The New York Times Company v. Microsoft Corporation - Part 18 - G. Harm to The Times

IV. FACTUAL ALLEGATIONS

G. Harm to The Times

154. Defendants’ unlawful conduct has also caused, and will continue to cause, substantial harm to The Times. The Times invests enormous resources in creating its content to inform its readers, who in turn purchase subscriptions or engage with The Times’s websites and mobile applications in other ways that generate revenue. Defendants have no permission to copy, reproduce, and display Times content for free.

155. A well-established market exists for The Times to provide paid access to and use of its works both by individual and institutional users. Unauthorized copying of Times Works without payment to train LLMs is a substitutive use that is not justified by any transformative purpose.

156. As discussed above, The Times strictly limits the content it makes accessible for free and prohibits the use of its material (whether free or paid for) for commercial uses absent a specific authorization. Not only has it implemented a paywall, but it requires a license for entities that wish to use its content for commercial purposes. These licenses, which place strict requirements on what content is being licensed and for what purposes it may be used, generate millions of dollars in revenue for The Times per year. Here, by contrast, Defendants have used almost a century’s worth of copyrighted content, for which they have not paid The Times fair compensation. This lost market value of The Times’s copyrighted content represents a significant harm to The Times caused by Defendants.

157. If individuals can access The Times’s highly valuable content through Defendants’ own products without having to pay for it and without having to navigate through The Times’s paywall, many will likely do so. Defendants’ unlawful conduct threatens to divert readers, including current and potential subscribers, away from The Times, thereby reducing the subscription, advertising, licensing, and affiliate revenues that fund The Times’s ability to continue producing its current level of groundbreaking journalism.