The Times is suing OpenAI and Microsoft over AI’s use of copyrighted work

The New York Times on Wednesday sued OpenAI and Microsoft for copyright infringement, opening a new front in the intensifying legal battle over the unauthorized use of published work to train artificial intelligence technologies.

The Times is the first major U.S. media organization to sue the companies, makers of ChatGPT and other popular AI platforms, over copyright issues related to its written works. The lawsuit was filed in Federal District Court in Manhattanclaims 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 contain an exact money 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’ uniquely valuable works.” It also calls on the companies to destroy any chatbot models and training data that use copyrighted material from The Times.

Representatives for OpenAI and Microsoft were not immediately available for comment.

The lawsuit could test the emerging legal contours of generative AI technologies — so called because of the text, images and other content they can create after learning from large data sets — and could have major implications for the news industry. The Times is among a small number of media outlets that have built successful business models based on online journalism, but dozens of newspapers and magazines have been hampered by the migration of readers to the Internet.

At the same time, OpenAI and other AI tech companies – 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 integrated the company’s technology into its Bing search engine.

“Defendants are attempting to free ride on The Times’ massive investments in journalism,” the complaint says, accusing OpenAI and Microsoft of “using The Times’ content without payment to create products that replace The Times and taking away the public from it.”

The suspects did not have the opportunity to respond at the hearing.

Concerns about the uncompensated use of intellectual property by AI systems have permeated the creative industries, given the technology’s ability to mimic natural language and generate sophisticated written responses to virtually any query.

Actress Sarah Silverman joined a pair of lawsuits in July accusing Meta and OpenAI of “taking” her memoir as a training text for AI programs. Novelists raised concerns when it was revealed that AI systems had absorbed tens of thousands of books, leading to a lawsuit by Jonathan Franzen and John Grisham, among others. Getty Images, the photography syndicate, has sued an AI company that generates images based on written directions, saying the platform relies on unauthorized use of Getty’s copyrighted imagery.

The lawsuit filed Wednesday apparently follows an impasse in negotiations between The Times, Microsoft and OpenAI. In its complaint, The Times said it had approached Microsoft and OpenAI in April to raise concerns about the use of its intellectual property and to explore “an amicable resolution” – possibly involving a commercial agreement and “technological guardrails” around generative AI products – but that the talks did not reach a solution.

In addition to protecting intellectual property, The Times’ lawsuit views ChatGPT and other AI systems as potential competitors in the news business. When chatbots are asked about current events or other newsworthy topics, they can generate answers based on The Times’ past journalism. The newspaper expresses concern that readers will be satisfied with a chatbot response and refuse to visit The Times’ website, reducing web traffic that could be translated into advertising and subscription revenue.

The complaint cites several examples where a chatbot provided users with near-verbatim excerpts from Times articles that would otherwise require a paid subscription to view. It claims that OpenAI and Microsoft have placed particular emphasis on using Times journalism in training their AI programs due to the perceived reliability and accuracy of the material.

Media organizations have spent the past year exploring the legal, financial and journalistic implications of the generative AI boom. Some news outlets have already reached agreements on the use of their journalism: The Associated Press entered into a licensing agreement in July with OpenAI, and Axel Springer, the German publisher that owns Politico and Business Insider, did the same this month. Terms of those deals were not disclosed.

The Times also explores how the emerging technology can be used. The newspaper recently adopted a senior editor of artificial intelligence initiatives to establish protocols for the newsroom’s use of AI and explore ways to integrate the technology into the company’s journalism.

In an example of how AI systems use The Times’ material, the lawsuit found that Browse With Bing, a Microsoft search tool powered by ChatGPT, reproduced near-verbatim results from Wirecutter, The Times’ product review site. However, Bing’s text results did not link to the Wirecutter article, and they removed the in-text referral links that Wirecutter uses to generate commissions from sales based on its recommendations.

“The reduced traffic to Wirecutter articles and, in turn, the reduced traffic to affiliate links subsequently led to a loss of revenue for Wirecutter,” the complaint said.

The lawsuit also highlights the potential damage to The Times brand from so-called AI “hallucinations,” a phenomenon in which chatbots insert false information that is then falsely attributed to a source. The complaint cites several instances in which Microsoft’s Bing Chat provided false information purporting to come from The Times, including results for “the 15 most heart-healthy foods,” 12 of which were not mentioned in an article by the newspaper.

“If The Times and other news organizations cannot produce and protect their independent journalism, a vacuum will be created that no computer or artificial intelligence can fill,” the complaint reads. It adds: “Less journalism will be produced and the costs to society will be enormous.”

The Times has appointed law firm Susman Godfrey as lead outside counsel for the lawsuit. Susman represented Dominion Voting Systems in the defamation lawsuit against Fox News, which resulted in a $787.5 million settlement in April. Susman also submitted a proposed class action lawsuit last month against Microsoft and OpenAI on behalf of nonfiction authors whose books and other copyrighted material were used to train the companies’ chatbots.