DOJ Sides With OpenAI Against the NY Times in High-Stakes Copyright Case

On the eve of Chinese President Xi Jinping’s visit to Washington, where artificial intelligence governance and competition will be on the agenda, the Trump administration on Tuesday (Sept. 1) jumped into one of the highest profile lawsuits over the use of copyrighted material to train AI models.

In a 20-page brief filed late Tuesday in federal district court in Manhattan, the U.S. Department of Justice sided with OpenAI in a copyright infringement lawsuit brought against it by The New York Times. “The United States has a strong interest in continuing to develop a robust and competitive artificial intelligence industry that sets the standard for the practice and procedure of AI use globally,” the brief said. “As such, it is critical for the United States to ‘retain global leadership in artificial intelligence,’” a reference to Trump’s executive order signed last year.

Separately, in comments in the Oval Office in which he referenced Xi visit, Trump claimed the U.S. has significant lead over China in AI, pointing to “unprecedented” levels of AI investment, according to the South China Morning Post.

“AI is going up, and we’re leading China in AI very substantially,” he said, according to the news outlet. “By the way, we have the president of China coming on the 24th. That’ll be very exciting.”

The two developments are likely related.

“To start, effective integration of AI will be critical for U.S. national security capabilities,” the DOJ said in its brief. “Several years ago, the Government Accountability Office (GAO) warned that ‘[f]ailure to adopt and effectively integrate AI technology could hinder national security’ because AI can be used for tasks such as ‘analyzing intelligence information,’ ‘enhancing weapon systems (such as drones and robotic ships),’ and ‘providing recommendations on the battlefield (such as where to target missile strikes).’”

“Over time, it has become even more apparent that ‘[a]dvanced AI capabilities make our Nation stronger, but also introduce new national security considerations’ requiring that “the best and most secure technology is deployed to rapidly confront any and all threats to our country.’  Of course, foreign adversaries have similar goals.”

The New York Times sued OpenAI and Microsoft in December 2023, alleging they scraped the paper’s archives without permission and used its copyrighted articles to train ChatGPT and other large language models (LLMs). Since then, at least 140 similar cases have been filed by copyright owners against AI companies in the U.S., according to a running tally kept by ChatGPT Is Eating the World.

In one of the few cases to reach a verdict, Bartz v. Anthropic, brought by a group of authors against OpenAI’s main competitor, the court found the use of texts to train AI models, “transformative—spectacularly so,” and therefor qualifies as fair use under copyright law.

“An erroneous fair use ruling would hamper competition in the market for LLMs, because only the largest technology companies might have the capital necessary to pay licensing fees. And such licensing fees would disproportionately benefit legacy media outlets due to the sheer volume of their written publications.” DOJ said in its brief. “It is not in the public’s interest for the largest technology companies to have an oligopoly on LLM training due to licensing entry barriers that function primarily as large subsidies for old mainstream media companies.”

In a statement blasting the department’s intervention, the Times accused the administration of promoting precisely that outcome.

The Justice Department was siding with a handful of “trillion-dollar A.I. companies” at the expense of American creators, New York Times spokesman Graham James said. “The administration’s proposal to let companies take that content without permission or compensation would undermine the sustainability of the human-created content that a healthy society depends on, and which A.I. needs to function.”