Microsoft filed a motion in federal court on Monday seeking to dismiss parts of a lawsuit brought by the New York Times Company.
The Times sued Microsoft and its partner OpenAI on Dec. 27, accusing the two companies of infringing its copyrights by using its articles to train artificial intelligence technologies such as the online chatbot ChatGPT. Chatbots compete with news outlets as a source of reliable information, the lawsuit claims.
In its motion, filed in the U.S. District Court for the Southern District of New York, Microsoft argued that large language models, or LLMs, the technologies that drive chatbots, have not displaced the news article market and other materials on which they were trained.
The tech giant compared LLMs to VCRs, arguing that both are permitted by law. “Despite the Times’ claims, copyright law is no more an obstacle to the LLM than it was to the VCR (or piano, photocopier, personal computer, Internet, or search engine),” reads the motion.
In the late 1970s, movie studios sued Sony over its Betamax VCR, claiming 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 motion was similar to one made by OpenAI last week. Microsoft said three parts of the lawsuit should be dismissed in part because the Times showed no actual harm.
The Times had argued, for example, that if readers used Microsoft’s chatbot to seek advice from the Times-owned review site Wirecutter, it would lose revenue from users who clicked on its referral links. Microsoft argued that the Times’ lawsuit offered “no real facts to suggest a significant diversion of revenue from Wirecutter.”
Ian Crosby, a partner at Susman Godfrey and the Times’ lead attorney in the case, said in a statement Monday: “Microsoft does not dispute that it collaborated with OpenAI to copy millions of Times works without its permission to build its tools.” . Instead, he strangely compares LLMs to VCRs, even though VCR manufacturers never claimed that it was necessary to engage in massive copyright infringement to build their products.
Microsoft had no immediate comment.
The Times was the first major American media company to sue Microsoft and OpenAI over copyright issues related to its written works. Writers, computer programmers and other groups have also filed copyright infringement lawsuits against companies that build generative AI, technologies that generate text, images and other media.
Like other AI companies, Microsoft and OpenAI built their technology by providing massive amounts of digital data, some of it likely copyrighted. AI companies have said they can legally use such material to train their systems without paying for it because it is public and they do not reproduce the material in its entirety.
In its lawsuit, the Times included examples of OpenAI technology that reproduce excerpts from its articles almost word for word. Microsoft said training the technology on such items is “fair use” under the law because chatbots are a “transformative” technology that creates something new with copyrighted material. However, he did not try to dismiss the arguments against “fair use,” saying he would address these issues at a later time.