The Times sued Microsoft for allegedly copying its stories and using that data to mimic its style, but Microsoft’s lawyers are now arguing that OpenAI’s large language models are just the latest in a long line of technologies that are considered legal despite their potential for copyright abuse. “Despite The Times’s contentions, copyright law is no more an obstacle to large language model than it was to the VCR (or the player piano, copy machine, personal computer, internet or search engine),” reads one passage.

Ian Crosby, partner at Susman Godfrey and lead counsel for the Times, tells The Verge that Microsoft did not dispute that it worked with OpenAI to copy the publication’s stories. “Instead, it oddly compares LLMs to the VCR even though VCR makers never argued that it was necessary to engage in massive copyright infringement to build their products,” Crosby said. 

Microsoft also challenged the Times’ allegation that Microsoft knew about and induced users’ copyright infringement by offering products using OpenAI’s GPT model, arguing that the Times never gave an example of direct infringement by a Copilot user. “The Times’s contributory infringement theory thus fails on the very same basis the challenge to the VCR failed four decades ago: It improperly seeks to impose liability based ‘solely [on] the design or distribution of a product capable of substantial lawful use,’” Microsoft’s motion states. 

Microsoft also claims the Times didn’t prove Microsoft violated the Digital Millennium Copyright Act (DMCA) by deliberately removing copyright management information, like the copyright owner’s name, from its training data. Microsoft noted other generative AI lawsuits that used the same argument as the Times had those claims dismissed, like one brought by authors including Sarah Silverman, 

Lawsuits like the one from the Times against OpenAI and Microsoft have the potential to rewrite how generative AI continues to grow as an industry. OpenAI has filed its own motion to dismiss, too; it claims that the Times “tricked” ChatGPT into directly reproducing copyrighted material from the publication.