Times’ AI Copyright Infringement Claims ‘Just Hypothetical,’ Says Microsoft Reply

There’s “no solution” for the “core deficiency” in the New York Times’ copyright infringement complaint in that it alleges “not a single real-world instance of someone using the GPT-based products” in a way that violates the Times’ rights or “harms its interests,” said Microsoft’s reply memorandum Monday (docket 1:23-cv-11195) in U.S. District Court for Southern New York in Manhattan in support of its motion to dismiss (see 2403050038).

Microsoft made that point “prominently and repeatedly” in its motion to dismiss, “with no meaningful response” from the Times, said the memorandum. That’s “dispositive,” because it confirms that the Times’ claims for contributory infringement, Digital Millennium Copyright Act violations and state misappropriation “are just hypothetical,” it said. Those claims are based only on what an AI product based on large language models (LLMs) “may be capable of doing, not on anything actual people have used these products to do,” it said.

Rather than address its complaint’s shortcomings, the Times “begins by erecting a straw man,” arguing that generative AI models are nothing like VCRs, and then “pre-litigating fair-use issues that are irrelevant here,” said the memorandum. Microsoft’s point wasn’t that VCRs and LLMs are the same, it said. It was that content creators “have tried before to smother the democratizing power of new technology based on little more than doom foretold,” it said.

Those challenges failed when Hollywood lost the 1984 Sony Betamax case in the U.S. Supreme Court, “yet the doom never came,” said the memorandum. That’s why the Times “must offer more than imagined fears before the law will block innovation,” it said. That the Times “can only think to dodge this point is telling indeed,” it said.

Having failed to plausibly plead its claims, the Times “mostly just pleads for discovery,” said the memorandum. But the defects in its complaint “are too fundamental to brush aside,” it said. The Times isn’t entitled to proceed on its contributory infringement claims “without alleging a single instance of end-user infringement of its works,” it said.

The plaintiff isn’t entitled to discovery on its DMCA Section 1202 claims “without even a theory” of how the absence of copyright management information “would somehow aid or conceal real-world piracy,” said the memorandum. It’s also not entitled “to smuggle copyright claims past a fair-use defense by disguising them as state-law misappropriation torts,” it said. The motion to dismiss should be granted, it said.