AI: Copyright Challenges Now Include a New York Times Lawsuit

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The lawsuit of OpenAI and Microsoft by The New York Times parallels legal actions from the book publishing industry.

Image – Getty iStockphoto: Lagarto Film

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

Could the Times’ Suit Become a Landmark Case?
In the still of the week between Christmas and New Year’s Day, The New York Times ran its story announcing its lawsuit of OpenAI and Microsoft over what the Times claims is millions of its articles “used to train chatbots that now compete with it.”

“If the Times and other news organizations cannot produce and protect their independent journalism, there will be a vacuum that no computer or artificial intelligence can fill.”New York Times court filing

As Michael M. Grynbaum and Ryan Mac write in the December 27 story, “The Times is the first major American media organization to sue the companies, the creators of ChatGPT and other popular AI platforms, over copyright issues associated with its written works.

The lawsuit, filed in Federal District Court in Manhattan, contends that millions of articles published by the Times were used to train automated chatbots that now compete with the news outlet as a source of reliable information.”

Particularly in light of the European Union’s “AI Act” agreement on December 9—the first comprehensive legislation of its kind, expected to be a model for many world markets beyond Europe—the Times’ court action is thought by many to have the potential to mount the first heavyweight opposition to what many in publishing believe is rampant copyright infringement in the development of the large language models on which many generative AI systems are built.

In the United Kingdom, the Society of Authors—that nation’s trade union for writers, including many journalists—issued an appeal on Tuesday (January 2) asking its membership to begin characterizing the writing community’s use of, and views on, generative artificial intelligence. “The questions [in a newly opened survey of the membership] cover attitudes towards using generative AI as part of the creative process and the copying of creative works to develop these systems.”

The UK survey is open until January 31 and is being used to help the Society’s administration develop its policy work on generative AI and its use of copyrighted material. “These systems are developed by importing large quantities of written and visual work,” the Society writes, “including hundreds of thousands of books and millions of images, usually without permission. This has involved the use of many copyright-protected works, but the true scale of this piracy is unclear as there is a complete lack of transparency from developers regarding the works copied.”

Until now, there have of course been efforts from the writers’ corps to sue OpenAI. A prominent one has been led by the United States’ Authors Guild, the membership of which also includes journalists. The Guild announced its class-action lawsuit with authors John Grisham, Jodi Picoult, David Baldacci, George RR Martin and others, court filings for that one having been made on September 20.

Authors Guild CEO Mary Rasenberger—an attorney with experience in the United States Copyright Office—on December 7 was onstage at Wired magazine’s 30th-anniversary LiveWired event. In her comments, she deflected the defensive assertions many in the AI development community make that training AI on copyrighted content is somehow legitimate as fair use.

Mary Rasenberger

Gregory Barber in his report at Wired on the event quotes Rasenberger’s comments on behalf of the some 12,000 Authors Guild members: “Rasenberger scoffed at the suggestion of a balance of power between tech players and the authors she represents,” he writes, “comparing the US$20,000 per year average earnings for full-time authors to the recent $90 billion valuation of OpenAI.

“‘They’ve got the money. The artist community does not,’ she said.”

The Guild, in fact, frequently has produced clear benefits for its membership through the efforts of its legal staff and is by no means an outfit to be dismissed when it mounts a suit like the celebrity-author studded filing it made in September.

But as some observers are saying, the entry of the Times into litigation in AI issues may move the efforts of many culturally based professionals and their organizations into a newly bolstered position because of that news medium’s prominence, wealth, top-notch legal division, and track record.

‘Rooted in Copyright Law’

Jeremy Kahn, writing for Fortune on Tuesday (January 2), notes, “The Times alleges that tens of thousands of its articles were copied, without its permission, in the process of training the GPT models that underpin OpenAI’s ChatGPT and Microsoft’s CoPilot (formerly called Bing Chat). It also alleges that ChatGPT and CoPilot allow users to further infringe on the Times’ copyrights by producing text that plagiarizes Times articles.

“It argues that the integration of OpenAI’s GPT models with web browsing and search tools steals commercial referrals and traffic from the newspaper’s own website. In a novel claim for this sort of case, the publisher also alleges its reputation is damaged when OpenAI’s models hallucinate, making up information and falsely attributing it to the Times.”

And Jason Kint, CEO of Digital Content Next, has produced a 15-post thread on X, formerly known as Twitter, with some of the 100 or so examples of OpenAI’s ChatGPT-4 output the Times alleges in its court filings’ exhibits that appear to show the AI delivering extensive verbatim quotes from Times news articles. From the opening of Kint’s thread:

Like others writing about the newly, Kint writes that he thinks the Times legal action may eventually be understood as a landmark case.

“It’s rooted in copyright law and the US Constitution and that’s very much where it begins.”

The Times’ story includes a link to the lawsuit’s court filing here.

In the BBC’s report on The New York Times‘ lawsuit, Tom Gerken goes over several other suits, including that of the Authors Guild, all of them unresolved. Bobby Allyn at NPR writes, “The Times is the first major media organization to drag OpenAI to court over the thorny and still-unresolved question of whether artificial intelligence companies broke intellectual property law by training AI models with copyrighted material.”

Another dimension of the issues, and the lawsuits, is surfaced by Alexandra Bruell in her Wall Street Journal piece, writing, “The Times suit raises the prospect of a fissure in the publishing world—if some major outlets follow the Times in pursuing legal action, while others negotiate for compensation from OpenAI, Microsoft and Google, which is developing its own AI efforts. Already, a few publishers, including the Associated Press and Axel Springer, the publisher of Web sites such as Politico and Business Insider, have reached commercial agreements to license their content to OpenAI.”

While the news industry and the book publishing industry exist in a parallel held together at times by copyright considerations and other factors, many perceived threats are shared by both sectors and successful management of the AI-class concerns for both businesses may to some degree become increasingly impacted by how much unity of response can be found and shared among the key players.

Image – Getty iStockphoto: Lagarto Film

More from Publishing Perspectives on artificial intelligence is here, more on the European Union is here, more on the United States’ market is here, and more on the United Kingdom’s market is here.

About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.

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