On December 27, 2023, The New York Times (“The Times”) filed a complaint (“Complaint”) against OpenAI and Microsoft in the Southern District of New York for mass copyright infringement, violations of the Digital Millennium Copyright Act, common law unfair competition by misappropriation and trademark dilution. This action follows other lawsuits concerning the unauthorized use of intellectual property, including Sarah Silverman’s lawsuit against Meta. However, The Times is the first major American media organization to file suit. The Times accuses OpenAI of copying and using millions of its copyrighted works in building OpenAI’s large-language models (“LLMs”) for their generative AI systems, including ChatGPT and Microsoft’s Copilot. The Times seeks unspecified “billions of dollars in statutory and actual damages … for the unlawful copying and use of The Times’ uniquely valuable work.” Complaint at 4, New York Times v. Microsoft Corp., No. 1:23-cv-11195 (S.D.N.Y. 2023). The Times attached to the Complaint numerous examples of OpenAI’s generative AI tools producing output that was identical or that closely summarized or mimicked the expressive style of its copyrighted material. The Times reached out to Microsoft and OpenAI in April 2023 to address its intellectual property concerns and negotiate a commercial agreement or “technological guardrails that would allow a mutually beneficial exchange,” but the discussion proved unsuccessful. Id. at 16.

Media organizations have begun adapting their operations in response to generative AI. The Associated Press entered into an agreement with OpenAI to license AP’s archive of news stories to use in their LLMs. Axel Springer, which owns Politico and Business Insider, announced a global partnership with OpenAI to help advance OpenAI’s LLM training. On December 12, 2023, the Times hired its first editorial director of Artificial Intelligence Initiatives to develop protocols for its use of AI.