<https://arstechnica.com/tech-policy/2023/08/report-potential-nyt-lawsuit-could-force-openai-to-wipe-chatgpt-and-start-over/>
Weeks after The New York Times updated its terms of service (TOS) to
prohibit AI companies from scraping its articles and images
<https://arstechnica.com/information-technology/2023/08/the-new-york-times-prohibits-ai-vendors-from-devouring-its-content/>
to train AI models, it appears that the Times may be preparing to sue
OpenAI. The result, experts speculate, could be devastating to OpenAI,
including the destruction of ChatGPT's dataset and fines up to $150,000
<https://www.copyright.gov/title17/92chap5.html> per infringing piece of
content.
NPR spoke
<https://www.npr.org/2023/08/16/1194202562/new-york-times-considers-legal-action-against-openai-as-copyright-tensions-swirl>
to two people "with direct knowledge" who confirmed that the Times'
lawyers were mulling whether a lawsuit might be necessary "to protect
the intellectual property rights" of the Times' reporting.
Neither OpenAI nor the Times immediately responded to Ars' request to
comment.
If the Times were to follow through and sue ChatGPT-maker OpenAI, NPR
suggested that the lawsuit could become "the most high-profile" legal
battle yet over copyright protection since ChatGPT's explosively popular
launch. This speculation comes a month after Sarah Silverman joined
other popular authors suing OpenAI
<https://arstechnica.com/information-technology/2023/07/book-authors-sue-openai-and-meta-over-text-used-to-train-ai/>over
similar concerns, seeking to protect the copyright of their books.
Of course, ChatGPT isn't the only generative AI tool drawing legal
challenges over copyright claims. In April, experts told Ars that
image-generator Stable Diffusion could be a "legal earthquake"
<https://arstechnica.com/tech-policy/2023/04/stable-diffusion-copyright-lawsuits-could-be-a-legal-earthquake-for-ai/>
due to copyright concerns.
But OpenAI seems to be a prime target for early lawsuits, and NPR
reported that OpenAI risks a federal judge ordering ChatGPT's entire
data set to be completely rebuilt—if the Times successfully proves the
company copied its content illegally and the court restricts OpenAI
training models to only include explicitly authorized data. OpenAI could
face huge fines for each piece of infringing content, dealing OpenAI a
massive financial blow just months after The Washington Post reported
<https://www.washingtonpost.com/technology/2023/07/07/chatgpt-users-decline-future-ai-openai/>
that ChatGPT has begun shedding users, "shaking faith in AI revolution."
Beyond that, a legal victory could trigger an avalanche of similar
claims from other rights holders.
Unlike authors who appear most concerned about retaining the option to
remove their books from OpenAI's training models, the Times has other
concerns about AI tools like ChatGPT. NPR reported that a "top concern"
is that ChatGPT could use The Times' content to become a "competitor" by
"creating text that answers questions based on the original reporting
and writing of the paper's staff."
As of this month, the Times' TOS prohibits any use of its content for
"the development of any software program, including, but not limited to,
training a machine learning or artificial intelligence (AI) system."
Now it seems clear that this update provides the Times with an extra
layer of protection as NPR reports that the media outlet is seemingly
reconsidering a licensing deal with OpenAI. That licensing deal would
have ensured that OpenAI paid for NYT content used to train its models.
According to NPR, meetings between OpenAI and the Times have become
"contentious," making the deal appear increasingly unlikely as the Times
seemingly weighs whether any licensing deal would be worth participating
in, as the resulting product could become its fiercest competitor.
To defend its AI training models, OpenAI would likely have to claim
"fair use" of all the web content the company sucked up to train tools
like ChatGPT. In the potential New York Times case, that would mean
proving that copying the Times' content to craft ChatGPT responses would
not compete with the Times.
Experts told NPR that would be challenging for OpenAI because unlike
Google Books—which won a federal copyright challenge in 2015 because its
excerpts of books did not create a "significant market substitute" for
the actual books—ChatGPT could actually replace for some web users the
Times' website as a source of its reporting.
The Times' lawyers appear to think this is a real risk, and NPR reported
that, in June, NYT leaders issued a memo to staff that seems like an
early warning of that risk. In the memo, the Times' chief product
officer, Alex Hardiman, and deputy managing editor Sam Dolnick said a
top "fear" for the company was "protecting our rights" against
generative AI tools.
"How do we ensure that companies that use generative AI respect our
intellectual property, brands, reader relationships, and investments?"
the memo asked, echoing a question being raised in newsrooms that are
beginning to weigh the benefits and risks of generative AI.
Last month, the Associated Press became one of the first news
organizations to strike a licensing deal with OpenAI, but the terms of
the deal were not disclosed
<https://apnews.com/article/openai-chatgpt-associated-press-ap-f86f84c5bcc2f3b98074b38521f5f75a>.
Today, AP reported
<https://apnews.com/article/artificial-intelligence-guidelines-ap-news-532b417395df6a9e2aed57fd63ad416a>
that it had joined other news organizations in developing standards for
the use of AI in newsrooms, acknowledging that many "news organizations
are concerned about their material being used by AI companies without
permission or payment."
In April, the News Media Alliance published AI principles
<https://www.newsmediaalliance.org/ai-principles/>, seeking to defend
publishers' intellectual property by insisting that generative AI
"developers and deployers must negotiate with publishers for the right
to use" publishers' content for AI training, AI tools surfacing
information, and AI tools synthesizing information.
Ars could not immediately reach the News Media Alliance for comment on
the potential impact of the NYT case.
reader comments
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<https://arstechnica.com/tech-policy/2023/08/report-potential-nyt-lawsuit-could-force-openai-to-wipe-chatgpt-and-start-over/?comments=1>
<https://arstechnica.com/author/ashleybelanger>
Ashley Belanger <https://arstechnica.com/author/ashleybelanger> Ashley
is a senior policy reporter for Ars Technica, dedicated to tracking
social impacts of emerging policies and new technologies. She is a
Chicago-based journalist with 20 years of experience.
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