Paywall violation ‘eviscerates’ fair use defense: What OpenAI-NYT twist means for publishers

What we’re seeing
  • OpenAI’s head of ChatGPT Nick Turley wrote that “[p]ublishers” face an “existential threat” from OpenAI’s products, which, he said, “are largely substitutive, period” and “will get more and more substitutive as they get better.” 
  • A Microsoft executive described how defendants “started a ‘doom loop’ that will hurt the performance of our models and the entire web at the same time.” 
  • OpenAI co-founder and president Greg Brockman wrote that OpenAI’s models are “particularly good at predicting text of news articles,” “excellent at news,” and “very good at any news task.” 
  • Microsoft recorded 83-93% drops in “click-through rates” for The New York Times’ and Daily News’ domains when comparing click-through rates for its traditional Bing Search engine with click-through rates for its Copilot chatbot. 
  • Microsoft’s CEO Satya Nadella testified that conversing with chatbots “has substituted … giving you the information right there on the website on the AI platform versus needing to go to the underlying source.”

A new tranche of internal emails and analysis in The New York Times’ lawsuit against OpenAI and Microsoft spells out what publishers have suspected for years: tech giants treated their journalism as free fuel for AI products that could ultimately wipe out the businesses that created it. 

The filings, unsealed last Thursday, show executives talking about the “gazillions” of dollars at stake in commercializing AI models while privately acknowledging the “existential threat” those products pose to publishers’ underlying economics. 

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Author: Jessica Davies

Search & Affiliate Marketing Strategist since 1993