OpenAI’s request for access to The New York Times reporters’ notes, memos and other documents raises complex discovery issues.

TAKEAWAYS

• OpenAI’s defense is requesting access to reporters’ notes and other materials in discovery, claiming these materials are relevant to arguments over the propriety of copyrightability of the content at issue.
• The New York Times opposes the requests, arguing that they are an attempt to undermine established intellectual property rights and to intimidate a news organization defending its copyrighted works.
• Legal challenges like those faced by OpenAI could highlight potential liabilities associated with using AI models that implicate copyrighted material.

OpenAI’s defense of the lawsuit brought by The New York Times (“The Times”) has sparked controversy relating to OpenAI’s discovery demand for access to reporter notes and other behind-the-scenes materials associated with millions of articles that appeared in The Times. These materials, the AI company argues, are crucial for assessing the copyrightability of The New York Times’ content, which content is being incorporated into OpenAI’s AI models.

The Times filed suit, in late 2023, accusing OpenAI and Microsoft of copyright infringement. OpenAI responded by moving to dismiss large parts of the suit, claiming The Times itself used “prompt hacking” to generate outputs that would bolster The Times’ copyright claims. Open AI also questions the propriety of copyrightability of the underlying works at issue in the case. As discovery has progressed, OpenAI initiated discovery requesting access to reporters’ notes, interview memos, and other documents integral to the creation of the articles in question.

In response, The Times has vehemently opposed these demands—describing them as “unprecedented” and “harassing”— arguing that the requests are an attempt to undermine established intellectual property rights and to intimidate a news organization defending its copyrighted works. The Times contends that the expressive nature and copyrightability of its articles should be evaluated based on the works themselves, not by delving into reporters’ private notes or interview materials. The Times highlights the chilling effect that such comprehensive discovery requests would have on journalists, news organizations, and the like, and argues that “a chilling effect is exactly what OpenAI, who appears to have stolen from millions of content creators, is hoping for.” This dispute over these materials highlights one of the contentious issues that underlies this lawsuit and many of the class action lawsuits—to what extent will courts require a plaintiff to demonstrate the copyrightability of each work at issue and what evidence will the Court allow to prove said issues? The Times states that its news gathering process is not on trial, but rather at issue is OpenAI’s infringement of millions of The Times’ registered copyright works.

Open AI (joined by Microsoft) contends that the sought after materials are relevant to, among other things, the question of whether the works at issue are authored by humans (not AI) and whether the information is otherwise in the public domain. Open AI further argues that the complaint itself put the relevance of these documents at issue, particularly by alleging that the works at issue required an investment of “enormous amount of time … expertise, and talent,” including through “deep investigations—which usually take months and sometimes years to report and produce—into complex and important areas of public interest.” Compl. ¶¶ 32–33; see also id. ¶¶ 34–37. According to Open AI, the requests are intended to probe the veracity of the claims put forth by plaintiff.

The outcome of this legal battle could have far-reaching consequences beyond the immediate parties involved. It may influence future discovery disputes involving AI technologies and copyright law, setting precedents for how news organizations should protect their intellectual property in the face of technological advancements. It also raises complex discovery issues that providers of AI intend to use when forced to defend its platform, presumably believing that it may cause potential plaintiffs to think twice before filing suit. Moreover, the case highlights the tension between technological innovation and established legal frameworks. As AI technologies advance and become more pervasive in creative industries, courts may face increasing challenges in balancing somewhat competing interests—the interests of copyright holders, the public interest in access to information, and the rights of technology developers to innovate freely.

Importantly, organizations investing in AI technologies may need to adjust their risk management strategies. Legal challenges like those faced by OpenAI could highlight potential liabilities associated with using AI models that implicate copyrighted material. To stay ahead, it would behoove businesses to enhance due diligence processes and legal assessments to mitigate the possible risks of copyright infringement claims.

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