Times’ AI Lawsuit Reminiscent of ‘Alarmism’ Over VCR, Says Microsoft Motion to Dismiss

The New York Times Co.'s copyright infringement challenge to Microsoft’s large language models (LLMs) for AI (see 2312270044) harkens back to the entertainment industry’s alarmist reaction to the VCR, said Microsoft’s memorandum of law Monday (docket 1:23-cv-11195) in U.S. District Court for Southern New York in Manhattan in support of its motion to dismiss three claims of the Times’ complaint.

The U.S. Supreme Court ultimately rejected the entertainment industry’s “alarmism” and voted for technological innovation and consumer choice with its “seminal” 1984 Betamax decision, said Microsoft’s memorandum. The decision didn’t destroy Hollywood, but did “quite the opposite,” it said. The entertainment industry “flourished when the VCR opened new markets and revenue streams,” it said. “But at the time, empty warnings nearly won the day,” it said.

Fast-forward to the present, and the Times “uses its might and its megaphone to challenge the latest profound technological advance,” LLMs, said the memorandum. “By harnessing humanity’s collective wisdom and thinking, LLMs help us learn from each other, solve problems, organize our lives, and launch bold new ideas,” it said. Because Microsoft firmly believes in LLMs’ capacity to improve the way people live and work, “it has collaborated with OpenAI to help bring their extraordinary power to the public, while leading the way in promoting safe and responsible AI development,” it said.

Copyright law “is no more an obstacle to the LLM than it was to the VCR,” despite the Times’ contentions to the contrary, said the memorandum. Content that's used to train LLMs doesn’t “supplant the market for the works,” but teaches the models language, it said. It’s the "essence" of what copyright law “considers transformative -- and fair -- use,” it said.

A program called a “transformer” evaluates massive amounts of text, converts that text into trillions of constituent parts, discerns the relationships among all of them, and yields a natural language machine that can respond to human prompts, said the memorandum. The Times’ suggestion that there’s nothing transformative about that “ignores extensive authority holding otherwise, as Microsoft will show on summary judgment,” it said.

Microsoft’s motion to dismiss “addresses those claims that are based not on building the GPT-based models, but on unsubstantiated suggestions” that the public’s use of GPT-based products harms the Times and poses a “mortal threat” to independent journalism,” said the memorandum. None of this is based on how real-world people “actually use the GPT-based tools at issue,” it said.

That alarmism is based on the “unrealistic prompts” crafted by the Times “to try to coax the GPT-based tools to output snippets of text” matching the Times’ content, said the memorandum. It’s a technique that the Times “buries in lengthy exhibits” to the complaint. Nowhere does the Times “allege that anyone other than its legal team would actually do any of this," and certainly not on a scale that merits the “doomsday futurology” it pushes before this court and has boosted to its readers, it said.

Three claims in particular should be dismissed, said the memorandum. The Times alleges that Microsoft is contributorily liable for end-user copyright infringement through use of GPT-based tools, it said. “But it alleges no end-user infringement at all, and thus no knowledge on Microsoft’s part that end-users are making infringing use of LLMs that have a universe of entirely lawful uses,” it said: “The claim is therefore the exact one the Supreme Court rejected when it blessed the VCR.”

On the allegation in the complaint that Microsoft violated the Digital Millennium Copyright Act’s copyright management information provisions, those provisions are designed to prevent defendants from removing that information from a copy of a work where doing so is likely to facilitate infringement or make it harder to detect, said the memorandum. The Times never explains how this would happen in the real world, it said.

In repackaging its copyright claims based on GPT-model outputs as state-law “misappropriation torts,” the Times suggests that the GPT-based tools “appropriate” time-sensitive news and Wirecutter reviews, said the memorandum. This is “purely theoretical,” it said. But even if it weren’t, the claims are preempted by the Copyright Act, which doesn’t permit plaintiffs “to evade key limitations like fair use by dressing up copyright claims as state-law torts,” it said.

Once the claims challenged here are dismissed, Microsoft “looks forward to litigating the issues in this case that are genuinely presented,” said the memorandum. It also seeks to vindicate “the important values of progress, learning, and the sharing of knowledge,” it said.