Microsoft attacks New York Times’ ‘doomsday’ AI suit
Tech company counters media company allegations that OpenAI and Microsoft infringed its IP in the training of its AI models | Draws comparison between the lawsuit’s ‘empty warnings’ and fears that followed the introduction of recording technology 40 years ago.
Microsoft has hit back at what it describes as “the doomsday futurology” of the narrative spun in the New York Times (NYT) lawsuit against the tech giant and generative artificial intelligence (AI) company, Open AI.
In a motion to dismiss part of the suit on Monday filed at a federal New York court, Microsoft drew comparisons with the negative implications outlined in the complaint and the “alarmist” opposition to the emergence of the video cassette recorder (VCR) in the 1970s—which allowed users to record television programmes.
‘Empty warnings’
In December, the media company alleged that OpenAI and Microsoft infringed its IP in the training of its AI models, and that the pair had used this work to develop and commercialise their generative AI products without obtaining its authorisation.
In its motion, Microsoft began by pointing out how the entertainment industry had flourished when the VCR opened new markets and revenue streams—but warned that “empty warnings nearly won the day”.
More than four decades later, Microsoft argues that NYT is using “might and its megaphone to challenge the latest profound technological advance”.
The company describes its ‘large language model’, as an AI breakthrough, with huge potential “to improve the way people live and work”, insisting that “copyright law is no more an obstacle to the LLM than it was to the VCR (or the player piano, copy machine, personal computer, internet, or search engine)”.
Fair use argument
“Content used to train LLMs does not supplant the market for the works, it teaches the models language. It is the essence of what copyright law considers transformative—and fair use.”
The Times’ suggestion that there is “nothing ‘transformative’” about this activity, “ignores extensive authority holding otherwise”, as Microsoft will show on summary judgment,” adds the motion.
Additionally, the filing decries “unsubstantiated suggestions” that the public’s use of generative pre-trained transformer (GPT)-based products harms The Times, and poses a mortal threat to “independent journalism” at “a cost to society [that] will be enormous”.
None of this, contends Microsoft, is based on how real-world people actually use the GPT-based tools at issue.
“Rather, The Times crafted unrealistic prompts to try to coax the GPT-based tools to output snippets of text matching The Times’ content—a technique The Times buries in lengthy exhibits to the complaint,” adds Microsoft.
‘Theoretical claims’
The tech company argues that three claims in particular should be dismissed.
Pointing to the allegation that Microsoft is contributorily liable for end-user copyright infringement through use of GPT-based tools, the tech company counters that the media outlet alleges no end-user infringement at all—and no knowledge on Microsoft’s part that end-users are making infringing use of LLMs.
Second, Microsoft challenges the allegation that it violated the Digital Millennium Copyright Act’s ‘copyright management information’—or CMI—provisions.
“Those provisions are designed to prevent defendants from removing CMI from a copy of a work where doing so is likely to facilitate infringement or make it harder to detect. The Times never explains how this would happen in the real world,” it says.
“Its only examples are derived from its own prompts for particular Times content, which would require the user to already know the genesis of that content. And in any event, the outputs the Complaint cites are not copies of works at all, but mere snippets.”
Finally, Microsoft accuses the plaintiff of repackaging its copyright claims based on GPT-model outputs as state law misappropriation torts, suggesting that the GPT-based tools appropriate “time-sensitive” news and Wirecutter reviews.
“Again, this is purely theoretical. But even if it were not, the claims are preempted by the Copyright Act, which does not permit plaintiffs to evade key limitations like fair use by dressing up copyright claims as state-law torts,” says Microsoft.
Microsoft concluded by saying that it looks forward to litigating the issues in this case that are genuinely presented, and “to vindicating the important values of progress, learning, and the sharing of knowledge”.
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