Possible Legal Action by The New York Times on OpenAI over Copyright Infringement

Does the use of copyrighted material to train AI models constitute copyright infringement?

On this very issue The New York Times (NYT) is taking an action that will surely generate plenty of?AI and legal?buzz. The NYT is exploring legal options whether to sue Microsoft-backed OpenAI and protect the intellectual property rights associated with its reporting.

High-Profile Legal Battle on Generative AI

A lawsuit against OpenAI would set up the most high-profile legal battle yet over copyright protection in the generative AI era.

For weeks,?The NYT?and the maker of ChatGPT have been locked in tense negotiations over reaching a licensing deal in which OpenAI would pay?The NYT?for incorporating its stories in the tech company's AI tools, but the discussions have become so contentious that the paper is now considering legal action.

ChatGPT in direct competition with The NYT

A top concern for?The NYT is that ChatGPT is becoming a direct competitor with the paper by creating text that answers questions based on the original reporting and writing of the paper's staff.

Then when someone searches online, they are served a paragraph-long answer from an AI tool that rephrases reporting from?The NYT. This results in less traffic to the publisher's website.

Google’s Privacy Policy on Data Collection by Search Engines

Recently Google’s privacy policy was updated as per which?the search giant may collect public data?from the web to train its various AI services, such as Bard or Cloud AI.

NYT’s Updated Terms of Service on content usage

In response to Google’s privacy policy The NYT recently updated its terms of service to prohibit using its content to train AI models. The?NYT?updated its?Terms of Service?on August 3rd to prohibit its content — inclusive of text, photographs, images, audio/video clips, “look and feel,” metadata, or compilations — from being used in the development of “any software program, including, but not limited to, training a machine learning or artificial intelligence (AI) system.” The updated terms now also specify that automated tools like website crawlers designed to use, access, or collect such content cannot be used without written permission from the publication.The?NYT?says that refusing to comply with these new restrictions could result in unspecified fines or penalties.?

Repercussions on OpenAI for Copyright Infringement

If a federal judge finds that OpenAI illegally copied?The NYT articles to train its AI model, the court could order the company to destroy ChatGPT's dataset, forcing the company to recreate it using only work that it is authorized to use.

Federal copyright law also carries stiff financial penalties, with violators facing fines up to $150,000 for each infringement "committed willfully.”

Usage of “Fair Use Doctrine” as defence?

Legal experts say AI companies are likely to invoke a defence known as "fair use doctrine," which allows for the use of a work without permission in certain instances, including teaching, criticism, research and news reporting.

However Lawyers for?The NYT?believe OpenAI's use of the paper's articles to spit out descriptions of news events should not be protected by fair use, arguing that it risks becoming something of a replacement for the paper's coverage.

Other legal issues with OpenAI

Recently Comedian and author Sarah Silverman, along with authors Christopher Golden and Richard Kadrey, have sued OpenAI and Mark Zuckerberg-owned Meta over dual claims of copyright infringement. Sarah alleged that she never gave ChatGPT permission to ingest a digital version of her 2010 memoir "The Bedwetter," which she says the company swallowed up from an illegal online "shadow library"

Hence The lawsuits alleged that OpenAI's ChatGPT and Meta's LLaMA (a set of large language models) were trained on illegally-acquired datasets containing their works.

In another major case, the US Federal Trade Commission (FTC) is probing the ChatGPT developer over user data collection and the publication of false information.The FTC has sent a 20-page letter to OpenAI, probing whether it has “run afoul of consumer protection laws by putting personal reputations and data at risk”.

Conclusion: OpenAI and Copyright Infringement

Not only The NYT but several media organisations have been affected by OpenAI’s training dataset. Earlier this month, several news organisations including?The Associated Press?and The?European Publishers’ Council?signed an open letter?calling for global lawmakers to usher in rules that would require transparency into training datasets and consent of rights holders before using data for training.

When millions of works are copied, you can see how that becomes a number that becomes potentially fatal for AI companies. It is evident that Copyright law is the sword that's going to hang over the heads of AI companies for several years unless they figure out how to negotiate a solution.

In today's world of copy-pasted content?AI?companies need to solve a huge new problem -- content authentication. And that must include tracking of derived content, including AI-generated rewrites and summaries.