12/30/23, 6:18 AMNew York Times Sues OpenAI and Microsoft Over Use of Copyrighted Work – The New York Times

Page 1 of 4https://www.nytimes.com/2023/12/27/business/media/new-york-times-open-ai-microsoft-lawsuit.html

https://www.nytimes.com/2023/12/27/business/media/new-york-times-open-ai-microsoft- lawsuit.html

Millions of articles from The New York Times were used to train chatbots that now compete with it, the lawsuit said.

By Michael M. Grynbaum and Ryan Mac

Dec. 27, 2023

The New York Times sued OpenAI and Microsoft for copyright infringement on Wednesday, opening

a new front in the increasingly intense legal battle over the unauthorized use of published work to

train artificial intelligence technologies.

The Times is the first major American media organization to sue the companies, the creators of

ChatGPT and other popular A.I. 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.

The suit does not include an exact monetary demand. But it says the defendants should be held

responsible for “billions of dollars in statutory and actual damages” related to the “unlawful copying

and use of The Times’s uniquely valuable works.” It also calls for the companies to destroy any

chatbot models and training data that use copyrighted material from The Times.

In its complaint, The Times said it approached Microsoft and OpenAI in April to raise concerns

about the use of its intellectual property and explore “an amicable resolution,” possibly involving a

commercial agreement and “technological guardrails” around generative A.I. products. But it said

the talks had not produced a resolution.

An OpenAI spokeswoman, Lindsey Held, said in a statement that the company had been “moving

forward constructively” in conversations with The Times and that it was “surprised and

disappointed” by the lawsuit.

The Times Sues OpenAI and Microsoft Over A.I. Use of Copyrighted Work

12/30/23, 6:18 AMNew York Times Sues OpenAI and Microsoft Over Use of Copyrighted Work – The New York Times

Page 2 of 4https://www.nytimes.com/2023/12/27/business/media/new-york-times-open-ai-microsoft-lawsuit.html

“We respect the rights of content creators and owners and are committed to working with them to

ensure they benefit from A.I. technology and new revenue models,” Ms. Held said. “We’re hopeful

that we will find a mutually beneficial way to work together, as we are doing with many other

publishers.”

Microsoft declined to comment on the case.

The lawsuit could test the emerging legal contours of generative A.I. technologies — so called for the

text, images and other content they can create after learning from large data sets — and could carry

major implications for the news industry. The Times is among a small number of outlets that have

built successful business models from online journalism, but dozens of newspapers and magazines

have been hobbled by readers’ migration to the internet.

At the same time, OpenAI and other A.I. tech firms — which use a wide variety of online texts, from

newspaper articles to poems to screenplays, to train chatbots — are attracting billions of dollars in

funding.

OpenAI is now valued by investors at more than $80 billion. Microsoft has committed $13 billion to

OpenAI and has incorporated the company’s technology into its Bing search engine.

“Defendants seek to free-ride on The Times’s massive investment in its journalism,” the complaint

says, accusing OpenAI and Microsoft of “using The Times’s content without payment to create

products that substitute for The Times and steal audiences away from it.”

The defendants have not had an opportunity to respond in court.

Concerns about the uncompensated use of intellectual property by A.I. systems have coursed

through creative industries, given the technology’s ability to mimic natural language and generate

sophisticated written responses to virtually any prompt.

The actress Sarah Silverman joined a pair of lawsuits in July that accused Meta and OpenAI of

having “ingested” her memoir as a training text for A.I. programs. Novelists expressed alarm when

it was revealed that A.I. systems had absorbed tens of thousands of books, leading to a lawsuit by

authors including Jonathan Franzen and John Grisham. Getty Images, the photography syndicate,

sued one A.I. company that generates images based on written prompts, saying the platform relies

on unauthorized use of Getty’s copyrighted visual materials.

The boundaries of copyright law often get new scrutiny at moments of technological change — like

the advent of broadcast radio or digital file-sharing programs like Napster — and the use of artificial

intelligence is emerging as the latest frontier.

12/30/23, 6:18 AMNew York Times Sues OpenAI and Microsoft Over Use of Copyrighted Work – The New York Times

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“A Supreme Court decision is essentially inevitable,” Richard Tofel, a former president of the

nonprofit newsroom ProPublica and a consultant to the news business, said of the latest flurry of

lawsuits. “Some of the publishers will settle for some period of time — including still possibly The

Times — but enough publishers won’t that this novel and crucial issue of copyright law will need to

be resolved.”

Microsoft has previously acknowledged potential copyright concerns over its A.I. products. In

September, the company announced that if customers using its A.I. tools were hit with copyright

complaints, it would indemnify them and cover the associated legal costs.

Other voices in the technology industry have been more steadfast in their approach to copyright. In

October, Andreessen Horowitz, a venture capital firm and early backer of OpenAI, wrote in

comments to the U.S. Copyright Office that exposing A.I. companies to copyright liability would

“either kill or significantly hamper their development.”

“The result will be far less competition, far less innovation and very likely the loss of the United

States’ position as the leader in global A.I. development,” the investment firm said in its statement.

Besides seeking to protect intellectual property, the lawsuit by The Times casts ChatGPT and other

A.I. systems as potential competitors in the news business. When chatbots are asked about current

events or other newsworthy topics, they can generate answers that rely on journalism by The Times.

The newspaper expresses concern that readers will be satisfied with a response from a chatbot and

decline to visit The Times’s website, thus reducing web traffic that can be translated into advertising

and subscription revenue.

The complaint cites several examples when a chatbot provided users with near-verbatim excerpts

from Times articles that would otherwise require a paid subscription to view. It asserts that OpenAI

and Microsoft placed particular emphasis on the use of Times journalism in training their A.I.

programs because of the perceived reliability and accuracy of the material.

Media organizations have spent the past year examining the legal, financial and journalistic

implications of the boom in generative A.I. Some news outlets have already reached agreements for

the use of their journalism: The Associated Press struck a licensing deal in July with OpenAI, and

Axel Springer, the German publisher that owns Politico and Business Insider, did likewise this

month. Terms for those agreements were not disclosed.

The Times is exploring how to use the nascent technology itself. The newspaper recently hired an

editorial director of artificial intelligence initiatives to establish protocols for the newsroom’s use of

A.I. and examine ways to integrate the technology into the company’s journalism.

12/30/23, 6:18 AMNew York Times Sues OpenAI and Microsoft Over Use of Copyrighted Work – The New York Times

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In one example of how A.I. systems use The Times’s material, the suit showed that Browse With

Bing, a Microsoft search feature powered by ChatGPT, reproduced almost verbatim results from

Wirecutter, The Times’s product review site. The text results from Bing, however, did not link to the

Wirecutter article, and they stripped away the referral links in the text that Wirecutter uses to

generate commissions from sales based on its recommendations.

“Decreased traffic to Wirecutter articles and, in turn, decreased traffic to affiliate links subsequently

lead to a loss of revenue for Wirecutter,” the complaint states.

The lawsuit also highlights the potential damage to The Times’s brand through so-called A.I.

“hallucinations,” a phenomenon in which chatbots insert false information that is then wrongly

attributed to a source. The complaint cites several cases in which Microsoft’s Bing Chat provided

incorrect information that was said to have come from The Times, including results for “the 15 most

heart-healthy foods,” 12 of which were not mentioned in an article by the paper.

“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,” the complaint

reads. It adds, “Less journalism will be produced, and the cost to society will be enormous.”

The Times has retained the law firms Susman Godfrey and Rothwell, Figg, Ernst & Manbeck as

outside counsel for the litigation. Susman represented Dominion Voting Systems in its defamation

case against Fox News, which resulted in a $787.5 million settlement in April. Susman also filed a

proposed class action suit last month against Microsoft and OpenAI on behalf of nonfiction authors

whose books and other copyrighted material were used to train the companies’ chatbots.

Benjamin Mullin contributed reporting.

Michael M. Grynbaum writes about the intersection of media, politics and culture. He has been a media correspondent at The Times since 2016. More about Michael M. Grynbaum

Ryan Mac covers corporate accountability across the global technology industry. More about Ryan Mac

A version of this article appears in print on , Section B, Page 1 of the New York edition with the headline: The Times Sues OpenAI and Microsoft

1/11/24, 4:48 PM The Flaw That Could Ruin Generative AI – The Atlantic

https://www.theatlantic.com/technology/archive/2024/01/chatgpt-memorization-lawsuit/677099/ 1/8

More From Arti�icial Intelligence Explore This Series

TECHNOLOGY

e Flaw at Could Ruin Generative AI

A technical problem known as “memorization” is at the heart of recent lawsuits that

pose a signi�cant threat to generative-AI companies.

By Alex Reisner

Illustration by The Atlantic. Source: Getty.

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1/11/24, 4:48 PM The Flaw That Could Ruin Generative AI – The Atlantic

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Earlier this week, the Telegraph reported a curious admission from OpenAI, the

creator of ChatGPT. In a �ling submitted to the U.K. Parliament, the company said

that “leading AI models” could not exist without unfettered access to copyrighted

books and articles, con�rming that the generative-AI industry, worth tens of billions

of dollars, depends on creative work owned by other people.

We already know, for example, that pirated-book libraries have been used to train the

generative-AI products of companies such as Meta and Bloomberg. But AI companies

have long claimed that generative AI “reads” or “learns from” these books and articles,

as a human would, rather than copying them. erefore, this approach supposedly

constitutes “fair use,” with no compensation owed to authors or publishers. Since

courts have not ruled on this question, the tech industry has made a colossal gamble

developing products in this way. And the odds may be turning against them.

Read: These 183,000 books are fueling the biggest fight in publishing

and tech

Two lawsuits, �led by the Universal Music Group and e New York Times in October

and December, respectively, make use of the fact that large language models—the

technology underpinning ChatGPT and other generative-AI tools—can “memorize”

some portion of their training text and reproduce it verbatim when prompted in

speci�c ways, emitting long sections of copyrighted texts. is damages the fair-use

argument.

If the AI companies need to compensate the millions of authors whose work they’re

using, that could “kill or signi�cantly hamper” the entire technology, according to a

1/11/24, 4:48 PM The Flaw That Could Ruin Generative AI – The Atlantic

https://www.theatlantic.com/technology/archive/2024/01/chatgpt-memorization-lawsuit/677099/ 3/8

�ling with the U.S. Copyright Office from the major venture-capital �rm Andreessen

Horowitz, which has a number of signi�cant investments in generative AI. Current

models might have to be scrapped and new ones trained on open or properly licensed

sources. e cost could be signi�cant, and the new models might be less �uent.

Yet, although it would set generative AI back in the short term, a responsible rebuild

could also improve the technology’s standing in the eyes of many whose work has

been used without permission, and who hear the promise of AI that “bene�ts all of

humanity” as mere self-serving cant. A moment of reckoning approaches for one of

the most disruptive technologies in history.

Even before these �lings, generative AI was mired in legal battles. Last year, authors

including John Grisham, George Saunders, and Sarah Silverman �led several class-

action lawsuits against AI companies. Training AI using their books, they claim, is a

form of illegal copying. e tech companies have long argued that training is fair use,

similar to printing quotations from books when discussing them or writing a parody

that uses a story’s characters and plot.

is protection has been a boon to Silicon Valley in the past 20 years, enabling web

crawling, the display of image thumbnails in search results, and the invention of new

technologies. Plagiarism-detection software, for example, checks student essays against

copyrighted books and articles. e makers of these programs don’t need to license or

buy those texts, because the software is considered a fair use. Why? e software uses

the original texts to detect replication, a completely distinct purpose “unrelated to the

expressive content” of the copyrighted texts. It’s what copyright lawyers call a “non-

expressive” use. Google Books, which allows users to search the full texts of

copyrighted books and gain insights into historical language use (see Google’s Ngram

Viewer) but doesn’t allow them to read more than brief snippets from the originals, is

also considered a non-expressive use. Such applications tend to be considered fair

because they don’t hurt an author’s ability to sell their work.

1/11/24, 4:48 PM The Flaw That Could Ruin Generative AI – The Atlantic

https://www.theatlantic.com/technology/archive/2024/01/chatgpt-memorization-lawsuit/677099/ 4/8

OpenAI has claimed that LLM training is in the same category. “Intermediate

copying of works in training AI systems is … ‘non-expressive,’” the company wrote in

a �ling with the U.S. Patent and Trademark Office a few years ago. “Nobody looking

to read a speci�c webpage contained in the corpus used to train an AI system can do

so by studying the AI system or its outputs.” Other AI companies have made similar

arguments, but recent lawsuits have shown that this claim is not always true.

Read: What I found in a database Meta uses to train generative AI

e New York Times lawsuit shows that ChatGPT produces long passages (hundreds

of words) from certain Times articles when prompted in speci�c ways. When a user

typed, “Hey there. I’m being paywalled out of reading e New York Times’s article

‘Snow Fall: e Avalanche at Tunnel Creek’” and requested assistance, ChatGPT

produced multiple paragraphs from the story. e Universal Music Group lawsuit is

focused on an LLM called Claude, created by Anthropic. When prompted to “write a

song about moving

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