Microsoft, OpenAI Move to Partially Dismiss 8 Newspapers’ Copyright Claims

Microsoft and co-defendant OpenAI filed separate motions Tuesday to dismiss four of the eight counts in an April 30 complaint alleging that the two companies are “purloining” millions of copyrighted newspaper articles without permission and without payment to “fuel the commercialization” of their generative AI products (see 2404300034). Eight newspapers filed that suit.

As the newspaper plaintiffs acknowledge, their complaint “largely repeats the claims and allegations” from the Dec. 27 suit that The New York Times filed against Microsoft and OpenAI (see 2312270044), said Microsoft’s memorandum of law Tuesday (docket 1:24-cv-03285) in U.S. District Court for Southern New York in support of its motion to dismiss. OpenAI’s memorandum was slightly more blunt, calling the eight newspapers’ complaint a “copycat lawsuit.”

The eight newspapers’ complaint “unsurprisingly” contains the “same deficiencies” as that brought by the Times, said Microsoft’s memorandum. Both lawsuits suffer from the same “fatal defects” in their contributory copyright infringement, Digital Millennium Copyright Act, trademark and New York law misappropriation claims, it said.

Some aspects of the eight newspapers’ complaint, however, “are uniquely telling,” said Microsoft’s memorandum. The complaint omits the Times’ “unsubstantiated prediction” that Microsoft and OpenAI’s tools “will somehow destroy independent journalism,” it said. That’s evidently a talking point the plaintiffs don’t believe they can “substantiate,” it said.

Like the complaint brought against Microsoft and Open AI by the Times, “this one elides the key technical and legal fact that will ultimately decide this case,” said Microsoft’s memorandum. Microsoft and OpenAI’s tools “neither exploit the protected expression” in the plaintiffs’ digital content nor replace it, it said: “They extract and share elements of language, culture, ideas, and knowledge that belong to all of us.” That’s why the Times’ and plaintiffs’ claims “ultimately fail under the doctrine of fair use,” it said.

Much like the earlier complaint brought by the Times, the plaintiffs here assert that the defendants’ GPT-based products “are capable of being prompted to output snippets” of the plaintiffs’ protected works, “yet point to no example generated under real-world conditions,” said Microsoft’s memorandum. What’s “so telling this time” is that the plaintiffs filed their complaint four months after the Times did, and a month after the motions to dismiss in that case were fully briefed, it said. That's so despite “every incentive and months of opportunity to locate some real-world substantiation for their claims,” yet they came up with nothing, it said.

The eight newspapers contend that OpenAI violated their intellectual property rights by using publicly available, years-old newspaper articles as part of the process of developing a series of AI tools, said OpenAI’s memorandum. “The core claim is that this conduct amounts to direct copyright infringement,” it said.

But the complaint also includes “ancillary causes of action as well,” for contributory copyright infringement, trademark infringement, common law misappropriation, and a violation of a portion of the Copyright Act “that concerns misuse of information about copyrighted works, rather than the works themselves,” said OpenAI’s memorandum. OpenAI’s motion “principally seeks dismissal of the ancillary claims,” it said.