OpenAI and Microsoft Fair-Use Defence Challenged by New Evidence

A recent development in the copyright infringement lawsuit against OpenAI and Microsoft has reignited debate over their fair-use defence. Redacted evidence from a previously filed brief has come to light, with news publishers arguing that it undermines claims by the tech giants that generative AI merely transforms journalism rather than competing with it.

The case, In re OpenAI, Inc. Copyright Infringement Litigation, is being overseen by Judge Sidney H. Stein in the U.S. District Court for the Southern District of New York. The multidistrict litigation consolidates copyright claims against OpenAI and Microsoft from major news organisations over the use of their journalism in developing generative AI systems.

The redacted portions of the News Plaintiffs' Combined Summary Judgment Brief reveal statements from senior executives, including OpenAI president Greg Brockman, Microsoft chief executive Satya Nadella, and others. The publishers contend that this evidence supports their argument that generative AI services can substitute for original journalism rather than simply creating an unrelated new product.

The fair-use defence hinges on several factors, including the purpose and character of the use and its effect on the potential market for copyrighted work. Evidence suggesting that AI products could serve as substitutes for publisher content may be relevant to the publishers' argument that the technology affects the commercial market for journalism rather than operating separately from it.