The New York Times Co. filed a lawsuit against two of the largest artificial intelligence companies, Microsoft and OpenAI, for copyright infringement. In its complaint, the Times said that Microsoft and OpenAI illegally copied and used millions of its articles to inform and enhance each company’s AI models including OpenAI’s famous product, ChatGPT.
The suit could have wide-ranging implications for both AI companies and media and publishing companies that are concerned their content is being used without payment or permission to “teach” artificial intelligence models. The Times wants AI companies to pay for any damages they have caused and for the companies to destroy any AI models that used its copyrighted material without permission.
The Times believes that it is among the largest sources of private information for OpenAI and Microsoft’s AI products. According to the lawsuit, their products redirect traffic away from the Times’ web properties, causing the company to lose out on advertising and subscription revenue. The company believes that because of this a large amount of their work is being used against them.
“Times journalism is the work of thousands of journalists, whose employment costs hundreds of millions of dollars per year,” the Times said in its complaint. “Defendants have effectively avoided spending the billions of dollars that the Times invested in creating that work by taking it without permission or compensation.”
The media company said that it approached Microsoft and OpenAI in April of 2023 to raise concerns about the use of its copyrighted materials. It discussed the possibility of creating a commercial agreement between the companies in order to effectively safeguard its products from copyright infringement however, this discussion did not result in a formal agreement.
In a similar situation, some technology companies working on AI models have argued that they have the right to use any content available on the open internet under the legal provision of “fair use.” Under this provision, individuals or companies are permitted to use copyrighted work in certain circumstances without a license to do so. In this case, The Times argues that such an argument should not apply since the AI products use its content to “steal audiences away from it.”
More AI Content Battles Lie Ahead
The Times’ case may be just the first of many lawsuits against AI companies for copyright infringement. Since “a Supreme Court decision is essentially inevitable,” according to Richard Tofel, a consultant to The Times, tech companies have the opportunity to now reflect on their AI models and consider measuring the choice between potential lawsuits and entering into commercial agreements.
While this is the first instance in which a publisher has brought a lawsuit against AI companies, many other publishers have reached commercial agreements to permit OpenAI to use their content. By doing so, OpenAI can use a publisher’s content without a need to worry about potential copyright infringement; the company only needs to pay a small cut of its revenue towards the publisher. 
Jacob Horowitz is a contributing editor at Compliance Chief 360°