The Politics of AI
In the nearly three years since the New York Times filed its copyright infringement lawsuit against OpenAI and Microsoft, AI models’ use of journalistic content has evolved significantly, raising the stakes considerably for both parties and their respective industries in the outcome of the case. A victory by either side would be a devastating blow to the other.
At the time it was filed, the Times’ lawsuit was aimed primarily at OpenAI’s unsanctioned use of Times content to train GPT, and on ChatGPT’s ability to regurgitate verbatim or near-verbatim copies of Times articles. Since then, however, AI increasingly has come to supplant traditional search as the means by which consumers discover and retrieve information from the internet, thanks to the advent of retrieval augmented generation, or “grounded” responses to prompts.
That evolution has fundamentally changed how AI models make use of journalistic content. Rather than the undifferentiated bulk use of news organizations’ archives in training or pre-training, grounding makes use of specific articles to generate summaries of their content, often in sufficient detail to make clicking through to the original sources seem superfluous. That has led to a catastrophic decline in search referrals to news outlets, and to a shift in the focus of the Times’ lawsuit against OpenAI as reflected in the news outlet’s most recent filing.
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Another shift is that the case has lately grown politicized. As discussed in a previous post, the Department of Justice recently filed a rather nakedly political “statement of interest” in the case in which it invoked national security in support of OpenAI and, not incidentally, supporting the Trump administration’s preferred anti-regulatory policy around AI. It also dismissed complaints that AI summaries serve to dilute or depress the market for human-produced journalism, reportedly without bothering to run it by the Copyright Office, as “overlook[ing] arguably the most basic element of copyright infringement— whether the ‘works are substantially similar.’”
Now, three Democratic members of the House of Representatives have filed an amicus brief in the case taking issue with the DOJ’s invoking of national security in its statement of interest and accusing it of overstepping its constitutional and statutory authority.
The Statement is breathtaking in its scope. Rather than specifying any particular copyright claim or even type of claim that might be a national security concern, or for that matter any particular type of security threat, the Statement proposes what is in effect a blanket exemption that would, if adopted, preclude every copyright claim that might fall within the nearly unbounded ambit of “training LLMs.” That is not a specific, tailored exception to copyright law. It’s a bulldozer that would eliminate copyright protection with respect to AI training for all works in all circumstances.
Congress has not delegated to the DOJ, or to any other agency, the authority to assert even specific national security exceptions to the Copyright Act, much less wide-ranging exemptions. The DOJ has not engaged in formal (or even informal) rulemaking before arriving at its landscape-changing construction of copyright law. The agency’s Statement of Interest is due no deference at all.
The brief also criticizes DOJ for failing to consult with the Copyright Office and substituting its own views for those of the government’s own expert agency.
The Statement reflects the views of the DOJ leadership, not those of the U.S. government as a whole. There is no indication that it was informed by the entity with copyright expertise, and in that respect it departs from the practice that the DOJ has followed under both the current and prior Administrations.
The Copyright Office is the federal body with primary expertise in copyright. The Statement appears to have been filed without consulting with that office, which was reportedly surprised by the filing, or even giving it any advance notice.
While the brief is expressly aimed at the DOJ’s intercession in the case, it also is no doubt meant to serve notice to the AI industry that it soon could face far more and more skeptical scrutiny from Congress that it has faced up to now.
The three members who filed the brief, Reps. Jamie Raskin (Maryland), Henry C. “Hank” Johnson, Jr. (Georgia) and Jerrold Nadler (NY), respectively the ranking member of the House Judiciary Committee, ranking member of the IP Subcommittee, and former chairman and ranking member of the full committee. By the time you read this, Raskin and Johnson could be poised to assume the chairs of their respective committees should Democrats regain a majority in the House on Tuesday (Nadler is retiring).
From those posts, they will have investigatory and subpoena power with which to compel the AI companies to testify in hearings that could well be more hostile than Sam and Dario’s recent visits to Capitol Hill. The amicus brief makes a point of placing copyright and the interests of creators on the same plane of national interest as AI.
Adopting the [DOJ]’s position would be financially devastating to the copyright community and the Nation. Copyright and creators are central to the American economy. In 2023, the core copyright industries contributed more than $2 trillion to the U.S. economy, nearly 8% of GDP, and sales of select U.S. copyright products in overseas markets reached nearly $273 billion. When interdependent and supporting industries are included, the contribution rises to $3.3 trillion, or more than 12% of GDP…
The value of creative industries extends beyond their economic impact. American creative works are among the most powerful sources of the Nation’s influence internationally, and both Congress and the Executive have treated securing protection for copyrighted works abroad as a matter of national trade and foreign policy.
NY Times v. OpenAI was always bound to be closely watched and consequential to the debate over AI and copyright, if only because of the high-profile and cultural valency of the combatants. But the evolution of AI technology since its filing, along with the political partisanship now surrounding it have raised significance well beyond the original dispute.
Whichever way the court ultimately rules, the result is likely to be the spark that ignites the political and policy fight over the terms of engagement between AI and copyright that has thus far been deferred while the legal disputes play out in the courts. The Times case could be the last deferral.
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