The New York Times building (photo by David Lat).
Back in January, these pages discussed the filing of one of the more interesting pending IP cases of the moment, a SDNY copyright infringement case filed by the New York Times against Microsoft and OpenAI. As you can imagine, there has already been a lot of activity in that case, including a denied motion to intervene by some celebrities now on appeal in the Second Circuit, as well as motions to dismiss filed by the defendants pending at the same time as the Times’ motion to file an amended complaint. At least one commentator has proclaimed that the case has the potential to result in the “largest intellectual property infringement judgment ever awarded.” Based on the schedule, however, there is still a long way to go before the case is even ripe for decision on summary judgment, much less trial. Still, with the quality of lawyering already on display, as well as the stakes involved, there is no doubt that developments in the case will continue to garner attention.
For now, the most attention must be paid to the pending motions to dismiss, which in OpenAI’s view should be granted so that the “parties can focus their attention on the core issue — that using publicly available information to extract uncopyrightable ideas and facts about language and the world to create a large language model that powers transformative generative artificial intelligence is a quintessential fair use under longstanding copyright doctrine.” In contrast, the Times prefers that the case focus on what it considers the heart of its complaint, namely that “that Defendants built their products by copying The Times’s content on an unprecedented scale — a fact that OpenAI does not, and cannot, dispute.” (The issues presented are so interesting that I am sure that I will not be the only one tempted to attend the oral argument, if Judge Stein schedules one.) It is apparent that the proverbial issue has already been joined between these copyright combatants, with all to play for as their case proceeds.
For all the fanfare around the case in progress, I was also very impressed by a Harvard Law Review “Blog Essay” of April 10, 2024, discussing the case. In that essay, entitled “NYT v. OpenAI: The Times’s About-Face,” the author, HLS student Audrey Pope, discusses the potential impact of the case, which she contends will have a “significant impact on the relationship between generative AI and copyright law, particularly with respect to fair use, and could ultimately determine whether and how AI models are built.” (It would be great to interview the author for these pages, so if she or any of her friends sees this, I hope she considers the invite and reaches out.) While I agree with her analysis on that front, what really struck me about her essay was how she brought to bear an interesting historical perspective that helps frame our understanding of the case in a new light.
In particular, her essay focuses on a 1993 case filed by a group of freelance authors against the Times and two other publications, where each of the authors had seen their copyrighted work published by those periodicals. In addition, pursuant to license agreements between the Times and “computer database companies — but without the permission of the freelancers — the Times uploaded all the articles published in its periodicals into three databases.” The freelancers’ case went all the way up to the Supreme Court, which according to Pope “found that, because the databases presented the articles individually rather than maintaining the collective works in their entirety, the databases could not constitute ‘revisions’ of those collective works. The Times was therefore found to have infringed the freelancers’ copyrights.” In short, the Times once found itself in a position that “seemed not to value the ‘creative and deeply human’ work of the authors that it relies on today as a justification for protecting its own copyrights” in the OpenAI case.
Ultimately, you do not have to agree with Pope’s characterizations of the Times’ actions in defense of the prior case — as making its “current reliance on romantic authorship seem hypocritical” — to see the value in her contrasting of that case and the current one against OpenAI. Yes, the Times is now the plaintiff and not the defendant, but it is also relevant that its current legal position suggests that its “purported commitment to the ‘deeply human’ journalistic endeavor will feel less like a commitment to the humans doing that journalism than to the commercial interests that drive the media giant.” This is especially true when the Times has placed “romantic authorship” considerations at the heart of its current claims. I urge everyone interested to read Pope’s essay in full, even if you end up disagreeing with her suggestion that the “Times ought to be more flexible in its demands for relief in this case.” At a minimum, her study is a reminder that copyright law has always found itself trying to adapt to the changing times.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
