It’s a strange time. OpenAI (and Microsoft) are being sued by the New York Times and they’re claiming ‘Fair Use’ as if they’re having some coffee and discussing what they read in the New York Times, or are about to write a blog post about the entire published NYT archives, on demand.

It’s not just the New York Times, either. More and more authors are doing the same, or started before NYT.

IEEE’s article, “Generative AI has a Visual Plagiarism problem” demonstrates issues that back up the copyright claims. This is not regurgitation, this is not fair use – there is line by line text from the New York Times, amongst other things.

As I noted yesterday, OpenAI is making deals now for content and only caught this morning that, ‘The New York Times, too, had been in conversations with OpenAI to establish a “high-value” partnership involving “real-time display” of its brand in ChatGPT, OpenAI’s AI-powered chatbot.‘.

Clearly, discussions didn’t work out. I was going to link the New York Times article on it, but it seems I’ve used up my freebies so I can’t actually read it right now unless I subscribe.¹ At this end of things, as a simple human being, I’m subject to paywalls for content, but OpenAI hasn’t been. If I can’t read and cite an article from the New York Times for free, why should they be able to?

On the other hand, when I get content that originated from news sites like the New York Times, there is fair use happening. People transform what they have read and regurgitate it, some more intellligibly than others, much like an artificial intelligence, but there is at least etiquette – linking the source, at the least. This is not something OpenAI does. It doesn’t give credit. It just inhales large amounts of text, the algorithms decide on the best ways to spit them out to answer prompts. Like blogging, only faster, and like blogging, sometimes it just makes stuff up.

This is not unlike a well read person doing the same. Ideas, thoughts, even memes are experiences we draw upon. What makes these generative artificial intelligences different? Speed. They also consume a lot more water, apparently.

The line has to be drawn somewhere, and since OpenAI isn’t living up to the first part of it’s name and is not being transparent, people are left poking a black box to see if their copyright has been sucked in without permission, mention, or recompense.

That does seem a bit like unfair use. This is not to say that the copyright system couldn’t use an overhaul, but apparently so could how generative AIs get their content.

What is that ‘Open’ in OpenAI mean, anyway?

1. They do seem to have a good deal right now, I did try to subscribe but it failed for some obscure reason. I’ll try again later. $10 for a year of the New York Times is a definite deal, if only they could process my payment this morning. ↩︎