OpenAI Says NYT Suit Not Up To Own 'Journalistic' Standards

(February 27, 2024, 6:41 PM EST) -- OpenAI slammed The New York Times Co. for not meeting "its famously rigorous journalistic standards" with its complaint accusing the artificial intelligence company and Microsoft Corp. of ripping off Times content to train ChatGPT, with OpenAI alleging the newspaper hired a hacker to generate various examples of ChatGPT reproducing near-verbatim copies of articles.

OpenAI made the accusation Monday in federal court in Manhattan, asking a judge to dismiss the bulk of the newspaper's complaint while sounding an optimistic note that the fair use doctrine will help AI developers prevail in several pending lawsuits nationally where the companies are accused of taking copyrighted works to train their models.

"OpenAI and the other defendants in these lawsuits will ultimately prevail because no one — not even [The] New York Times — gets to monopolize facts or the rules of language," OpenAI said. "For good reason, there is a long history of precedent holding that it is perfectly lawful to use copyrighted content as part of a technological process that (as here) results in the creation of new, different, and innovative products."

The Times sued Microsoft and OpenAI in December, after months of trying to enter into a licensing agreement, alleging that ChatGPT unlawfully reproduced newspaper content in response to user queries.

"The truth, which will come out in the course of this case, is that the Times paid someone to hack OpenAI's products. It took them tens of thousands of attempts to generate the highly anomalous results that make up" the paper's examples of ChatGPT's reproducing the newspaper's content.

OpenAI added that the Times used "deceptive prompts that blatantly violate OpenAI's terms of use," to get the results they wanted for their lawsuit.

Lead counsel for the Times pushed back at OpenAI's hacking allegation. 

"What OpenAI bizarrely mischaracterizes as 'hacking' is simply using OpenAI's products to look for evidence that they stole and reproduced The Times's copyrighted works. And that is exactly what we found," said Ian Crosby, a partner at Susman Godfrey LLP, in a statement to Law360 on Tuesday. "In fact, the scale of OpenAI's copying is much larger than the 100-plus examples set forth in the complaint."

Microsoft's response to the Times' lawsuit is due Monday.

OpenAI also criticized the Times' assertion that large-language models like ChatGPT pose a danger to its business model and noted that OpenAI is open to establishing partnerships with news organizations, citing an agreement with The Associated Press as an example.

"The Times's suggestion that the contrived attacks of its hired gun show that the Fourth Estate is somehow imperiled by this technology is pure fiction," OpenAI said. "So too is its implication that the public en masse might mimic its agent's aberrant activity."

Crosby said in his statement that OpenAI's deals with news organizations "only confirms that they know their unauthorized use of copyrighted work is far from 'fair.'"

In its motion to dismiss, OpenAI urged the court to toss claims of direct infringement, contributory copyright infringement, removal of copyright management information, or CMI, and unfair competition by misappropriation.

OpenAI argued the claim for direct infringement is time-barred because it relates to training datasets that are more than three years old. Crosby took issue with that argument. 

"OpenAI, which has been secretive and has deliberately concealed how its products operate, is now asserting it's too late to bring a claim for infringement or hold them accountable. We disagree," Crosby said in his statement. "It's noteworthy that OpenAI doesn't dispute that it copied Times works without permission within the statute of limitations to train its more recent and current models."

OpenAI said the contributory copyright infringement claim also fails because the newspaper "must allege that OpenAI 'had knowledge' of the Times's creation of those outputs" from ChatGPT. In addition, OpenAI argued the CMI claim also fails because The Times has not specified the CMI at issue and the newspaper has not shown it was injured by the alleged violation.

"Here, the complaint's 'Harm to the Times' section relates entirely to its inability to receive speculative licensing revenue, and the possibility that ChatGPT will 'divert readers,'" OpenAI said.

Lastly, OpenAI said the claim of unfair competition by misappropriation is preempted by the Copyright Act.

If OpenAI succeeds in dismissing the four claims in its motion, the remaining causes of action would be vicarious copyright infringement against Microsoft and OpenAI, contributory copyright infringement against Microsoft and trademark dilution against both companies.

The Times is represented by Elisha Barron, Ian Crosby, Davida Brook, Ellie Dupler and Tamar Lusztig of Susman Godfrey LLP and Steven Lieberman, Jennifer B. Maisel and Kristen J. Logan of Rothwell Figg Ernst & Manbeck PC.

Microsoft is represented by Annette Louise Hurst and Christopher Cariello of Orrick Herrington & Sutcliffe LLP.

OpenAI is represented by Allison Levine Stillman, Andrew Gass, Joseph Richard Wetzel Jr., Sarang Damle and Luke Budiardjo of Latham & Watkins LLP and Joseph C. Gratz and Rose Lee of Morrison & Foerster LLP.

The case is New York Times Co. v. Microsoft Corp. et al., case number 1:23-cv-11195, in U.S. District Court for the Southern District of New York.

--Editing by Andrew Cohen.

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