Ai Copyright Case Analysis

Help me with legislation on one case

The New York Times has sued OpenAI and Microsoft for the unpermitted use of Times articles to train GPT large language models. The case could have a significant impact on the relationship between generative AI and copyright law, particularly with respect to fair use, and could ultimately determine whether and how AI models are built. But the complaint is noteworthy for another reason. The Times has been here before — not as plaintiff but as defendant. Less than three decades ago, in New York Times Co. v. Tasini, the publisher fought against a group of its own freelance authors. There, it enlisted a strategy contradictory to the one it deploys today. Indeed, comparing the Times’s complaint against OpenAI and Microsoft to the defense it mounted in Tasini reveals a stark about-face. In Tasini, the Times explicitly prioritized its own financial interests over those of its authors; now, the publisher is relying on a theory of romantic authorship — one that champions the “creative and deeply human” work of journalists — to justify its claims. The Times also argued — though the Tasini Court disagreed — that technological development would be irrevocably thwarted by a win for the freelancers. But today, the Times is entirely unsympathetic to the analogous threat its suit poses to AI companies. The publisher’s change of heart illustrates the persistent challenges of balancing technological development against private intellectual property interests, but it also suggests that, as a plaintiff, the Times ought to be more flexible in its demands for relief in this case. The facts underlying the Times’s current complaint center around the use of copyrighted works in the development of generative AI tools, namely OpenAI’s ChatGPT and Microsoft’s Bing Chat (or “Copilot”), both of which are built on top of OpenAI’s GPT model. These tools are large language models (LLMs), which are built by “training” on massive corpora of text. The models incorporate information from these datasets and “learn” the patterns of words within a given context. Then, when queried, the LLM can predict the most likely combination of words, generating a natural-language response to the user’s prompt. The latest models of GPT are trained on trillions of words — a dataset so big that it would be “the equivalent of a Microsoft Word document that is over *.* billion pages long.” At the root of the Times’s complaint is that this dataset contains a “mass of Times copyrighted content.” The Times’s core allegation is that OpenAI is infringing on copyrights through the unlicensed and unauthorized use and reproduction of Times works during the training of its models. But the problem is amplified in two ways. First, LLMs sometimes “memorize” parts of the works included in training data. When this happens, the models can occasionally generate near-verbatim reproductions of the works. Second, and relatedly, LLMs produce “synthetic” search results that, when prompted, can reproduce “significantly more expressive content from [an] original article than what would traditionally be displayed” by an online search, effectively allowing readers to circumvent the Times’s paywall. These problems, according to the Times, present a significant threat to high-quality journalism. If readers can easily and at no cost generate summaries — or near-verbatim reproductions — of Times works using GPT models, it will “obviate the need” to purchase access through the Times itself, hamstringing the publisher’s ability to continue funding its journalism. If this happens, “the cost to society will be enormous.” In fact, the Times begins its complaint by emphasizing that “[i]ndependent journalism is vital to our democracy” and is “increasingly rare and valuable.” By contrast, OpenAI is described as nothing better than “a multi-billion-dollar for-profit business built in large part on the unlicensed exploitation of copyrighted works.” In constructing its complaint around themes of the public good and in painting the dispute as a sort of battle between “good and evil,” the Times is drawing, in part, on a particular narrative of copyright that prioritizes “originality, creativity, and individuality” — what scholars refer to as “romantic authorship.” By highlighting the talent, expertise, and effort of its journalists throughout the complaint, the Times can be understood as positioning itself as a sort of gladiator for the romantic authors it employs

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