Microsoft filed a motion in federal court on Monday seeking to dismiss parts of the lawsuit brought by The New York Times Company.
The Times sued Microsoft and its partner OpenAI on December 27, accusing the two companies of violating its copyrights by using its articles to train AI technologies such as the online chatbot ChatGPT. Chatbots compete with news outlets as a source of reliable information, the lawsuit said.
In this motionfiled in the US District Court for the Southern District of New York, Microsoft argued that large language models, or LLMs — the technologies that drive chatbots — have not taken over the market for news articles and other material that they are used to.
The tech giant compared LLMs to videocassette recorders, arguing that both are allowed under the law. “Despite The Times’ contentions, copyright law is no more an obstacle to the LLM than the VCR (or the piano player, copy machine, personal computer, internet or search engine),” the motion read.
In the late 1970s, movie studios sued Sony over its Betamax VCR, arguing that it would allow people to illegally copy movies and television shows. But the courts ultimately found that making these copies for personal viewing was fair use under the law.
Microsoft’s move is similar to what OpenAI did last week. Microsoft said three parts of the suit should be dismissed in part because The Times has not shown actual damages.
The Times has argued, for example, that if readers use Microsoft’s chatbot to research recommendations from review site Wirecutter, which is owned by The Times, it will lose revenue from users who click through. in its referral links. Microsoft argued that the Times’ case offered “no truth in the world to suggest significant revenue diversion from Wirecutter.”
Ian Crosby, a Susman Godfrey partner who is lead counsel for The Times in the case, said in a statement Monday: “Microsoft does not dispute that it worked with OpenAI to copy millions of The Times’ works without its permission to develop its tools. . . Instead, it oddly compares LLMs to VCRs even though VCR makers have never argued that it was necessary to engage in massive copyright infringement to develop their products.”
Microsoft had no immediate comment.
The Times is the first major American media company to sue Microsoft and OpenAI over copyright issues related to its written works. Writers, computer coders and other groups have also filed copyright lawsuits against companies that develop generative AI, technologies that generate text, images and other media.
Like other AI companies, Microsoft and OpenAI developed their technology by feeding it massive amounts of digital data, some of which is likely copyrighted. AI companies have claimed that they can legally use such material to train their systems without paying for it because it is public and they do not produce the material in its entirety.
In its suit, The Times included examples of OpenAI technology reproducing passages from its articles almost word for word. Microsoft said that practicing the technology in such articles is “fair use” under the law because chatbots are a “transformative” technology that creates something new using copyrighted material. However, it did not seek to dismiss arguments against “fair use,” saying it would address these issues later.
