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In April, The New York Times filed a lawsuit against OpenAI and Microsoft, becoming the first major media company to sue over copyright issues raised by AI technology. The lawsuit centers around the use of copyrighted articles by AI chatbots, which generate near word-for-word excerpts of articles, allowing users to bypass paywalls and access content without directly visiting the source. The Times presents evidence of OpenAI’s chatbot copying verbatim excerpts from their articles, and argues that these actions go beyond the typical snippets shown in search results. The lawsuit could have far-reaching implications for the news publishing industry, potentially affecting the financial viability of media organizations. OpenAI may be pushed into accepting a costly licensing deal to avoid creating unfavorable case law.

The lawsuit avoids the argument that the chatbot itself is an infringing work, instead focusing on the verbatim copying of articles. The Times argues that proof of identical works generated by the chatbots is necessary to establish copyright infringement. This presents a challenge for artists suing AI companies, as they often cannot show a close match between their works and the outputs of the chatbots. Courts have previously required evidence of “substantial similarity” for copyright claims to survive dismissal. The lawsuit provides evidence that articles from The Times were used to train AI systems and highlights the importance of reputable publishers as training data sources.

While the Authors Guild’s lawsuit focuses on the ingestion of copyrighted material for training AI systems, The Times emphasizes the exact reproduction of its articles as substantially similar to their originals. The company holds that it is the biggest source of proprietary data used to train OpenAI’s GPT, making its content valuable to tech companies. The suit may be the first of many, as news archives gain increasing value to AI companies. The Times, however, may face challenges in alleging infringement over news articles, as facts are not copyrightable.

The lawsuit brings claims for copyright infringement, contributory copyright infringement, trademark dilution, unfair competition, and a violation of the Digital Millennium Copyright Act. It also alleges that the AI chatbot falsely attributes “hallucinations” to The Times, fabricating articles that the newspaper never published. An infringement finding could lead to significant damages, with a statutory maximum of $150,000 for each willful violation.