The Times v. Microsoft/OpenAI: Unauthorized Retrieval and Dissemination of Current News (13)

IV. FACTUAL ALLEGATIONS

C. Defendants’ Unauthorized Use and Copying of Times Content

4. Unauthorized Retrieval and Dissemination of Current News

108. Synthetic search applications built on the GPT LLMs, including Bing Chat and Browse with Bing for ChatGPT, display extensive excerpts or paraphrases of the contents of search results, including Times content, that may not have been included in the model’s training set. The “grounding” technique employed by these products includes receiving a prompt from a user, copying Times content relating to the prompt from the internet, providing the prompt together with the copied Times content as additional context for the LLM, and having the LLM stitch together paraphrases or quotes from the copied Times content to create natural-language substitutes that serve the same informative purpose as the original. In some cases, Defendants’ models simply spit out several paragraphs of The Times’s articles.

109. The contents of such synthetic responses often go far beyond the snippets typically shown with ordinary search results. Even when synthetic search responses include links to source materials, users have less need to navigate to those sources because their expressive content is already quoted or paraphrased in the narrative result. Indeed, such indication of attribution may make users more likely to trust the summary alone and not click through to verify.

110. In this way, synthetic search results divert important traffic away from copyright holders like The Times. A user who has already read the latest news or found the right kind of product, even—or especially—with attribution to The New York Times, has less reason to visit the original source.

111. Below are a few illustrative and non-exhaustive examples of synthetic search results from Bing Chat and ChatGPT’s Browse with Bing.

a) Examples of Synthetic Search Results from Bing Chat

112. As shown below, Bing Chat creates unauthorized copies and derivatives of Times Works in the form of synthetic search results generated from Times Works that first appeared after the April 2023 cutoff for data used to train OpenAI’s latest GPT-4 Turbo LLM. 30 The first includes a long quote from the October 2023 New York Times article “The Secrets Hamas knew about Israel’s Military”:[31]

113. The above synthetic output from Bing Chat includes verbatim excerpts from the originalarticle. The copied article text is highlighted in red below.

114. The synthetic output displays significantly more expressive content from the original article than what would traditionally be displayed in a Bing search result for the same article, as shown below. Unlike a traditional search result, the synthetic output also does not include a prominent hyperlink that sends users to The Times’s website.

115. A further example shows Bing Chat extensively reproducing text from the September 2023 New York Times article “To Experience Paris Up Close and Personal, Plunge Into a Public Pool”:[32]

116. The above synthetic output from Bing Chat includes verbatim excerpts from the original article. The copied article text is highlighted in red below.

117. The synthetic output displays significantly more expressive content from the original article than what would traditionally be displayed in a Bing search result for the same article, as shown below. Unlike a traditional search result, the synthetic output also does not include a prominent hyperlink that sends users to The Times’s website.

b) Synthetic Search Results from ChatGPT Browse with Bing

118. The below examples show that ChatGPT’s Browse with Bing plug-in also outputs unauthorized copies and derivatives of copyrighted works from The Times in the form of synthetic search results generated from Times Works that first appeared after the April 2023 cutoff for data used to train OpenAI’s latest GPT-4 Turbo LLM. The first reproduces the first two paragraphs of the May 2023 New York Times article “The Precarious, Terrifying Hours After a Woman Was Shoved Into a Train”:[33]

119. The above synthetic output from ChatGPT with the Browse with Bing plugin includes verbatim excerpts from the original article. The copied article text is highlighted in red below

120. The synthetic output displays significantly more expressive content from the original article than what would traditionally be displayed in a Bing search result for the same article as shown below. Unlike a traditional search result, the synthetic output also does not include a prominent hyperlink that sends users to The Times’s website.

121. This example likewise shows Browse with Bing for ChatGPT reproducing the first two paragraphs of The New York Times article “Are the Hamptons Still Hip?” from May 2023.[34]

122. The above synthetic output from ChatGPT with the Browse with Bing plugin includes verbatim excerpts from the original article. The copied article text is highlighted in red below.

123. Again, the synthetic output displays significantly more expressive content from the original article than what would traditionally be displayed in a Bing search result for the same article, as shown below. Unlike a traditional search result, the synthetic output also does not include a prominent hyperlink that sends users to The Times’s website.

[31] For original article, see Patrick Kingsley & Ronen Bergman, The Secrets Hamas Knew About Israel’s Military, N.Y. TIMES (Oct. 13, 2023), https://www.nytimes.com/2023/10/13/world/middleeast/hamas-israel-attackgaza.html.

[32] For original article, see Catherine Porter, To Experience Paris Up Close and Personal, Plunge Into a Public Pool, N.Y. TIMES (Sept. 3, 2023), https://www.nytimes.com/2023/09/03/world/europe/paris-franceswimming-pools.html.

[33] For original content, see Hurubie Meko, The Precarious, Terrifying Hours After a Woman Was Shoved Into a Train, N.Y. TIMES (May 25, 2023), https://www.nytimes.com/2023/05/25/nyregion/subway-attack-womanshoved-manhattan.html.

[34] For original article, see Anna Kodé, Are the Hamptons Still Hip?, N.Y. TIMES (May 26, 2023),

https://www.nytimes.com/2023/05/26/realestate/hamptons-summer-housing-costs.html.