Firstly, a 2015 federal appeals court ruling deemed Google’s digital scanning of millions of books for its Google Books library as a legally acceptable “fair use” and not copyright infringement. This decision was based on the determination that Google’s digital library did not create a substantial market substitute for the original works.
However, proving that ChatGPT and similar AI models do not constitute a significant market substitute for The New York Times content is likely to be a formidable challenge for OpenAI.
The second relevant case is the Supreme Court’s May ruling in the Andy Warhol Foundation case. The court concluded that Andy Warhol’s alteration of a photograph of Prince was not protected by the fair use doctrine, particularly because both Warhol and the photographer were selling their images to magazines. This ruling underscores the importance of assessing whether the original and copied works serve similar purposes or risk being seen as substitutes.
The Times is arguing against “Fair Use: Legal representatives for The New York Times contend that OpenAI’s utilization of the newspaper’s articles to generate news event descriptions should not be protected by fair use. They argue that this usage could potentially serve as a substitute for The Times’ coverage.
