The Association of American Publishers has joined together with the Independent Book Publishers Association (IBPA), the International Association of Scientific, Technical & Medical Publishers (STM), and Copyright Clearance Center (CCC) to file an amicus brief in support of the author, book publisher, and news publisher plaintiffs who are asking the U.S. District Court for the Southern District of New York to grant summary judgment in favor of dismissing claims by OpenAI and Microsoft that their copying of copyrighted materials is fair use.
The case is comprised of the original lawsuit filed by the Authors Guild that was eventually consolidated with other class action lawsuits and is now known as In Re: Open AI Inc. Copyright Infringement Litigation. In September, the Guild and other plaintiffs filed suit seeking summary judgment.
In its friend of the court brief, the organizations lean heavily on the defendants’ own statements in arguing that allowing OpenAI to continue copying works without permission will dilute the market for original created works while also weakening opportunities for publishers to license their content.
In what is becoming a popular line
In what is becoming a popular line of argument, the brief notes that by illegally training on George R.R. Martin’s A Song of Ice and Fire series, OpenAI pursued a “research mission” to develop an LLM that can “write the last two books” of the series if Martin’s doesn’t do it himself. Moreover, the brief points out that ChatGPT has already generated sequels that are substitutes for Martin’s forthcoming The Winds of Winter.
Continuing to highlight concerns over market dilution, the brief also cites a Microsoft employee who concluded that the economic victims of LLMs included authors “who were no longer able to sell their books because there are so many substitutive AI-generated books out there.”
The creation of works that would compete will the originals is not protected by the fair use doctrine, the publishers contend.
Overly expansive interpretations of fair use displace
“Overly expansive interpretations of fair use displace the market mechanisms Congress established, replacing negotiated exchange with uncompensated use and transferring value from the authors and publishers that invest in them to industries that neither incurred the costs nor assumed the risks of producing the underlying works,” their brief states.
The brief argues that under the Copyright Act, no matter how dazzling the technology seems to be, “using copyrighted works to train generative AI models does not warrant special treatment” and cannot be considered fair use.
In her prepared statement on behalf of the AAP and the other organizations that filed the brief, AAP president and CEO Maria A. Pallante stressed that “the failure of AI companies to pay for the works they need is an unjustified and damaging departure from the operation and integrity of the law.”
It has become clear, Pallante continued, that authors and publishers have become “integral to producing Open AI’s large language models, which absent guardrails and financial participation have the power to diminish both the value of the works copied and the long-term
