OpenAI must face part of Intercept lawsuit over AI training

By Blake Brittain

Feb 20 - Artificial intelligence giant OpenAI lost a bid on Thursday to dismiss a lawsuit in New York federal court alleging it misused news articles published by The Intercept to train its popular chatbot ChatGPT.

U.S. District Judge Jed Rakoff said that The Intercept plausibly argued it was harmed by OpenAI's alleged removal of copyright management information from its articles, diverging from another Manhattan judge who dismissed a related lawsuit from other news organizations against the tech company last year.

The judge narrowed the case, however, dismissing The Intercept's claim that OpenAI unlawfully distributed its articles after removing their copyright information.

Rakoff also explained his reasoning for dismissing The Intercept's claims against Microsoft MSFT.O, OpenAI's largest financial backer. The opinion published Thursday expands on an order issued by Rakoff in November.

An OpenAI spokesperson said the company's AI models are "trained on publicly available data, grounded in fair use and related principles that we view as fair for creators, and support innovation."

Attorneys and spokespeople for Microsoft and The Intercept did not immediately respond to requests for comment on the decision.

The case is part of a wave of lawsuits against OpenAI and other tech companies by authors, visual artists, music publishers and other copyright owners over the data used to train their generative AI systems. A lawsuit filed by The New York Times against OpenAI in 2023 was the first from a news company.

The Intercept and fellow media outlets Raw Story and AlterNet sued OpenAI last year, alleging that OpenAI used thousands of their articles without permission to train ChatGPT. Unlike similar lawsuits, the outlets accused OpenAI of unlawfully removing their articles' copyright management information under the Digital Millennium Copyright Act without arguing that it infringed their copyrights.

U.S. District Judge Colleen McMahon dismissed Raw Story and AlterNet's case in November, finding their alleged injury was "not the type of harm that has been elevated" to a level that would justify the lawsuit. Rakoff said Thursday, however, that The Intercept's claims "implicate the same kind of property-based harms traditionally actionable in copyright."

"Even though the specific right created by the DMCA may be comparatively new, the injury experienced by The Intercept because of the violation of that right sounds in the same kind of harm long recognized in copyright suits," Rakoff said.

Rakoff said The Intercept's case against Microsoft should be dismissed because its claims only concerned OpenAI's AI training.

The case is The Intercept Media Inc v. OpenAI Inc, U.S. District Court for the Southern District of New York, No. 1:24-cv-01515.

For The Intercept: Matt Topic, Jonathan Loevy and Michael Kanovitz of Loevy + Loevy

For OpenAI: Joseph Gratz, Allyson Bennett and Rose Lee of Morrison & Foerster; Andrew Gass, Joseph Wetzel, Sy Damle and Alli Stillman of Latham & Watkins

For Microsoft: Annette Hurst, Lisa Simpson and Christopher Cariello of Orrick Herrington & Sutcliffe

Read more:

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