Microsoft and OpenAI have been sued for copyright infringement in several recently filed lawsuits in the USA.

In late December 2023, The New York Times sued Microsoft and OpenAI for copyright infringement in relation to alleged use of the newspaper’s articles to train artificial intelligence models. The complaint states that “Through Microsoft’s Bing Chat (recently rebranded as “Copilot”) and OpenAI’s ChatGPT, Defendants seek to free-ride on The Times’s massive investment in its journalism by using it to build substitutive products without permission or payment”. The Complaint goes on further to state that the New York Times wishes to hold Microsoft and Open AI liable for “the billions of dollars in statutory and actual damages that they owe for the unlawful copying and use of The Times’s uniquely valuable works”.

Shortly after the Times’s lawsuit, two non-fiction book authors also sued Microsoft and OpenAI for copyright infringement in a proposed class action. Nicholas Basbanes and Nicholas Gage alleged in their class action complaint that the Defendants created their large language model by “engag[ing] in a massive and deliberate theft of copyrighted works created by writers like Mr. Basbanes and Mr. Gage”. Statutory damages of $150,000 per infringed work is sought in the class action complaint.

The lawsuits are a reminder of the prickly legal and ethical dilemmas facing AI tools like ChatGPT that are created using large training sets of data. While both of the aforementioned lawsuits were filed in American Courts, Canadian content creators should be aware of potential forthcoming judicial decisions and/or legislative amendments addressing these issues in Canada.

More information is available at the following two links, here and here.