News groups are also upset that instead of listening to insiders warning that scraping news was theft, Microsoft and OpenAI never chose to license content, allegedly usurping them in another market in ways they couldn’t anticipate.
Specifically, their motion accused Microsoft of violating “industry norms” by selling a dataset purchased for Bing as training data for OpenAI, allegedly doing so without consulting news groups that would not have approved of that repurposing of their consent to basic search engine crawling. Further, OpenAI allegedly “acted improperly” by obtaining a NYT dataset with 1.8 million articles from a third party that was bound to an agreement that the data wouldn’t be used for commercial purposes. OpenAI’s employees knew it “would not be appropriate” to use that data “to train a model,” but they did it anyway, news groups alleged.
For news groups, the problem isn’t just Microsoft and OpenAI, but all the AI firms that are following their lead in “free-riding” on their content, the motion said. Most notably, after ChatGPT’s launch, Google’s AI Overviews was quickly introduced and started absorbing even more traffic that previously went to news sites.
If courts don’t clarify that AI firms must license news content, both news publishers and AI firms could be doomed, news plaintiffs argued. One Microsoft internal document agreed that “there is a ‘real risk’ that GenAI could ‘significantly disrupt’” the “employment of the very people who generated the data on which the foundation model was trained,” they noted. Microsoft even included a cartoon illustrating the problem of LLMs destroying their own supply chains, they said:
“AI companies remain powerless to break out of this ‘doom loop,’ because, while the industry as a whole would benefit if every company paid to sustain the continued production of the creative works their technology depends on, each individual company is better off taking content for free while others pay,” news groups argued.
As evidence of this blind greed, their motion emphasized that Brockman wrote that he was “deeply motivated by the gazillions” that could be gained by commercializing OpenAI’s technology.
“Finding that copying news for AI is not fair use would solve this prisoners’ dilemma by putting all AI companies, OpenAI and Microsoft included, on an even footing,” news organizations said.
This story was updated with a quote from New York Daily News counsel Steven Lieberman.