
In December, the New York Times filed a lawsuit against OpenAI—the creator of the popular artificial intelligence software known as ChatGPT—and Microsoft, one of OpenAI’s primary financial backers and partners. As reported by the Times, the suit alleged that OpenAI used millions of Times articles to train “automated chatbots that now compete with the news outlet as a source of reliable information” by reproducing Times articles. By doing this, the suit argued, OpenAI was trying to “free-ride” on the newspaper’s investment in journalism, and Microsoft was guilty of doing the same, because it used ChatGPT technology in its Bing search engine and in many Microsoft Office products. The Times didn’t ask for specific financial damages from OpenAI or Microsoft, but said that the behavior alleged in the lawsuit should result in “billions of dollars” in damages from both companies. The Times also asked the court to force OpenAI to destroy any AI models, databases, and training data that were based on copyrighted material from the paper.
As I reported for CJR in January, OpenAI’s response to the lawsuit was twofold: On the one hand, it argued that the Times was not being transparent about the process it had used to get ChatGPT to produce the copies of Times articles, and that getting ChatGPT to do this involved a bug that users would likely never experience. At the same time, OpenAI argued that its scanning or “ingestion” of data from sources such as the Times to feed its AI engine was permissible under the fair use exemption in American copyright law. As I explained in October, according to the fair use principle, copyrighted material can be used for certain purposes without permission, and without paying the owner a fee for licensing, provided the use meets certain criteria (as outlined in the “four factors” test that judges use when hearing fair use cases).
Last week, OpenAI filed an official response to the Times lawsuit that echoes and expands on many of the arguments the company originally made in January. Despite the allegations that ChatGPT could become a competitor to the Times by reproducing articles, OpenAI said in its response that ChatGPT is “not in any way a substitute for a subscription to the New York Times.” In the real world, OpenAI said, people not only do not use ChatGPT for that purpose, but would not be able to do so even if they wanted to, since “in the ordinary course, one cannot use ChatGPT to serve up Times articles at will.” According to OpenAI, the allegations in the Times’ lawsuit “do not meet its famously rigorous journalistic standards.” In reality, the company said, the Times paid someone to hack OpenAI’s products, and it took this person or persons tens of thousands of attempts to generate the kinds of results included in the suit.
Note: This was originally published as the daily email newsletter for the Columbia Journalism Review, where I am the chief digital writer
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