(New York Times Company v. Microsoft Corp., et al., No. 23-11195, Daily News, LP, et al. v. Microsoft Corp., et. al., No. 24-3285, The Center for Investigative Reporting, Inc. v. OpenAI, Inc., et al., No. 24-4872, S.D. N.Y.)
(OpenAI’s letter motion to compel with attachments available. Document #46-241113-064B. Defendants’ reply on consolidation available. Document #46-241113-072B.)
The motion to compel was filed Oct. 22 while the reply brief on the motion to consolidate was filed Oct. 25.
The New York Times Co. (NYT) filed the suit in December in the U.S. District Court for the Southern District of New York. The suit names as defendants Microsoft Corp. and OpenAI Inc., OpenAI LP, OpenAI GP LLC, OpenAI LLC, OpenAI Opco LLC, OpenAI Global LLC, OAI Corp. LLC and OpenAI Holdings Inc. (collectively, OpenAI). NYT claims that the defendants unlawfully trained ChatGPT on millions of stories copyrighted by NYT. ChatGPT is built on a large quantity of sources, but NYT articles were given “particular emphasis” in training the large language model AI, NYT claims.
Compel
NYT alleges a count of copyright infringement under Title 17 Section 501 of the U.S. Code, 17 U.S.C. § 501, against all defendants; a count of vicarious copyright infringement against Microsoft, OpenAI Inc., OpenAI GP, OpenAI LP, OAI Corp. LLC, OpenAI Holdings LLC and OpenAI Global LLC; a count of contributory copyright infringement against Microsoft; a count of contributory copyright infringement against all of the defendants; a count of violation of Section 1202 of the Digital Millennium Copyright Act, 17 U.S.C. § 1202, against all defendants; a count of common-law unfair competition by misappropriation against all defendants; and a count of trademark dilution under Title 15 Section 1125(c) of the U.S. Code, 15 U.S.C. § 1125(c), against all defendants.
NYT’s suit was consolidated with a similar suit brought in the same court by the Daily News LP; Chicago Tribune Co. LLC; Orlando Sentinel Communications Co. LLC; Sun-Sentinel Co. LLC; San Jose Mercury News LLC; DP Media Network LLC; ORB Publishing LLC; and Northwest Publications LLC (collectively, news plaintiffs).
The parties exchanged various discovery, but in an Oct. 22 letter brief, OpenAI says NYT refuses to produce evidence of its alleged damages, how NYT benefits from ChatGPT and other AIs and the impact of AI on journalism generally, including NYT’s use of other AIs. NYT refuses to produce this evidence despite its relevance to NYT’s claims, OpenAI argues.
While NYT alleges widespread negative impact from AI, its offered discovery on the topic is “far too narrow,” OpenAI says. NYT wants to produce only evidence showing readership and revenue trends from 2018 but no documents or communications regarding the causes of those changes, OpenAI says.
“That refusal is unjustified. The Times’ alleged damages and its position on the fourth fair use factor hinge upon the supposedly dramatic effect of OpenAI’s conduct on the Times’ revenues and audience. . . . Likewise, OpenAI’s fair use defense looks to whether OpenAI’s conduct has had an effect on the market for the Times’ works,” OpenAI argues. Whether NYT’s readership has seen a decline due to AI or some other independent reason is central to the case and entirely relevant, OpenAI argues.
Positives
Further, it is NYT that has put the impact of AI front and center in the case by claiming that it represents the end of journalism, OpenAI argues. OpenAI says it is entitled to discovery that shows that those claims are overblown and that fair use defense apply.
OpenAI urged the court to reject NYT’s contention that discovery into the impact of third-party AI products on journalism is irrelevant. OpenAI says that while its ChatGPT product is at the forefront of AI, the product category itself is broad. The impact other AI products are having on journalism and the NYT is relevant to claims targeting ChatGPT in particular. Discovery on this issue could also show the positive role AI is having on journalism and is “highly relevant to OpenAI’s fair use defense,” the company tells the court.
On Oct. 4, OpenAI moved to consolidate the news plaintiffs’ suit with a similar one brought by the Center for Investigative Reporting Inc. (CIR).
Discovery
In an Oct. 18 response to the motion to consolidate, the news plaintiffs said they do not oppose coordinating the cases or object in principle to consolidation as long as consolidation does not delay the existing case schedule. Should the court consolidate the cases, the news plaintiffs ask that they be excused from coordinating with class plaintiffs suing OpenAI in California.
The defendants contend that CIR can meet the current Dec. 20 deadline for discovery and that consolidation will not delay the existing schedule, the plaintiffs said. “The News Plaintiffs are doubtful this can be done in practice, but if true, do not oppose. But if consolidation with CIR necessitates an extension to the case schedule, now or later, consolidation must be denied,” they say.
The news plaintiffs also argue that if permitted, consolidation should end with CIR. NYT filed its suit in December 2023 and is moving toward meeting the Dec. 20 discovery deadline. The defendants’ attempts to have plaintiffs in New York federal court coordinate with plaintiffs pursuing claims in California federal court on depositions has already demonstrated that it is “untenable and inefficient” to have “too many cooks in the same kitchen,” the news plaintiffs argue.
“While it may certainly be easier for Defendants to defend against fewer lawsuits at once, justice for the News Plaintiffs should not be stymied because Defendants engaged in such wide-ranging infringement that many rightsholders have sued them, and will likely continue to do so,” the news plaintiffs argue.
Overblown Concerns
In reply, the defendants say CIR does not oppose joint management of the cases or their consolidation. Concerns about the length required for discovery in the case brought by CIR are misplaced. Discovery in CIR’s suit should be quicker since the case will have the benefit of the head start provided by the discovery in the news plaintiffs’ cases. The news plaintiffs’ other objections fair no better and actually prove that consolidation would likely help avoid future disputes, the defendants argue.
Further, the Dec. 20 deadline is an interim one, and should the court extend it, many of the concerns raised by the plaintiffs would be moot, the defendants argue. CIR contends that it would agree to be bound to discovery rulings in the news plaintiffs’ case with an exception for newly discovered evidence. But any discovery occuring after the news plaintiffs’ case would constitute new evidence that under its proposal would allow a challenge to those rulings. This situation only further demonstrates why consolidation makes sense, the defendants argue.
Counsel
NYT is represented by Ian Crosby of Susman Godfrey LLP in Seattle, Davida Brook and Ellie Dupler of the firm’s Los Angeles office and Elisha Barron and Tamar Lusztig of its New York office and Steven Lieberman, Jennifer B. Maisel and Kristen J. Logan of Rothwell, Figg, Ernst & Manbeck PC in Washington, D.C.
The news plaintiffs are represented by Steven Lieberman, Jennifer B. Maisel, Robert Parker, Jenny L. Colgate, Kristen J. Logan and Bryan B. Thompson of Rothwell, Figg, Ernst & Manbeck PC in Washington and Jeffrey A. Lidenbaum of the firm’s office in Ossining, N.Y.
CIR is represented by Jonathan Loevy, Michael Kanovitz, Lauren Carbajal, Stephen Stich Match, Matthew Topic, Thomas Kayes and Steven Art of Loevy & Loevy in Chicago.
OpenAI is represented by Robert A. Van Nest, R. James Slaughter, Paven Malhotra, Michelle S. Ybarra, Nicholas S. Goldberg, Thomas E. Gorman, Katie Lynn Joyce and Sarah Salomon of Keker, Van Nest & Peters LLP in San Francisco.
Microsoft is represented by Annette L. Hurst of Orrick, Herrington & Sutcliffe LLP in San Francisco, Christopher J. Cariello of the firm’s New York office and Sheryl Koval Garko and Laura Brooks Najemy of its Boston office.
(Additional documents available: News plaintiffs’ response on consolidation. Document #46-241113-070B. CIR’s opposition to consolidation. Document #46-241113-071B. Defendants’ motion to consolidate. Document #46-241113-016B. Consolidated complaint. Document #46-240605-009C. CIR complaint with attachments. Document #46-241002-049C.)