The Times v. Microsoft/OpenAI: Subject Matter Jurisdiction under 28 U.S.C. §§ 1331 and 1338a (2)

II. JURISDICTION AND VENUE

10. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a) because this action arises under the Copyright Act of 1976, 17 U.S.C. § 101, et seq.

11. Jurisdiction over Microsoft and OpenAI is proper because they have purposely availed themselves of the privilege of conducting business in New York. A substantial portion of Microsoft and OpenAI’s widespread infringement and other unlawful conduct alleged herein occurred in New York, including the distribution and sales of Microsoft and OpenAI’s Generative Pre-training Transformer (“GPT”)-based products like ChatGPT, ChatGPT Enterprise, Bing Chat, Azure OpenAI Service, Microsoft 365 Copilot, and related application programming interface (API) tools within New York to New York residents. Furthermore, both Microsoft and the OpenAI Defendants maintain offices and employ personnel in New York who, upon information and belief, were involved in the creation, maintenance, or monetization of Microsoft and OpenAI’s widespread infringement and other unlawful conduct alleged herein.

12. Because The Times’s principal place of business and headquarters is in this District, the injuries alleged herein from Microsoft and OpenAI’s widespread infringement and other unlawful conduct foreseeably occurred in this District.

13. Venue is proper under 28 U.S.C. § 1400(a) because Defendants or their agents reside or may be found in this District, through the infringing and unlawful activities—as well as Defendants’ sales and monetization of such activity—that occurred in this District. Venue is also proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to The Times’s claims occurred in this District, including the marketing, sales, and licensing of Defendants’ GenAI products built on the infringement of The Times’s intellectual property within this District. Upon information and belief, OpenAI has sold subscriptions for ChatGPT Plus to New York residents, and both Microsoft and OpenAI enjoy a substantial base of monthly active users of Bing Chat and ChatGPT in New York. OpenAI has licensed its GPT models to New York residents and companies headquartered in New York. For example, this year, OpenAI struck deals to license its GPT models to the Associated Press (AP) and Morgan Stanley, both companies headquartered in New York.