Those details are important to analyze if the tech giants’ use of the Times’ content to train AI systems is “fair use” under the Copyright Act, according to OpenAI and Microsoft’s separate letters requesting a pre-motion conference on the documents filed Monday in the US District Court for the Southern District of New York. The fourth prong of the fair use doctrine tests whether use of copyrighted content affects the market for the original work.
OpenAI and Microsoft want to “test the Times’ assertions of harm,” OpenAI’s letter said. “It is not sufficient for the Times to claim it suffered some revenue loss.”
Microsoft similarly claims that as a defendant tasked with the burden of presenting evidence on the fourth factor of the fair use doctrine, it needs the Times to supply subscription cancellation information, advertising revenue changes, impacts on website traffic, and analyses of the market for its articles like its consumer base.
The Times agreed to produce documents “sufficient to show” decreasing web traffic and analyses that only attribute those decreases to GPT Services, but OpenAI wants more data to get a fuller picture, the company said. Supplemental documents will help the companies and court understand if any other reasons are contributing to those declining numbers.
The Times should also provide documents used to license its articles to authenticatethe newspaper’s claims that OpenAI’s actions harmed its ability to ink lucrative agreements.
“If Times employees recognized that such licensing efforts were not feasible at scale or that there was no market for such licenses, those documents would be critical to establishing a lack of a cognizable market and thus the absence of market harm,” OpenAI wrote.
The letters mark the latest development in the long-running discovery dispute that’s unwinding as part of the publication’s copyright lawsuit against the tech companies. The parties have previously battled out requests for the Times’ reporters’ notes, its prompts fed into AI models, and most recently, access to the tech firms’ custodians’ social media messages. Two other lawsuits, one filed by a group of publications like the Daily News and another by the Center for Investigative Reporting, have been merged with the Times’ case.
Latham & Watkins LLP, Keker Van Nest & Peters LLP, and Morrison Foerster LLP represents OpenAI. Orrick, Herrington & Sutcliffe LLP represents Microsoft. Susman Godfrey LLP and Rothwell, Figg, Ernst & Manbeck represent the news plaintiffs.
The case is The New York Times Co. v. Microsoft Corp., S.D.N.Y., No. 1:23-cv-11195, letters filed 11/18/24.