Responding to the OpenAI brief that read more like a press release than a traditional motion to dismiss, the New York Times attacked OpenAI's approach from the very first sentence, calling the factual background of OpenAI's brief "grandstanding about issues on which it hasn't moved." The Times echoed the concern we raised in our post on OpenAI's motion to dismiss, that the motion "introduces no fewer than 19 extrinsic documents, none of which can be properly considered on a motion to dismiss, in a submission that for nearly 10 pages reads more like spin than a legal brief."

But none of that stopped the Times from responding to some of the factual arguments or introducing new documents. Clearly, the Times was most concerned by the public relations value of the accusation that it "hacked" OpenAI to fabricate a copyright lawsuit. Without citation to the factual record, the Times spends much of its introduction on refuting that claim, which wasn't a basis for the legal arguments in OpenAI's motion. Then, when it actually gets down to addressing OpenAI's arguments, it props up the contributory copyright infringement claim with a citation to a Gizmodo post and a Wired article rather than relying on the allegations of its complaint. So while OpenAI is a far worse offender in refusing to focus on the legal issues and the facts of the complaint, the Times was not above employing a similar strategy.

When it got around to addressing the merits of the arguments in OpenAI's motion, the Times argued clearly and forcefully. Those arguments suggest that the challenged counts of the complaint are likely to survive dismissal, even if they are vulnerable on the ultimate merits.

First, OpenAI had argued that a copyright infringement claim against the teaching of its large language model (LLM) was time-barred by the statute of limitations. The Times raised two counters. First, even if the statute of limitations might otherwise bar such claims for the initial training of the OpenAI model, it would not apply to the dataset used for development of more recent models of GPT 3.5 and GPT4, the LLM that underlies ChatGPT. That is, the Times views the LLMs as different versions that each constitute a copying of the Times's articles rather than consecutive iterations of the same work.

That distinction plays into the Times's second argument -- that it cannot be charged with constructive knowledge of OpenAI's alleged infringement, especially because it would have been quite difficult to investigate prior to the launch of ChatGPT. A copyright owner is not barred from asserting claims that arise before the statute of limitations if (1) it had not discovered the infringement, and (2) it could not have, with due diligence, discovered the infringement. Only with the launch -- and prompting -- of ChatGPT was the Times able to definitively determine that the OpenAI LLM had been trained with Times articles. At least, that is a strong argument for avoiding dismissal at this phase of the dispute. We will see what discovery reveals about the Times's actual or constructive knowledge down the road.

Second, OpenAI had argued that the Times's contributory copyright infringement count should be dismissed because the Times had not identified a specific direct act of infringement. The Times started by attacking OpenAI's argument head-on, asserting that case law suggests that a plaintiff is not required to identify specific infringements to state a claim for contributory copyright infringement. The Times next argued that public reports show that members of the public have used ChatGPT to circumvent paywalls and obtain copyrighted Times articles, hinting that discovery would show that there is a factual basis for contributory infringement. Even more fundamentally, the Times had alerted OpenAI to the threat of contributory infringement and, according to the complaint, OpenAI chose to do nothing to stop that infringement. Each of those bases should preserve the contributory infringement claim.

Third, OpenAI had challenged the Times's Digital Millennium Copyright Act over the lack of evidence of removing copyright management information. Among other things, the Times accuses OpenAI of removing copyright notices and links to terms of service from articles when teaching its LLM and not including them in output provided in response to user prompts. The Times disputed the legal arguments that OpenAI made and also the factual claims about what had been removed from the Times's articles. Again, it is likely that the Times's arguments will be persuasive and discovery will proceed.

Finally, and perhaps most tenuously, the Times argues against OpenAI's motion to dismiss its state court misappropriation claim. The Times's arguments are likely strong enough to preserve its claim for now, but its arguments highlight just how far this situation is from the past cases in which a misappropriation claim has not been preempted by copyright law. In those cases, a party reported "hot news" that would diminish in value if the reporting were delayed by minutes or hours. Here, the Times is attempting to apply the same doctrinal framework to Wirecutter reviews and reports that may be delayed weeks or months from the time they appear in the newspaper or on the Times website (and, for that matter, weeks or months after the products are received for review. Again, the Times appears to be on the better side of the law on dismissal, but likely will have a far greater challenge on summary judgment. That is, unless it can show that expeditious reporting of such reviews is necessary for their value, the Times is likely to lose on this count.

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