Microsoft filed a motion in federal court on Monday that seeks to dismiss parts of a lawsuit brought by The New York Times Company.
The Times sued Microsoft and its partner OpenAI on Dec. 27, accusing the two companies of infringing on its copyrights by using its articles to train A.I. technologies like the online chatbot ChatGPT. Chatbots compete with the news outlet as a source of reliable information, the lawsuit said.
In its motion, filed in U.S. District Court for the Southern District of New York, Microsoft argued that large language models, or L.L.M.s — the technologies that drive chatbots — did not supplant the market for news articles and other materials they were trained on.
The tech giant compared L.L.M.s to videocassette recorders, arguing that both are allowed under the law. “Despite The Times’s contentions, copyright law is no more an obstacle to the L.L.M. than it was to the VCR (or the player piano, copy machine, personal computer, internet or search engine),” the motion read.
In the late 1970s, movie studios sued Sony over its Betamax VCR, arguing that it would allow people to illegally copy movies and television shows. But the courts ultimately found that making these copies for personal viewing was fair use under the law.
Microsoft’s motion was similar to one made by OpenAI last week. Microsoft said three parts of the suit should be dismissed in part because The Times did not show actual harm.
The Times had argued, for example, that if readers use Microsoft’s chatbot to research recommendations from the review site Wirecutter, which The Times owns, it loses revenue from users who would have clicked on its referral links. Microsoft argued that the Times lawsuit offered “no real-world facts suggesting meaningful diversion of revenue from Wirecutter.”
Ian Crosby, a Susman Godfrey partner who is lead counsel for The Times in the case, said in a statement on Monday: “Microsoft doesn’t dispute that it worked with OpenAI to copy millions of The Times’s works without its permission to build its tools. Instead, it oddly compares L.L.M.s to the VCR even though VCR makers never argued that it was necessary to engage in massive copyright infringement to build their products.”
Microsoft did not have an immediate comment.
The Times was the first major American media company to sue Microsoft and OpenAI over copyright issues related to its written works. Writers, computer coders and other groups have also filed copyright suits against companies that build generative A.I., technologies that generate text, images and other media.
Like other A.I. companies, Microsoft and OpenAI built their technology by feeding it enormous amounts of digital data, some of which is likely copyrighted. A.I. companies have claimed that they can legally use such material to train their systems without paying for it because it is public and they are not reproducing the material in its entirety.
In its suit, The Times included examples of OpenAI technology’s reproducing excerpts from its articles almost word for word. Microsoft said training the technology on such articles was “fair use” under the law because chatbots were a “transformative” technology that created something new with copyrighted material. It did not, however, seek to dismiss arguments against “fair use,” saying it would address these issues at a later time.
