The Times v. Microsoft/OpenAI: Defendants’ Unauthorized Use and Copying of Times Content (14)

IV. FACTUAL ALLEGATIONS

C. Defendants’ Unauthorized Use and Copying of Times Content

5. Willful Infringement

124. Defendants’ unauthorized reproduction and display of Times Works is willful. Defendants were intimately involved in training, fine-tuning, and otherwise testing the GPT models. Defendants knew or should have known that these actions involved unauthorized copying of Times Works on a massive scale during training, resulted in the unauthorized encoding of huge numbers of such works in the models themselves, and would inevitably result in the unauthorized display of such works that the models had either memorized or would present to users in the form of synthetic search results. In fact, in late 2023 before his ouster and subsequent reinstatement as OpenAI’s CEO, Sam Altman reportedly clashed with OpenAI board member Helen Toner over a paper that Toner wrote criticizing the company over “safety and ethics issues related to the launches of ChatGPT and GPT-4, including regarding copyright issues.”

125. The Times specifically put Defendants on notice that these uses of Times Works were not authorized by placing copyright notices and linking to its terms of service (which contain, among other things, terms and conditions for the use of its works) on every page of its websites whose contents Defendants copied and displayed. Upon information and belief, Defendants intentionally removed such copyright management information (“CMI”) from Times Works in the process of preparing them to be used to train their models with the knowledge that such CMI would not be retained within the models or displayed when the models present unauthorized copies or derivatives of Times Works to users, and thereby facilitate or conceal their infringement.

126. Upon information and belief, Defendants were aware of many examples of copyright infringement after ChatGPT, Browse with Bing, and Bing Chat were released, some of which were widely publicized. In fact, after the release of ChatGPT and Bing Chat, The Times reached out to Defendants to inform them that their tools infringed its copyrighted works.