It seems RightsTech was not alone in having doubts about the good faith of the Department of Justice in its Statement of Interest in the New York Times’ lawsuit against OpenAI and Microsoft taking the side of the defendants. On Monday, the Times filed a response to the DOJ’s brief, accusing the department of ignoring the facts and evidence in the case, and suggesting it “may have been influenced by extraneous considerations—up to and including the Administration’s political and financial interests.”
Couldn’t have said it better myself. But the Times is not done:
AI companies and their executives (including executives of Defendants in this case) have been among this Administration’s largest donors. The Administration is reportedly considering OpenAI’s offer of a 5% stake in the company “to ease Washington pressure.” At the same time, the Administration has promised to remove any barrier to the unfettered and rapid development of AI technology, as reflected in the DOJ’s Statement. Although one could argue that political factors will always influence Government litigation positions to some extent, the nature, extent, and transparency of the AI industry’s efforts to influence this Administration should not be lightly dismissed.
Yowza.
As I did in my previous post, the Times’ response calls out DOJ’s shabby treatment of the U.S. Copyright Office and its head, Register of Copyrights Shira Perlmutter.
The DOJ’s legal analysis is also ill-informed. To start, it does not grapple with the dramatically opposed views of the U.S. Copyright Office, the agency tasked by statute with interpreting the Copyright Act…
Typically, a Statement of Interest filed by the United States results from a process of consultation with the government agency or agencies with expertise in the matter, and takes into account the views of those agencies. Here, the DOJ reportedly did not contact any [sic] relevant agency. And the DOJ not only failed to consider the Copyright Office’s position—it attempts to undermine the Office’s position by accusing the Office of “threadbare reasoning” and noting the Administration’s efforts to remove the Register of Copyrights.
The Times also challenges DOJ’s invocation of national security to support OpenAI and Microsoft’s fair use claim.
The DOJ’s policy pronouncements cannot override the court’s duty to apply statutory fair use factors as Congress enacted them. The Supreme Court has long recognized that courts do not abdicate their judicial function merely because the Executive invokes national security…
Moreover, even if national security arguments were relevant to the copyright issues in this case, the only link that the DOJ attempts to make between the threat to national security and the need to pay for copyrighted content is to suggest that content costs might impose a hypothetical burden on hypothetical entrants into the AI industry.
In short, the Times rightly sees the DOJ filing for what it is: a thoroughly political document rather than a good faith legal argument, and calls that out to the court.
That doesn’t mean it should be ignored, however. What the DOJ’s attempted intercession in the case reveals, however unintentionally, is that unlike previous collisions between copyright and technology—Napster, the VCR, the photocopier—the AI v. copyright dispute is not simply a clash of discrete economic interests. The rush to develop AI is transforming the entire economy, from investment flows to employment trends to the cost of living, to say nothing of its nexus to politics and geopolitics.
While courts are bound to limit their deliberations to the particular law and cases before them, however they ultimately come down in the AI copyright cases will have ramifications far beyond the realm of copyright. And many of those ramifications will be felt in realms where courts cannot adjudicate the issues raised, either legally or practically. Notwithstanding the DOJ’s bad faith in Times v. OpenAI it’s not wrong to recognize that the debate over AI and copyright inevitably is a policy question as much as a legal one. Courts won’t have the final say.
This Just In…
The Third Circuit Court of Appeals on Wednesday handed down its opinion upholding a lower court ruling in favor of Westlaw-owner Thomas Reuters and rejecting ROSS Intelligence’s fair use claim in a case involving ROSS’ use of Westlaw headnotes in memos to train its AI model.
I haven’t had a chance to read the full opinion yet, but it’s notable that Third Circuit distinguishes Thomas Reuters from both Kadrey v. Meta and DOJ’s brief in the Times case in finding ROSS’s use of Westlaw’s copyrighted head notes insufficiently transformative to support a claim of fair use.
It also found ROSS’s copying harmed Thomas Reuters in the “rapidly developing” market for headnote licensing as text for training AI models. “By copying the headnotes for use as training data without Thomson Reuters’s authorization, ROSS usurped Thomson Reuters’s opportunity to enter that derivative market and license its headnotes for that purpose,” the court said. “The market harm caused by ROSS’s use weighs against fair use.”
Also notable: The Third Circuit opion marks the first time a federal appeals court has reached a ruling in an AI v. copyright case, making it likely to be cited in future appeals. It’s not good news for Team Fair Use.