By: Eleni Tsokolas
The advent of ChatGPT has been one of the most innovative technological inventions of the twenty-first century; however, it has brought forth an onslaught of legal issues—particularly in the copyright realm. On December 27th, 2023, The New York Times filed suit in the Federal District Court in Manhattan seeking “billions of dollars in statutory and actual damages,”arguing that OpenAI and Microsoft’s training models for their artificial intelligence services scrape copyrighted information from The New York Times website. The seventy-page complaint also contends that this unpermitted mass data mining has led to unfair competition, and at times has even verbatim regurgitated material directly from The New York Times publications. Although the billion-dollar claim may seem unfounded to some, it’s worth noting that federal copyright law allows for $150,000 in damages for each willful violation of copyright, so the amalgamation of potential violations here might warrant such a steep award. Also of grave significance is the demand by The New York Times that the companies “destroy any chatbot models and training data that use copyrighted material from The Times.”
While OpenAI and Microsoft have yet to formally respond to the complaint, representatives have spoken out and maintained that the methods used for training their artificial intelligence models are legal under the fair use doctrine per 17 U.S.C. A. § 107, which allows for certain use of copyrighted work without the holder’s permission. Fair use protects materials that are derivative of copyright protected work, provided that the end product is used “for teaching, research or transform[s] the copyrighted work into something different.” OpenAI also negated the allegation that ChatGPT’s generative response to prompts was word-for-word the same as published and copyrighted information from The New York Times by claiming that a user could have skewed the prompts in such a way which led to that result. They stated that “[i]ntentionally manipulating our models to regurgitate is not an appropriate use of our technology and is against our terms of use.” Furthermore, OpenAI argued that their AI training models are using information that is public domain, refraining from reaching into content The New York Times has reserved for subscribers only. They also referenced precedent from a 2015 appellate courtopinion from the Second Circuit regarding a similar copyright infringement issue from the case Authors Guild v. Google.
In Authors Guild v. Google, the Supreme Court dismissed an appeal regarding a lower court’s holding that Google’s digitization of millions of books and exhibition of short excerpts for descriptive purposes was not an infringement of copyright based on the fair use doctrine. The lower court also rejected the idea that this could potentially be unfair competition, seeing as the brief snippets were not an ample alternative to the books themselves. The other leading precedent for the case at bar currently is Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith. This case was decided by the Supreme Court in May 2023, and it held that the derivative photographs by Andy Warhol did not have a “purpose or character that is sufficiently distinct from the original.” Andy Warhol’s famous pop art stylesilkscreen portraits of the late rock legend Prince, also known as the Prince Series, shared virtually the same purpose as the initial high-contrast and colorful photograph of Prince by Lynn Goldsmith, so the risk that his work would substitute the original was significant enough to find the Warhol Foundation in violation of Goldsmith’s copyright.
The Authors Guild case is a favorable precedent to OpenAI and Microsoft, but the Andy Warhol case strongly undermines the tech companies claim to fair use based on the similar purpose and character of ChatGPT. Moreover, courts have consistently held that fair use need be transformative in order to suffice under the statute, something which is evidently lacking from ChatGPT’s reiteration of prior publications by The New York Times. Though The New York Times is the “first major American Media organization to sue the companies,” they are not the first to allege copyright infringement by OpenAI and Microsoft. Authors such as George R.R. Martin, John Grisham, Jodi Picoult, and the authors whose book was the foundation for the movie “Oppenheimer” all have pending cases against the companies on the same basis, though with varying allegations. As for news outlets, AP News currently holds a licensing deal with OpenAI—similar to a deal The New York Times was entertaining prior to filing suit. Either way that the court comes out on the case at bar, the ruling will have massive implications for the future of artificial intelligence as it coincides with free press.
Student Bio: Eleni is a second-year law student at Suffolk University Law School. She is a staff member for the Journal of High Technology Law. Eleni received a Bachelor of Arts degree in philosophy, classical studies, public law and political thought from DePaul University in 2022.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
