• by Ray Schultz , Columnist, July 7, 2024

OpenAI, unable settle the copyright lawsuit filed against it by The New York Times, is now demanding that the paper surrender “reporter’s notes, interview memos, records of materials cited, or other ‘files’ for each asserted work,” as part of pre-trial discovery. 

The ostensible reason is to force the Times to prove its copyright entitlements. But if the government tried to pull this, it would be a clear First Amendment violation.

What makes these overreachers think they can succeed with this?

Rest assured, The Times is not complying. In a letter filed with the court last Wednesday, the Times asserts that its “newsgathering process on a story-by-story basis has no relevance to whether it is entitled to enforce the millions of copyrights it has registered over the years.” 

More importantly, the Times states that this demand by OpenAI “would entail the disclosure of The Times’s confidential reporters’ files on investigative reporting into highly sensitive matters, including those related to the Defendants themselves.” Although OpenAI denies it, that could pose a risk to confidential sources.

Anyway, OpenAI doesn’t need these disclosures. It already can see the sources for most Times stories, including interviews, announcements, public records and live coverage of events. 

Perhaps OpenAI is trying to gum up the discovery process and stall for time. 

Here’s another problem. The Times can afford to fight this. But what about a smaller entity like the Center for Investigative Reporting, which also recently filed suit? Suppose OpenAI decides it wants the confidential investigative files of Mother Jones.

(On another front, the Times reported on Thursday that a hacker stole OpenAI technology secrets).

A case like this could yet be settled out of court despite the current jockeying. In the interim, publishers that have signed lucrative contracts with OpenAI—like News Corp. and Time magazine—should let their new partner know that this gambit is unacceptable, and go public with those concerns.