OpenAI and Microsoft are requesting documents from The New York Times detailing the paper’s claims that the tech companies’ AI models have reduced subscriptions, license fees, advertising and affiliate revenues.
A separate letter filed Monday by OpenAI and Microsoft requesting a pre-claim conference asks whether the tech giant’s use of Times content to train its AI systems is a “fair use” under copyright law. These details are important when analyzing whether United States District Court for the Southern District of New York. The fourth aspect of the fair use doctrine tests whether the use of copyrighted content affects the market for the original work.
OpenAI’s letter states that OpenAI and Microsoft “want to verify the Times’ claims of harm.” “It is not enough to claim that the Times suffered a loss of income.”
Microsoft similarly submitted subscription cancellation information, changes in advertising revenue, impact on website traffic, and its own market analysis to the Times as a defendant charged with presenting evidence regarding the fourth element of the fair use doctrine. It claims that it needs to be provided on paper. Articles like that consumer group.
The paper agreed to produce “sufficient documentation” to show a decline in web traffic and an analysis that would show only that decline was due to GPT services, but OpenAI said it would produce more documentation to get a more complete picture. It wants the data, the company said. Supporting documents can help companies and courts understand whether there are other reasons for the decrease in numbers.
The Times should also provide the documents used to license the article to substantiate its claim that OpenAI’s actions impaired its ability to obtain favorable contracts.
“If Times employees were aware that such a licensing effort would be unfeasible on a large scale, or that there was no market for such a license, those documents would “This will be critical to establishing the absence of a viable market, and thus the absence of any adverse market impact,” OpenAI wrote.
The letter marks the latest development in a long-running discovery dispute as part of a publication copyright lawsuit against a technology company. The parties have previously disputed requests for access to the Times’ reporter memos, the paper’s prompts fed into an AI model, and, most recently, the social media messages of managers at tech companies. Two other lawsuits, one filed by a group of publications like the Daily News and another by the Center for Investigative Reporting, were combined into the Times lawsuit.
Latham & Watkins LLP, Keker Van Nest & Peters LLP, and Morrison Foerster LLP represent OpenAI. Orrick, Herrington & Sutcliffe LLP represents Microsoft. Susman Godfrey LLP and Rothwell, Figg, Ernst & Manbeck are representing the news plaintiffs.
The case is The New York Times Co. v. Microsoft Corp., SDNY, No. 1:23-cv-11195, letter filed on November 18, 2019.
