Copyright Infringement Lawyers Stuck Between OpenAI and NYT

In response to The New York Times’ recent copyright infringement lawsuit, OpenAI and its lawyers have dismissed the allegations as “without merit,” citing:

• Collaborations with news organizations and the creation of new opportunities
• AI training falls under the fair use legal doctrine
• Content reproduction is a rare bug
• The New York Times is lying

OpenAI has responded to the recent lawsuit filed by The New York Times, dismissing the allegations as “without merit.”

Quick recap. For the past year, for every achievement in the field of artificial intelligence we witnessed, we also had a front-row seat at a controversy, scandal, or just gesture of bad faith. Recently, however, the New York Times (NYT) sued OpenAI and Microsoft for using its copyrighted material to train its AI models. This is the first time an American media organization has dragged OpenAI to court. We’ve previously seen authors doing the heavy lifting through the Authors Guild. And at this point, it really doesn’t surprise anyone that courthouses have a revolving door for AI-related copyright infringement cases and lawyers, including Meta.

A lot is changing, and nobody seems to be able to get a grip without injuring someone else. A vicious cycle if you ask me.

Anyway, OpenAI’s answer to all of this is interesting. I wonder if its legal team is getting paid enough because oh boy…

In a blog post yesterday, OpenAI defended its position, pointing out its collaboration with news organizations, including partnerships with entities such as The Associated Press. The AI company believes that these agreements demonstrate its commitment to supporting and creating new opportunities for the journalism industry. Not going to lie, it’s giving “I’m not racist, I have [insert marginalized ethnic group here] friends.”

The company went as far as citing fair use law. If you didn’t know, fair use can be generally described as “any copying of copyrighted material done for a limited and “transformative” purpose.” Under this legal doctrine, a YouTuber, for example, can use snippets of a video when criticizing the video itself.

It’s a very thin line between fair use and intellectual theft. And OpenAI is Russian squat dancing on that thing, especially with “we provide an opt-out because it’s the right thing to do.”

Here’s the kicker. Addressing concerns about content reproduction, OpenAI acknowledged that “regurgitation” was a rare bug that they are actively working to eliminate. The company maintains, “We have measures in place to limit inadvertent memorization and prevent regurgitation in model outputs. We also expect our users to act responsibly; intentionally manipulating our models to regurgitate is not an appropriate use of our technology and is against our terms of use.”

And finally, the he-said-she-said in every lawsuit: NYT says ChatGPT “regurgitated” while OpenAI accuses NYT of constructing a false narrative and withholding the proof of content reproduction.

OpenAI’s whole argument boils down to the public domain not being enough to train the AI. So, what it did was justifiable.

Nick Holmes, Director Trademark Practice at Caldwell, told Inside Telecom that he anticipates a Supreme Court case that could shape the AI and copyright landscape. As he puts it, “Legally, no matter who prevails, the “fair use” doctrine and definition of a derivative work will almost certainly be modified. This doctrine and type of work was written well before the implantation of [AI], and it would not be surprising for there to be a carve-out of how the doctrine and definition of a derivative work apply to Artificial Intelligence.”

Let’s say for argument’s sake that what it did was in fact copyright infringement, but they are right about the public domain lacking sustenance for the AI. Are you allowed to commit intellectual theft in the name of technological innovation?

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