News/Media Alliance files amicus brief in news publisher suits against OpenAI and Microsoft

This case is existential for the news media industry. If OpenAI and Microsoft get their way, their desired weakening of copyright law would ultimately deprive millions of Americans of critical news about their country and their communities.”

News/Media Alliance President and CEO Danielle Coffey

NEW YORK — This morning, the News/Media Alliance filed its amicus brief in the multi-district litigation (MDL) in which over a dozen news publishers have sued OpenAI and Microsoft for using their content without permission to train AI systems and power real-time AI answers (RAG). The News/Media Alliance is joined in this brief by cosigners National Newspaper Association, the National Press Photographers Association, and ProPublica — representing critical elements of the news ecosystem, from newsgathering to publication, and publishers across the full breadth of the industry.

These suits are now in the summary judgment phase, where SDNY J. Stein can resolve key questions of infringement and fair use. This is the first time a US court will decide summary judgment on OpenAI’s actions or questions around real-time use of news content. 

“This case is existential for the news media industry,” News/Media Alliance President and CEO Danielle Coffey said, “If OpenAI and Microsoft get their way, their desired weakening of copyright law would ultimately deprive millions of Americans of critical news about their country and their communities. Since the country’s beginning, the United States has recognized the ability to protect one’s work through copyright. We hope the court will see OpenAI and Microsoft’s fair use claims — for clearly substitutional and competitive products — as the sham they are, and will rule in accordance with our country’s long and distinguished history of protecting intellectual property.”

The News/Media Alliance’s amicus brief urges the court to side on behalf of the publishers. It makes the case that news publishers depend on copyright law to protect original news content and support journalists, and that eroding copyright protections would harm the public interest by driving publishers out of business and weakening the free press.

The only way publishers can afford to continue creating news content is by leveraging control over their content to earn revenue, whether with ads, subscriptions, or licensing. But OpenAI and Microsoft’s unauthorized use of news content directly undermines publishers’ ability to fund their work. ChatGPT has substantially decreased the number of visitors to news sites, with research showing that ChatGPT sends 96% less referral traffic to publishers than traditional Google search. This lowers both ad and subscription revenue for news publishers, and OpenAI’s constant theft of publisher content undermines the health of the rapidly-growing market for AI content licensing. 

The brief also argues that OpenAI and Microsoft’s uses of news content is highly substitutive for news publishing, and insufficiently transformative to support fair use claims. ChatGPT provides clearly substitutional answers - either summaries or verbatim copies - that remove the need to visit original publisher sites. Studies show that when individuals start using AI chatbots, their use of traditional search engines and their exposure to online ads drops significantly, a clear sign that AI chatbots directly compete with news sites for readers.

The full amicus brief is available here.


Key Quotes from the NMA Brief

• “Contrary to Defendants’ claims, there is no fair use precedent that supports appropriating copyrighted works to offer a product that competes with the copied works.”
• “Journalism is an expensive undertaking.  Copyright protection is essential to enabling news organizations to recover the significant investments required to carry out the work of covering breaking news, worldwide developments and local events.”
• “Defendants’ copying of news content to train and then operate their AI systems using RAG is not transformative under the first fair use factor because the use has the same purpose as, and serves as a substitute for, original journalistic works.  … Even if one could discern some degree of transformativeness in AI uses of publishers’ journalistic works, it is unquestionably negated by Defendants’ purpose of offering products that compete with original news sources.”
• “A determination that news content can be taken with impunity would threaten news publishers’ economic viability by eviscerating a well-established licensing market for news content, ultimately diminishing the availability of high-quality journalism to the public. This outcome would be manifestly contrary to the public interest.”
• “It is well recognized that one can infringe through non-literal copying of the plaintiff’s work, such as by abridging or summarizing a work.  Courts have consistently found market harm under the fourth fair use factor based on summaries, paraphrases, and excerpts of news articles and other works.”
• “There is a well-established and rapidly growing derivative market for the licensing of news content to AI companies in need of reliable input to train and operate their systems.  A finding of fair use in these cases would eviscerate this critical market, which serves AI developers as well as publishers.”