A Manhattan judge overseeing against Microsoft and OpenAI received dueling summary judgment motions Friday, with news organizations including the Orlando Sentinel, the New York Daily News and The New York Times calling on the court to toss a key pillar of the tech behemoths’ defense to the claim that they are pirating original reporting.
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In their motion, the news organizations requested that Manhattan Federal Judge Sidney Stein resolve several core issues in the complex lawsuit before it goes to trial, asking for a determination that neither Microsoft nor OpenAI employed “fair use” of their reporting at any stage of the A.I. pipeline, including when acquiring articles behind paywalls and training large language models, or LLMs, on the copied work.
“Resolution of these issues for plaintiffs as a matter of law will streamline this case for trial and, by rejecting defendants’ efforts to recast free riding as fair use, recognize that the future not just of journalism but of responsible AI too depends on preserving incentives for humans to produce the creative works on which a healthy society depends,” lawyers for the news organizations wrote.
The news outlets are slated to urge the court to unseal heavily redacted portions of their motions in the coming weeks relating to admissions by Microsoft executives they say undercut the company’s defenses.
“The stuff that we were forced to file under seal because Microsoft and OpenAI had designated them as confidential is scorchingly hot,” said Steven Lieberman, the attorney leading the Sentinel and The News’ representation in the case.
“Not just a smoking gun; they’re a smoking bazooka.”
The news organizations have separately sought sanctions in the ongoing suit against OpenAI. In a July motion Stein has yet to rule on, they accused the A.I. company of destroying evidence and concealing its ability to locate stolen news stories in training data and in responses to ChatGPT users. The news organizations’ motions for summary judgment are more focused on Microsoft pending the outcome of the sanctions motion.
In OpenAI’s motion, the company’s lawyers denied its chatbots regurgitate news articles verbatim and said newspapers don’t own the facts they gather in the reporting process.
“Nobody owns facts, just as nobody owns language, grammar, or style,” OpenAI’s brief read. “Those who expend sweat or shoe-leather to report the facts do not gain a monopoly on the truths they report … These technologies put the world’s facts within reach of anyone who asks, in whatever form is most useful to them. That is progress, and copyright law does not stand in its way.”
In their court papers, Microsoft, whose A.I. knowledge assistant, Copilot, was built around OpenAI’s GPT models, asked for summary judgment on all copyright claims challenging LLM training and web grounding, which pairs the chatbot with internet search capabilities, enabling Copilot “to locate, synthesize, and contextualize information in responding to user queries.” Microsoft contended that training its models with human-produced journalism amounts to a “transformative” use of the material, protected under the “fair use” legal doctrine.
“Microsoft has deep respect for the critical role News Plaintiffs have long served in our public discourse, and Microsoft has partnered with news organizations to safeguard local and national journalism,” the tech giant’s lawyers wrote. “But copyright law does not give News Plaintiffs the right to block transformative new technologies that do not replace their protected expression.”
The Microsoft filing denied that Copilot users use it to learn about news or current events.
OpenAI, however, has acknowledged in the ongoing Manhattan litigation that a large chunk of its users go to it for their news, a trend news organizations say has drastically impacted website traffic and subscriptions that fund reporters’ salaries and news gathering. More than one billion people use OpenAI’s ChatGPT, according to figures released in June by the market intelligence firm Sensor Tower.
Challenging the tech companies’ “fair use” claims, the news organizations also counter that A.I. bots don’t always handle the reporting responsibly, frequently churning out distorted facts in content that resembles news, “but in fact contains inaccurate information about current events—a phenomenon potentially even more harmful to the market for news.”
The newspapers’ Friday motion says OpenAI and Microsoft’s products have led to a tsunami of “pink slime” news sites that plagiarize or remix content from legitimate news sources. Human-produced reporting is expensive, but under OpenAI’s pricing, the suit details that it would only cost around $6,800 to generate 1 million news-style articles averaging 500 words each without employing a single human author, editor, or reporter.
“Defendants pay for the chips they use in their factories. They pay for the computers they use. They pay for their electricity. They pay for their buildings. And they contend that their code is proprietary and competitors copy it. That is piracy,” Lieberman said.
“But they seem to think that it is somehow OK for them to take the content produced by hard-working journalists without consent or compensation. It is not. This is what we are asking the court to decide.”
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The News reached out to Microsoft and OpenAI for comment.