Following a landmark lawsuit brought by the New York Times against OpenAI and Microsoft over copyright infringement by large-language-model systems, OpenAI is now striking back. In a motion filed this week, the artificial intelligence company responsible for ChatGPT, says that the Times used “deceptive prompts” to get ChatGPT to copy its content.
According to The Verge, "OpenAI asserts that the Times exploited a bug that it’s currently working to fix and that the outlet fed articles directly to the chatbot to get it to spit out verbatim passages."
OpenAI further argued in the motion that “in the real world, people do not use ChatGPT or any other OpenAI product" to serve up articles at will. “Nor could they.”
Ian Crosby, lead counsel for the Times, responded to the motion in an email to The Verge saying, "that calling the outlet’s efforts a hack is a mischaracterization and that the outlet was 'simply using OpenAI’s products to look for evidence that they stole and reproduced The Times’s copyrighted works.'"
He added to Ars Technica that "OpenAI, which has been secretive and has deliberately concealed how its products operate, is now asserting it’s too late to bring a claim for infringement or hold them accountable. We disagree. …It's noteworthy that OpenAI doesn’t dispute that it copied Times works without permission within the statute of limitations to train its more recent and current models.”
It's undoubted that the future of AI and the systems that power it will be shaped in large part by copyright law. However, “there isn’t a clear answer to whether or not in the United States that is copyright infringement or whether it’s fair use,” Ryan Abbott, an IP lawyer at Brown Neri Smith & Khan, told the New York Times. “In the meantime, we have lots of lawsuits moving forward with potentially billions of dollars at stake.”
But Jane Ginsburg at Columbia Law School is a bit more skeptical. As she told the Times, "Ultimately, whether or not this lawsuit ends up shaping copyright law will be determined by whether the suit is really about the future of fair use and copyright, or whether it’s a salvo in a negotiation."
Sarah Silverman
The Times isn't the only entity to have sued OpenAI over such infringement claims. Last year, comedian and actress Sarah Silverman joined other authors in six claims against the AI powerhouse: direct copyright infringement; vicarious infringement; violation of the Digital Millennium Copyright Act (DMCA) by removing copyright management information; unfair competition; negligence; and unjust enrichment. This month, a judge dismissed all claims except direct infringement. "Nowhere in plaintiffs’ complaint do they allege that defendants reproduced and distributed copies of their books,” US District Court Judge Araceli Martínez-Olguín wrote, cites The Verge, adding that "“risk of future damage to intellectual property” was too speculative.
THE VERDICT:
Much like the Social Media cases, the lawsuits against OpenAI and Microsoft could remake the AI industry. Should the New York Times win its case (and that may well happen), OpenAI may be forced to toss its models and rebuild. What's more, should that happen, individual content creators and large internet platforms alike (I'm looking at you, Reddit) have been scrambling to protect and paywall their IP from new large-language-model scrapping.
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