Microsoft urged a federal court to dismiss part of The New York Times' copyright lawsuit against itself and OpenAI, claiming that the NYT lawsuit is similar to the movie industry's attempts to kill the VCR in the 1980s.
Microsoft's filing in US District Court for the Southern District of New York begins with a well-known 1982 quote from Motion Picture Association of America (MPAA) President Jack Valenti, who told Congress that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."
"The analogy was part of an all-out effort by television and movie producers to stop a groundbreaking new technology," Microsoft wrote yesterday, comparing the movie industry's claims of copyright infringement to the NYT lawsuit in which both OpenAI and Microsoft are defendants. Microsoft is an investor in OpenAI.
Microsoft claimed that the newspaper company's arguments are similar to those rejected by the US Supreme Court in the 1984 case, Sony Corporation of America v. Universal City Studios. "Despite The Times's contentions, copyright law is no more an obstacle to the LLM [large language model] than it was to the VCR (or the player piano, copy machine, personal computer, Internet, or search engine)," Microsoft wrote.
Microsoft's VCR argument relates to a portion of the NYT lawsuit that claims the defendants are liable for users' copyright infringement. "At most, The Times's allegations establish Microsoft's awareness that someone could use a GPT-based product to infringe," Microsoft wrote. "Of course, the same was true of the VCR—as it is of word processors, hard drives, social media feeds, Internet connections, and so forth. Fortunately, the Supreme Court long ago rejected liability merely based on offering a multi-use product."
A New York Times lawyer criticized the Microsoft filing. "Microsoft doesn't dispute that it worked with OpenAI to copy millions of The Times's works without its permission to build its tools. Instead, it oddly compares LLMs to the VCR even though VCR makers never argued that it was necessary to engage in massive copyright infringement to build their products," Ian Crosby, a Susman Godfrey attorney who is representing the Times, said in a statement provided to Ars today.
AdvertisementNYT accused of “doomsday futurology”
OpenAI claimed last week that The New York Times "paid someone to hack OpenAI's products" in order to set up the lawsuit. Microsoft accused the NYT of using "unrealistic prompts to try to coax the GPT-based tools to output snippets of text matching The Times's content... Nowhere does The Times allege that anyone other than its legal team would actually do any of this, and certainly not on a scale that merits the doomsday futurology it pushes before this Court and has boosted to its readers."
The NYT lawsuit complains that OpenAI and Microsoft's AI products use LLMs "that were built by copying and using millions of The Times's copyrighted news articles, in-depth investigations, opinion pieces, reviews, how-to guides, and more."
"Through Microsoft's Bing Chat (recently rebranded as 'Copilot') and OpenAI's ChatGPT, Defendants seek to free-ride on The Times's massive investment in its journalism by using it to build substitutive products without permission or payment," the lawsuit said.
Microsoft filed a partial motion to dismiss the lawsuit, saying the court should throw out claims for contributory copyright infringement that allege Microsoft and OpenAI are liable for users' infringement. The Times claimed that Microsoft and OpenAI "materially contributed to and directly assisted with the direct infringement perpetrated by end-users."
In addition to the contributory infringement claim, the NYT lawsuit contains allegations of direct copyright infringement related to the training of LLMs using copyrighted material. The NYT also alleged vicarious copyright infringement because "Microsoft controlled, directed, and profited from the infringement perpetrated by the OpenAI Defendants."
Microsoft's motion didn't ask the court to throw out the direct and vicarious infringement claims, but said the company will fight them later on in litigation with a fair-use defense. "As the Complaint anticipates in its assertion that creating an LLM is not 'transformative,' these claims will ultimately turn, among other things, on a fair-use defense under 17 U.S.C. § 107 not suited to the pleading stage," Microsoft wrote.
GPT has “universe of entirely lawful uses”
Of course, the use of generative artificial intelligence and language models is quite a bit different than using tapes to copy movies and TV shows. But Microsoft argues that the newspaper's contributory infringement theory "fails on the very same basis the challenge to the VCR failed four decades ago," because it tries to impose liability based on "the design or distribution of a product capable of substantial lawful use."
Microsoft wrote:
The Times alleges that Microsoft is contributorily liable for end-user copyright infringement through use of GPT-based tools. But it alleges no end-user infringement at all, and thus no knowledge on Microsoft's part that end-users are making infringing use of LLMs that have a universe of entirely lawful uses. The claim is therefore the exact one the Supreme Court rejected when it blessed the VCR.
The Times' lawsuit alleged that Microsoft and OpenAI contributed to users' infringement by "developing LLM models capable of distributing unlicensed copies of Times Works to end-users," by training the GPT LLMs with Times works, and by "deciding what content is actually outputted by the GenAI products."
The NYT's "allegations do not contain a single allegation concerning something that has actually happened in the real world as a result of the development, offering, or use of GPT-based products," Microsoft said. The NYT fed portions of its articles into the GPT tools but "does not explain why any real person, already in possession of a New York Times article, would ever want to feed part of that prompt into a GPT-based product to generate a part of the rest of the article," Microsoft argued.
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Crosby, the NYT lawyer, defended the newspaper's method of gathering evidence today. "In spite of Microsoft's protestations about how The Times described in detail the unprecedented theft of copyrighted works by the defendants, the bottom line is that The Times looked for its stolen works and found them. Microsoft now blames The Times for bringing this to light as an excuse for their and OpenAI's wrongdoing." Crosby said.
Microsoft also wants the court to throw out a claim that it and OpenAI misappropriated NYT content and another claim that they violated the Digital Millennium Copyright Act by removing "copyright-management information" from Times articles when using them to train AI models.
The likely outcome of the case is far from certain, according to an analysis by Timothy B. Lee and James Grimmelmann published on Ars last month. The fair-use defense may be bolstered by a 2015 appeals court ruling that found Google's scanning millions of copyrighted books was legal, but there's more to consider.
As Lee and Grimmelmann argued, "AI companies are on shakier legal ground than Google was in its book search case." Pointing to a copyright lawsuit that destroyed MP3.com, they wrote that "courts don't always side with technology companies in cases where companies make copies to build their systems."
