Part 15 - Misappropriation of Commercial Referrals

IV. FACTUAL ALLEGATIONS

D. Misappropriation of Commercial Referrals

127. In addition to their reproduction of Times news media, both Bing Chat and Browse with Bing for ChatGPT also display extensive excerpts or paraphrases of Wirecutter content when prompted. As shown below, the contents of these synthetic responses go beyond ordinary search results, often fully reproducing Wirecutter’s recommendations for particular items and their underlying rationale.

128. Wirecutter generates the vast majority of its revenue via affiliate referral. Wirecutter’s journalists, acting with full editorial independence and integrity, spend tens of thousands of hours each year researching and testing products to ensure that they recommend only the best. Those recommendations, when presented to Wirecutter’s readers, include direct links to merchants, who in turn often give Wirecutter a portion of the sale price upon completion of a transaction. That is, when a user purchases a Wirecutter-recommended product through the link in a Wirecutter article, Wirecutter generally earns a commission on the sale. Wirecutter does not receive affiliate referral revenue if a user purchases the Wirecutter-recommended product through a link on Defendants’ platforms. As with The Times’s other products, decreases in traffic to Wirecutter also impact its advertising and subscription revenue.

129. Detailed synthetic search results that effectively reproduce Wirecutter recommendations create less incentive for users to navigate to the original source. Decreased traffic to Wirecutter articles, and in turn, decreased traffic to affiliate links, subsequently lead to a loss of revenue for Wirecutter. A user who already knows Wirecutter’s recommendations for the best cordless stick vacuum, and the basis for those recommendations, has little reason to visit the original Wirecutter article and click on the links within its site. In this way, Defendants’ generative AI products directly and unfairly compete with Times content and usurp commercial opportunities from The Times.

130. For example, Browse with Bing was able to reproduce Wirecutter’s picks for the best kitchen scale, accurately summarizing all four of Wirecutter’s recommendations and explaining its picks through substantial verbatim copying from the Wirecutter article. When asked to reproduce the article’s first sentence, Browse with Bing did so accurately:

131. Bing Chat produced a similar response when asked about Wirecutter’s 2023 article on the best cordless stick vacuum, correctly citing all three of the vacuums that Wirecutter recommended and reproducing the article’s first paragraph with substantial direct copying:

132. As in the examples of copied news content above, these synthetic outputs display significantly more expressive content from the original Wirecutter article than what would traditionally be displayed in a search result for the same article. Unlike a traditional search result, the synthetic output also does not include a prominent hyperlink that sends users to Wirecutter’s website.

133. Users rely on Wirecutter for high-quality, well-researched recommendations, and Wirecutter’s brand is damaged by incidents that erode consumer trust and fuel a perception that Wirecutter’s recommendations are unreliable.

134. In response to a query regarding Wirecutter’s recommendations for the best office chair, GPT-4 not only reproduced the top four Wirecutter recommendations, but it also recommended the “La-Z-Boy Trafford Big & Tall Executive Chair” and the “Fully Balans Chair”—neither of which appears in Wirecutter’s recommendations—and falsely attributed these recommendations to Wirecutter:

135. As discussed in more detail below, this “hallucination” endangers Wirecutter’s reputation by falsely attributing a product recommendation to Wirecutter that it did not make and did not confirm as being a sound product.