Like OpenAI before it, Microsoft has sought to dismiss portions of the lawsuit the New York Times has brought against it over ChatGPT. While raising some of the same arguments, Microsoft takes a more traditional path with its motion relying on the facts pled in the Times's complaint. However, it also relies on an extended analogy to the VCR (and the Supreme Court's "Betamax" decision) to suggest a framework for the court's analysis.
Microsoft's brief opens with a "Preliminary Statement" about the Motion Picture Association of America's resistance to the VCR in the 1980s and the "all-out effort by television and movie producers to stop a groundbreaking new technology." Those efforts ultimately gave rise to the Supreme Court's "Betamax" decision,[1] in which the closely-divided Court decided that Sony did not contributorily infringe copyright because the ability to "time shift" when a television program was watched constituted a non-infringing fair use of a VCR.
But Microsoft characterizes it as an attempt by existing media to throttle a disruptive technological advance in the crib, just as it accuses the Times of doing for large language models (LLMs) here. It boldly asserts "copyright law is no more an obstacle to the LLM than it was to the VCR (or the player piano, copy machine, personal computer, internet, or search engine)," despite the key issue -- whether the use of the Times's copyrighted works to train the ChatGPT LLM is a transformative or fair use -- not being raised or argued in the motion.
Instead of the central issue of transformative use, which Microsoft says it will "show on summary judgment," citing the Authors Guild v. Google case[2] relating to digitization of printed books and Google v. Oracle case[3] regarding use of Java APIs, Microsoft's motion to dismiss raises three of the four issues raised in OpenAI's motion to dismiss. In doing so, however, Microsoft sticks closely to the facts alleged in the Times's complaint. That is, after the extensive Preliminary Statement related to issues that will be raised later in the case, Microsoft presents a very typical factual background and argument.
First, Microsoft argues that the Times's contributory infringement claim fails as a matter of law because the Times was not able to identify an end user that was directly infringing its copyrights. Microsoft argues that the contributory infringement "claim is therefore the exact one the Supreme Court rejected when it blessed the VCR." That, of course, is not true. ChatGPT provides the end user with the data that includes copyrighted works in the LLP; in contrast, a VCR is content-agnostic. That is, OpenAI chose the works that it used to train the LLM and provide response to end user prompts on ChatGPT, whereas Sony did not dictate what end users were taping on VCRs. Furthermore, the VCR did not require training on a massive corpus of copyrighted works in order to even exist.
Nonetheless, Microsoft's argument may succeed because of how the Times has pled its contributory infringement claim. Rather than arguing that Microsoft encouraged end users to obtain copyrighted works, the Times argued that Microsoft materially contributes to end user infringement by offering products that it knows are capable of distributing infringing works. The argument is a bit tenuous because the Times did not identify an infringing end user or that Microsoft knew the end user was infringing. The Times may argue that it could not have provided that information because the information passes only between ChatGPT and the end user. We will have to see how the Times responds to the motion.
Second, Microsoft argues that the Times failed to state a claim under the Digital Millennium Copyright Act (DMCA) because it failed to identify that Microsoft had removed any specific copyright management information (CMI) from a Times work before distributing that work. Just as with the contributory infringement count, Microsoft argues that the Times did not identify any specific article reproduced or CMI removed. That appears to be true at this juncture. Again, however, this information is not easily available (if at all) to the Times. Further, Microsoft argues that it had an honest belief that training the LLM was a non-infringing fair use. The court may choose to allow the Times to take discovery to determine if it can find instances of Microsoft removing the CMI from works reproduced by ChatGPT, whether in training or final output.
Finally, Microsoft argues that the state law misappropriation claim is preempted by the Copyright Act. Traditionally, courts have accorded the Copyright Act broad preemptive effect. Unless the information is highly time-sensitive "hot news," courts have been loath to find that copyright infringement is not a sufficient (and sole) remedy. That does not seem to be the case with ChatGPT -- it does not provide information based on Times articles immediately, only after the LLM has been taught on articles. Thus, the Times's misappropriation count seems the most likely one to be dismissed.
Like OpenAI, Microsoft is using its motion to dismiss as more than just a vehicle to get rid of certain counts. Instead, it is seeking to create a framework for the case analogous to the Betamax case in addition to arguing for the dismissal of three counts of the complaint. By doing so in a traditional brief format, it may obtain better results than OpenAI. Nonetheless, Microsoft's VCR analogy to LLMs is shaky when placed under scrutiny and seems to be a ploy to leverage Hollywood's overblown and ultimately misplaced reaction to early home recording.
[1] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
[2] Authors Guild v. Google Inc., 804 F.3d 202 (2d Cir. 2015).
[3] Google LLC v. Oracle Am., Inc., 141 S.Ct. 1183 (2021).
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