Starting last year, various rightsholders have filed lawsuits against companies that develop AI models.

The list of complainants includes record labels, book authors, visual artists, and even the New York Times. These rightsholders all object to the presumed use of their work to train AI models without proper compensation.

The New York Times lawsuit targets OpenAI and Microsoft , who have both filed separate motions to dismiss this month. Microsoft’s response included a few paragraphs equating the recent AI fears to the doom and gloom scenarios that were painted by Hollywood when the VCR became popular in the 1980s.

VCR Doom and Gloom

The motion to dismiss cited early VCR scaremongering, including that of the late MPAA boss Jack Valenti, who warned of the potentially devastating consequences this novel technology could have on the movie industry.

This comparison triggered a reply from The Times, which clarified that generative AI is nothing like the VCR. It’s an entirely different technology with completely separate copyright concerns, the publication wrote . At the same time, the company labeled Microsoft’s other defenses, including fair use, as premature.

Before the New York court rules on the matter, Microsoft took the opportunity to respond once more. According to the tech giant, The Times took its VCR comparison too literally.

“Microsoft’s point was not that VCRs and LLMs are the same. It was that content creators have tried before to smother the democratizing power of new technology based on little more than doom foretold. The challenges failed, yet the doom never came.

“And that is why plaintiffs must offer more than imagined fears before the law will block innovation. That The Times can only think to dodge this point is telling indeed,” Microsoft added.

‘No Copyright Infringements Cited’

For the court, it is irrelevant whether the VCR comparisons make sense or not; the comparison is just lawsuit padding. What matters is whether The Times has pleaded copyright infringement and DMCA claims against Microsoft, sufficient to survive a motion to dismiss.

The Times argued that its claims are valid; the company asked the court to move the case forward, so it can conduct discovery and further back up its claims. However, Microsoft believes the legal dispute should end here, as no concrete copyright infringements have been cited.

“Having failed to plausibly plead its claims, The Times mostly just pleads for discovery. But the defects in its Complaint are too fundamental to brush aside. The Times is not entitled to proceed on contributory infringement claims without alleging a single instance of end-user infringement of its works,” Microsoft notes.

More Shortcomings

Similar shortcomings also apply to the other claims up for dismissal, including the alleged DMCA violation, which according to Microsoft lacks concrete evidence.

As highlighted previously, The Times did reference a Gizmodo article that suggested ChatGPT’s ‘Browse with Bing’ was used by people to bypass paywalls. However, Microsoft doesn’t see this as concrete evidence.

“This is like alleging that ‘some online articles report infringement happens on Facebook’. That does not support a claim. The Times cannot save a Complaint that identifies no instance of infringement by pointing to a secondary source that identifies no instance of infringement.”

Similarly, allegations that The Times’ ChatGPT prompts returned passages of New York Times articles isn’t sufficient either, as that’s not “third-party” copyright infringement.

“The Times is talking about its own prompts that allegedly “generated … outputs … that … violate The Times’s copyrights.’ An author cannot infringe its own works,” Microsoft notes.

Microsoft would like the court to grant its motion to dismiss, while The Times is eager to move forward. It’s now up to the court to decide if the case can progress, and if so, on what claims.

Alternatively, the parties can choose to settle their disagreements outside of court but, thus far, there’s no evidence to suggest that they’re actively trying to resolve their disagreements.

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A copy of Microsoft’s reply memorandum in support of its partial motion to dismiss, submitted at a New York federal court, can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

“The VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

The quote above comes from the late Jack Valenti , who was the Motion Picture Association’s boss in 1982, when he warned the House of Representatives of the looming video recorder threat.

With the benefit of hindsight, the VCR wasn’t all that scary for Hollywood. The movie industry continued to flourish in the decades that followed, while technology continued along the path of progress too. New inventions have come along and for many rightsholders, generative AI (GenAI) is today’s growing concern.

The VCR threat cemented itself in legal history through the Betamax decision which still plays a role today, for various reasons. As reported yesterday , the decision was cited in the ongoing legal battle between book publishers and the Internet Archive. Simultaneously, the VCR is also starring in a legal dispute between the New York Times and Microsoft.

NYT vs. OpenAI/Microsoft

Late last year The Times sued OpenAI and Microsoft , alleging that its generative AI models were trained on copyrighted news articles. The news publication also suggested that, when prompted the right way, ChatGPT could recite content from these articles.

OpenAI previously asked the court to dismiss these claims , alleging that the New York Times ‘hacked’ its service to produce the ‘highly anomalous’ outputs. The Times’ DMCA violation claim, misappropriation claim, and contributory infringement claim either fail or fall short, OpenAI added.

Microsoft filed a separate motion to dismiss. Instead of focusing on alleged hacking practices, the company led with Jack Valenti’s ‘Boston Strangler’ analogy, part of an all-out effort by television and movie producers to stop a groundbreaking new technology.

Hollywood was ultimately unable to stop the VCR. The ‘scaremongering’ didn’t convince the Supreme Court in ‘Sony (Betamax) v. Universal City Studios’ and the VCR was declared legal. The rest is history.

Microsoft Cites VCR Scaremongering

According to Microsoft, the legal crusade against AI models should be seen similarly. Instead of alleging concrete copyright infringement by end users, the technology itself is framed as copyright-infringing. That’s incorrect, the tech giant countered in its motion to dismiss earlier this month.

“At most, The Times’s allegations establish Microsoft’s awareness that someone could use a GPT-based product to infringe. 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,” Microsoft added.

Microsoft asked the court to dismiss several key claims, including contributory copyright infringement. The claim fails because there’s no evidence that the tech company knew of any third-party copyright infringements or contributed to them, Microsoft argued.

NYT: AI is Nothing Like the VCR

Yesterday, The Times responded to the motion to dismiss, starting with a VCR analogy. According to the news outlet, the VCR is nothing like the GenAI threat they’re facing today.

“Defendants’ generative AI models are nothing like VCRs. Sony didn’t copy movies and television shows to build VCRs; Defendants built their AI models by copying millions of Times articles and other copyrighted works without permission or payment.”

Unlike the VCR, GPT services are trained on copyrighted content without permission and can reproduce these in part, The Times argues.

“Defendants are using their AI models to copy and summarize even breaking news articles that users would otherwise seek on a publisher’s website. If VCRs had been built with movies to make movies that compete with movies, or if Sony oversaw the VCR’s infringing users, Sony would have gone the other way.”

Microsoft’s defense is largely predicated on its conclusion that the use of copyrighted content for AI training is fair use. The Times sees this as an “absurd argument” but doesn’t respond to it in detail. Instead, it mostly sticks to its original claims.

‘Using AI to Bypass Paywalls’

One of the key claims in the complaint is contributory copyright infringement. According to legal precedents, a party can be found liable for copyright infringement if it induces, causes, or materially contributes to it. This is particularly true when a service has few non-infringing uses.

This claim was also used against Sony’s VCR but that ultimately failed. The Times hasn’t listed any concrete infringements in its complaint but notes that its pleadings against Microsoft are sufficient to survive a motion to dismiss at this stage.

“Although Microsoft argues that copyright infringement by users of its GenAI products is just a ‘theoretical possibility’, the question at this stage is whether The Times has plausibly alleged that such infringement has taken place. The answer is yes,” Microsoft notes.

To illustrate, The Times references a Gizmodo article that suggested ChatGPT’s ‘Browse with Bing’ was paused after people used it to bypass paywalls. Microsoft wasn’t blind to these copyright infringement issues, The Times notes, stressing that it previously alerted the company to its concerns.

All in all, the Times wants the case to move forward in its entirety while Microsoft would like it to end here. It’s now up to the court to decide if the case can go forward, and on what claims. Alternatively, the parties can choose to settle their disagreements outside of court but, thus far, there’s no evidence to show either side prefers that option.

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A copy of Microsoft’s motion to dismiss, submitted at a New York federal court, can be found here (pdf) and The Times’ response is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

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A collection of work by a giant of New York journalism is both a joy and a lesson, particularly on objectivity and its limits

For decades, Calvin Trillin has been one the most celebrated journalists in New York. This splendid collection of his pieces is filled with reminders of what makes him special: he is equally good at the serious stuff and “pieces meant to amuse”.

The press is the subject that knits these stories together. It occurred to Trillin that these articles “amounted to a picture from multiple angles of what the press has been like” since he entered the game. Many are from the 1960s, 70s and 80s. They provide the flavor of the glory days of print journalism, when newsstands were stuffed with magazines and papers written by giants like Murray Kempton, Molly Ivins and Edna Buchanan – and giants in their own minds, like RW Apple Jr – each of whom gets their due here, in Trillin’s 32nd book.

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Le New York Times, qui détient les droits du très populaire Wordle, a envoyé des demandes de retrait aux développeurs de variantes du jeu. Des milliers de sites pourraient fermer.

The tech giant said the lawsuit was near-sighted and akin to Hollywood’s losing backlash against the VCR

Microsoft has responded to a copyright infringement lawsuit brought by the New York Times over alleged use of content to train generative artificial intelligence, calling the claim a false narrative of “doomsday futurology”. The tech giant said the lawsuit was near-sighted and akin to Hollywood’s losing backlash against the VCR.

In a motion to dismiss part of the lawsuit filed Monday, Microsoft, which was sued in December alongside ChatGPT-maker OpenAI , scoffed at the newspaper’s claim that Times content receives “particular emphasis” and that tech companies “seek to free-ride on the Times’s massive investment in its journalism”.

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