Publishers Sue OpenAI and Microsoft for Copyright Infringement

A wave of lawsuits challenges the way AI models are trained, with publishers taking legal action against tech giants OpenAI and Microsoft. These companies are accused of using copyrighted content without permission to develop their AI models, sparking a debate about the intersection of technology and intellectual property. The future of AI development hangs in the balance as these legal battles unfold.

New York Times versus OpenAI and Microsoft

The New York Times filed a lawsuit against the two tech giants, alleging that they used millions of its articles to train their AI models without authorization. The newspaper argues that this constitutes copyright infringement and unfair competition. Several other publishers, including Reuters, The Associated Press, and Alden Global Capital’s Eight Daily Newspapers have also sued OpenAI and Microsoft for similar reasons.

Another notable case involves the Authors Guild. It filed a class-action lawsuit on September 20, 2023, representing several well-known authors, including John Grisham and Jodi Picoult. They allege that OpenAI’s scraping of their works without consent undermines authors’ rights and the commercial viability of their work.

The Fair Use Defense

OpenAI and Microsoft argue that their use of copyrighted material falls under the “fair use” doctrine of the US. Fair use allows limited use of copyrighted material without permission for purposes such as criticism, news reporting, teaching, or research. However, the publishers contend that the extensive use of their content by these companies goes far beyond fair use.  

Future of AI

The outcome of these lawsuits could have significant implications for the future of AI development. If the publishers prevail, it could lead to stricter regulations on the use of copyrighted material to train AI models. This could impact the ability of AI companies to access large amounts of data, essential for developing advanced AI systems.

On the other hand, if the tech companies win, it could set a precedent that allows for the broader use of copyrighted material in AI training. It might accelerate AI innovation.

How EU Law is Protecting Publishers’ Copyrights

The EU has implemented significant laws to protect publishers’ content rights in the digital space. Particularly as tech giants increasingly use third-party content to power search engines, AI, and social media. Here are the main legal frameworks shaping this protection:

• EU Copyright Directive (Article 15). This directive enforces that platforms must obtain permission or establish licensing agreements before using publishers’ content. Known as the “link tax,” Article 15 allows news publishers to negotiate compensation from tech companies, such as Google or Meta, when excerpts from their articles are displayed online. This measure ensures that content creators are fairly compensated for their work, rather than having their material freely circulated and monetized by tech platforms​.
• Digital Services Act (DSA). The DSA, although broader in scope than copyright, enhances transparency and content control on large platforms. It mandates that tech companies disclose how they rank, curate, and display content, helping publishers understand and monitor the use of their work. By doing so, it makes unauthorized use easier to detect and address​.
• Digital Markets Act (DMA). The DMA focuses on reducing monopolistic practices. The act limits the power of “gatekeeper” platforms, enabling fairer negotiation terms between tech companies and publishers. More specifically, it restricts gatekeepers from favoring their own content over third-party content, thus offering publishers a better opportunity to showcase their content without competition from the platforms’ proprietary offerings​.

Together, these laws gives publishers more control over how their content is used online. Further it ensures fair compensation, addressing the growing power imbalance between tech companies and content creators.

Martijn Hoogeveen

Founder and CEO of Icecat NV. Investor. Ph.D.