The New York Times wants OpenAI and Microsoft to pay for training data

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The New York Times is suing OpenAI and its close collaborator (and investor), Microsoft, for allegedly violating copyright law by training generative AI models on Times’ content.

In the lawsuit, filed in the Federal District Court in Manhattan, The Times contends that millions of its articles were used to train AI models, including those underpinning OpenAI’s ultra-popular ChatGPT and Microsoft’s Copilot, without its consent. The Times is calling for OpenAI and Microsoft to “destroy” models and training data containing the offending material and to 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.”

“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,” reads The Times’ complaint. “Less journalism will be produced, and the cost to society will be enormous.”

In an emailed statement, an OpenAI spokesperson said: “We respect the rights of content creators and owners and are committed to working with them to ensure they benefit from AI technology and new revenue models. Our ongoing conversations with The New York Times have been productive and moving forward constructively, so we are surprised and disappointed with this development. We’re hopeful that we will find a mutually beneficial way to work together, as we are doing with many other publishers.”

Generative AI models “learn” from examples to craft essays, code, emails, articles and more, and vendors like OpenAI scrape the web for millions to billions of these examples to add to their training sets. Some examples are in the public domain. Others aren’t, or come under restrictive licenses that require citation or specific forms of compensation.

Vendors argue fair use doctrine provides a blanket protection for their web-scraping practices. Copyright holders disagree; hundreds of news organizations are now using code to prevent OpenAI, Google and others from scanning their websites for training data.

The vendor-outlet conflict has led to a growing number of legal battles, The Times’ being the latest.

Actress Sarah Silverman joined a pair of lawsuits in July that accuse Meta and OpenAI of having “ingested” Silverman’s memoir to train their AI models. In a separate suit, thousands of novelists, including Jonathan Franzen and John Grisham, claim OpenAI sourced their work as training data without their permission or knowledge. And several programmers have an ongoing case against Microsoft, OpenAI and GitHub over Copilot, an AI-powered code-generating tool, which the plaintiffs say was developed using their IP-protected code.

While The Times isn’t the first to sue generative AI vendors over alleged IP violations involving written works, it’s the largest publisher involved in such a suit to date — and one of the first to highlight potential damage to its brand through “hallucinations,” or made-up facts from generative AI models.

The Times’ complaint cites several cases in which Microsoft’s Bing Chat (now called Copilot), which is underpinned by an OpenAI model, provided incorrect information that was said to have come from The Times — including results for “the 15 most heart-healthy foods,” 12 of which weren’t mentioned in any Times article.

The Times makes the case, also, that OpenAI and Microsoft are effectively building news publisher competitors using The Times’ works, harming The Times’ business by providing information that couldn’t normally be accessed without a subscription — information that isn’t always cited, sometimes monetized and stripped of affiliate links that The Times uses to generate commissions, moreover.

As The Times’ complaint alludes to, generative AI models have a tendency to regurgitate training data, for example reproducing almost verbatim results from  articles. Beyond regurgitation, OpenAI has on at least one occasion inadvertently enabled ChatGPT users to get around paywalled news content.

“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.”

Impacts to the news subscription business — and publisher web traffic — is at the heart of a tangentially similar suit filed by publishers earlier in the month against Google. In the case, the defendants, like The Times, argued Google’s GenAI experiments, including its AI-powered Bard chatbot and Search Generative Experience, siphon off publishers’ content, readers and ad revenue through anticompetitive means.

There’s credence to publishers’ assertions. A recent model from The Atlantic found that, if a search engine like Google were to integrate AI into search, it’d answer a user’s query 75% of the time without requiring a click-through to its website. Publishers in the Google suit estimate they’d lose as much as 40% of their traffic.

That doesn’t mean they’ll be successful in court. Heather Meeker, a founding partner at OSS Capital and an adviser on IP matters including licensing arrangements, compared The Times’ example of regurgitation to “using a word processor to cut and paste.”

“In the complaint, The New York Times gives an example of a ChatGPT session about a 2012 restaurant review,” Meeker told TechCrunch via email. “The prompt for ChatGPT is ‘What were the opening paragraphs of his review?’ The next prompts then repeatedly ask for ‘the next sentence.’ Teasing a chatbot into reproducing input is not a sensible basis for copyright infringement … If the user intentionally makes the chatbot copy, that’s the user’s fault. And that’s why most [lawsuits like this] will probably fail.”

Some news outlets, rather than fight generative AI vendors in court, have chosen to ink licensing agreements with them. The Associated Press struck a deal in July with OpenAI, and Axel Springer, the German publisher that owns Politico and Business Insider, did likewise this month.

In its complaint, The Times says that it attempted to reach a licensing arrangement with Microsoft and OpenAI in April but that talks weren’t ultimately fruitful.

Updated at 4:24 Eastern with additional context and comment from OpenAI.