The New York Times Cannot Sue for Conduct Occurring More than Three Years Ago

A. The Times Cannot Sue for Conduct Occurring More than Three Years Ago

Count I, for direct infringement, is based in part on OpenAI’s creation and use of training datasets for GPT-2 and GPT-3. Compl. ¶¶ 160, 162. That claim appears to hinge on allegations regarding (1) construction of the “WebText” database and OpenAI’s use of that dataset to train GPT-2, see id. ¶ 85; (2) construction of an “expanded version of the WebText dataset” called “WebText2,” see id. ¶ 87; and (3) use of WebText2 and Common Crawl to train GPT-3, see id. ¶¶ 87–88. Because all those activities occurred more than three years ago, supra 7, any claims based on them are time-barred, 17 U.S.C. § 507(b) (three-year limitations period).[33] Those claims are “stale,” and the court should dismiss them so the parties can focus discovery on activities within the limitations period. United States v. Kubrick, 444 U.S. 111, 117 (1979) (“[T]he right to be free of stale claims in time comes to prevail over the right to prosecute them”).

[33] These claims are time-barred regardless of whether the discovery rule applies, as the Times discovered or with reasonable diligence should have discovered these activities prior to December 27, 2020.