Battle Between Newspaper Giant and Generative AI Boils Down to Definition of Fair Use

The training of artificial intelligence models using copyrighted material continues to stir debate and prompt litigation. In the latest salvo, the New York Times Company sued Microsoft and OpenAI – the creator of ChatGPT – for infringement under the federal Copyright Act.

As often is the case with claims like these, the merits will center on the fair-use doctrine, a well-recognized legal principle in copyright law that aims to balance the interests of copyright holders with the public benefit of free speech and creative works. Fair use is a defense to a claim of copyright infringement that must be affirmatively invoked by the accused infringer.

Importantly, Section 107 of the Copyright Act makes clear that the fair use doctrine works as an exclusion to copyright infringement (i.e., even where a copyrighted work is used, the exclusion prevents such use from constituting copyright infringement).

The success of a fair use defense is heavily fact dependent, as courts balance a number of factors in considering its application (e.g., the amount of the use, whether the use was transformative, etc.). The fair use defense has been successful in permitting the unauthorized use of protected work for certain purposes like criticism, comment, teaching, scholarship, research, and news reporting.

Getting to the Merits

Whether OpenAI’s expressed fair-use defense has merit presents an interesting question. It certainly appears to be a colorable defense, but it is important to appreciate that the case is in the early stages and, at the time of this writing, OpenAI has yet to formally lodge a fair-use defense or provide an answer in the pending litigation. For its part, Microsoft is alleged to have invested $13 billion in OpenAI and incorporated OpenAI’s technology in the Microsoft-owned search engine, Bing, and other 365 Office products. Microsoft also has yet to submit its answer in the lawsuit.

The New York Times appears to focus its attack on two aspects of OpenAI’s conduct: (1) its “training” of AI models using content “scraped” from The New York Times and other sources; and (2) the AI model’s “output,” allegedly containing “output [that are] near-verbatim copies of significant portions of Times Works.”

OpenAI’s position against the “training-based” allegation seems to be the stronger of the two positions, and a court would likely have to work harder to reject a fair use defense there. The “output” argument is most likely to present the stronger danger to OpenAI, but OpenAI has in its quiver the holding in Authors Guild, Inc. v. Google Inc., 721 F.3d 132 (2d Cir. 2013).

There, Google successfully used the fair-use defense to defend its Google Books technology, which scanned and digitized huge volumes of copyrighted material to make their contents searchable online.

Big Implications

As is always true with fair use cases, the success of OpenAI’s defense will turn on its particular facts, but it seems if OpenAI can survive the “output” attack, it is highly likely to survive the “training” attack.

Merits aside, the outcome of this case is likely to have important policy implications, as a win by The New York Times arguably undermines the fundamentals of generative AI.

Image Source: Deposit Photos
Author: garagestock
Image ID: 133247770