The Times v. Microsoft/OpenAI: GenAI Products Threaten High-Quality Journalism (7)

IV. FACTUAL ALLEGATIONS

A. The New York Times and its Mission

4. GenAI Products Threaten High-Quality Journalism

47. Making great journalism is harder than ever. Over the past two decades, the traditional business models that supported quality journalism have collapsed, forcing the shuttering of newspapers all over the country. It has become more difficult for the public to sort fact from fiction in today’s information ecosystem, as misinformation floods the internet, television, and other media. If The Times and other news organizations cannot produce and protect their independent journalism, there will be a vacuum that no computer or artificial intelligence can fill.

48. The protection of The Times’s intellectual property is critical to its continued ability to fund world-class journalism in the public interest. If The Times and its peers cannot control the use of their content, their ability to monetize that content will be harmed. With less revenue, news organizations will have fewer journalists able to dedicate time and resources to important, in-depth stories, which creates a risk that those stories will go untold. Less journalism will be produced, and the cost to society will be enormous.

49. The Times depends on its exclusive rights of reproduction, adaptation, publication, performance, and display under copyright law to resist these forces. The Times has registered the copyright in its print edition every day for over 100 years, maintains a paywall, and has implemented terms of service that set limits on the copying and use of its content. To use Times content for commercial purposes, a party should first approach The Times about a licensing agreement.

50. The Times requires third parties to obtain permission before using Times content and trademarks for commercial purposes, and for decades The Times has licensed its content under negotiated licensing agreements. These agreements help ensure that The Times controls how, where, and for how long its content and brand appears and that it receives fair compensation for third-party use. Third parties, including large tech platforms, pay The Times significant royalties under these agreements in exchange for the right to use Times content for narrowly defined purposes. The agreements prohibit uses beyond those authorized purposes.

51. Times content is also available for licenses for certain uses through the Copyright Clearance Center (“CCC”), a clearinghouse that licenses material to both corporate and academic users. Through the CCC, The Times permits limited licenses for instruction, academic, other nonprofit uses, and limited commercial uses. For example, a for-profit business can acquire a CCC license to make a photocopy of Times content for internal or external distribution in exchange for a licensing fee of about ten dollars per article. A CCC license to post a single Times article on a commercial website for up to a year costs several thousand dollars.

52. The Times’s ability to continue to attract and grow its digital subscriber base and to generate digital advertising revenue depends on the size of The Times’s audience and users’ sustained engagement directly with The Times’s websites and mobile applications. To facilitate this direct engagement with its products, The Times permits search engines to access and index its content, which is necessary to allow users to find The Times using these search engines. Inherent in this value exchange is the idea that the search engines will direct users to The Times’s own websites and mobile applications, rather than exploit The Times’s content to keep users within their own search ecosystem.

53. While The Times, like virtually all online publishers, permits search engines to access its content for the limited purpose of surfacing it in traditional search results, The Times has never given permission to any entity, including Defendants, to use its content for GenAI purposes.

54. The Times reached out to Microsoft and OpenAI in April 2023 to raise intellectual property concerns and explore the possibility of an amicable resolution, with commercial terms and technological guardrails that would allow a mutually beneficial value exchange between Defendants and The Times. These efforts have not produced a resolution.