757 F.Supp.3d 594
S.D.N.Y.2024Background
- The New York Times filed suit alleging Microsoft and OpenAI used its copyrighted works without permission to train large-language models (LLMs).
- The defendants sought to compel production of documents about the Times’ use of, and position regarding, its own and third-party generative AI (GenAI) tools.
- OpenAI argued this information was relevant to its fair use defense.
- The Times contended that such discovery was neither relevant nor proportional to the case’s needs.
- The Times had already agreed to produce some documents regarding its awareness of defendants’ practices and certain uses of GenAI tools.
- The magistrate judge denied the defendants’ motion to compel further discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance of Times’ Use of GenAI to Fair Use Defense | Only defendant’s use matters for fair use; discovery demanded is not relevant | Times’ own use/knowledge of GenAI and market impact is relevant to fair use; may show acknowledgment or market practices | Discovery not relevant; focus is on defendants’ alleged copying, not the Times' views, use, or statements about GenAI |
| Proportionality of Discovery | Requested scope is disproportionate and overbroad | Broader discovery justified by possible market and public benefit issues under fair use | Requests are overly broad and not proportional; denied |
Key Cases Cited
- Hachette Book Group, Inc. v. Internet Archive, 115 F.4th 163 (2d Cir. 2024) (outlines statutory fair use factors under the Copyright Act)
- Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021) (explains public benefit aspect of fair use but focuses on copying’s market effect and benefit, not general industry practices)
- American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1995) (fair use market effect must focus on defendant’s conduct, not plaintiff’s other uses/licensing)
- Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) (fair use inquiry centers on the copier’s use, not copyright owner’s; benefit analysis applies to defendant’s conduct)