not set a direct legal precedent to be applied in other jurisdictions, given the US-centric nature of the AI industry, and the global prominence of the parties to this dispute, a US decision on the issues will likely have a significant influence on the approach to the regulation of AI systems internationally.

"There are some noticeable omissions in OpenAI’s response. For example, when setting out its position in relation to the US concept of ‘fair use’, OpenAI alludes to the right under EU law that permits Text and Data Mining (TDM). However, OpenAI does not consider the limitations to that right, notably that it only applies to “lawfully accessible works”.

"In light of this, it is important to note that The New York Times has a paywall to access articles. OpenAI also doesn’t state whether, when scraping training data from the internet, it considers opt-outs that are not expressed in its required technical format. It is also not clear how OpenAI treats information that may have been made available online by a third party unlawfully (e.g., when a third-party website unlawfully publishes a copy of a New York Times article), which ChatGPT is then trained on. This was a key issue raised by The Authors Guild in a separate lawsuit brought against OpenAI earlier in 2023. These will likely be crucial points for the US court to take into account when assessing ‘fair use’.  

"OpenAI highlights its ongoing discussions and arrangements with other news organisations, and discussions with The New York Times until the end of 2023. There is a risk of sending mixed messaging here: on the one hand OpenAI says it does not need the permission of the news organisations to train on their news articles (on the basis of alleged ‘fair use’), whilst on the other hand it enters discussions to obtain those permissions.  

"Some of OpenAI’s responses, such as the contention that The New York Times’ articles were only ‘regurgitated’ under very specific conditions, raise the question of what (if any) damage The New York Times has suffered, rather than whether OpenAI infringed their IP or harmed their reputation in the first place. The less people have seen or accessed the ‘harmful’ content, the less likely it is that The New York Times could recover substantial damages for the infringement."

Nick's comments were published in Press Gazette, 11 January 2024.