2024 will be an exciting year regarding the future legality of artificial intelligence.
Three separate lawsuits were started against OpenAI, which created and operated ChatGPT. The plaintiffs include The New York Times, a group of well-known novelists that include John Grisham, Jodi Picoult, and George R.R. Martin, and another group of bestselling nonfiction writers that include the author of the novel that the hit “Oppenheimer” film is based on. Although each lawsuit has its particularities, the core allegations are that OpenAI has built their “product on the back of other people’s intellectual property” (as per attorney Justin Nelson) (https://apnews.com/article/openai-new-york-times-chatgpt-lawsuit-grisham-nyt-69f78c404ace42c0070fdfb9dd4caeb7). This means that the information that ChatGPT sends out whenever prompted is derived from and based on copyrighted material from the people and entities that have sued OpenAI that is used to train the AI.
OpenAI, in turn, has finally presented its response in this case, defending its work with a “fair use” argument. “Fair use” in the context of copyright law refers to a defense where any person can use any work protected by copyright without needing permission from the current copyright owner. This can be in the form of commenting on, criticizing, researching, and teaching the protected work. The main factor, out of four that are usually reviewed in this kind of defense, is the purpose of the use – that is, is the party “fairly using” the copyrighted work using it for commercial or noncommercial uses, and is it “transforming” it to a new document. In this view, the U.S. Supreme Court in 2023, through the Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith case, found in favor of Lynn Goldsmith, an American photographer, who accused Andy Warhol of appropriating for his art a picture she took of recording artist, Prince. The Warhol Foundation, in turn, looked to “fair use” as its defense, and the Supreme Court did not find enough transformative use of the image.
This precedent is of much importance for OpenAI in their pursuit to exist. The argument held against them is that, if prompted, ChatGPT can recite word-for-word novels, newspaper articles and other works that have not entered the public domain in a process known as “regurgitation” (https://www.vox.com/technology/2024/1/18/24041598/openai-new-york-times-copyright-lawsuit-napster-google-sony). If the New York Times and the other complainants find success in their arguments, it could be the beginning of the end for ChatGPT and other AI models and training purposes as they exist nowadays. Only time will tell whether there will be a settlement offer that allows all parties to exist and be at peace or the suits will continue and a resolution will exist. It will undoubtedly be fascinating to see the developments that this will bring to the overall structure of these businesses and the products that we, as consumers, will be able to receive.
Other Sources
· https://nypost.com/2024/01/19/business/openai-ceo-sam-altman-shrugs-off-ny-times-copyright-lawsuit/
· https://www.jdsupra.com/legalnews/new-york-times-vs-openai-fair-use-fight-8404918/
· https://www.copyright.gov/fair-use/
· https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf
José Portabella, Abogado, BridgehouseLaw Charlotte