It's not a fair use question, it's a question about models reproducing the article text almost verbatim.
(IANAL)
(IANAL)
It seems like the lawsuit here is talking about specific NYT related functionality, like retrieving the text in new articles. That essentially has nothing to do with training and running a foundation LLM, it's about some specific shenanigans with NYT content, and it's legal status would appear to have nothing to do with whether training is fair use.
This is akin to having to explain to non-technical lawyers and judges how crypto works. In the FTX case it became irrelevant because you can just nail them on fraud for using deposited funds for non-allowed reasons.
> Synthetic search applications built on the GPT LLMs, including Bing Chat and Browse with Bing for ChatGPT, display extensive excerpts or paraphrases of the contents of search results, including Times content, that may not have been included in the model’s training set. The “grounding” technique employed by these products includes receiving a prompt from a user, copying Times content relating to the prompt from the internet, providing the prompt together with the copied Times content as additional context for the LLM, and having the LLM stitch together paraphrases or quotes from the copied Times content to create natural-language substitutes that serve the same informative purpose as the original. In some cases, Defendants’ models simply spit out several paragraphs of The Times’s articles.
https://www.courtlistener.com/docket/68117049/1/the-new-york...
It's a separate issue from the fact that the model can regurgitate it's NYT training data.
There's a section on page 63 which helps clarify that:
Defendants materially contributed to and directly assisted
with the direct infringement perpetrated by end-users of the
GPT-based products by way of: (i) jointly-developing LLM
models capable of distributing unlicensed copies of Times
Works to end-users; (ii) building and training the GPT LLMs
using Times Works; and (iii) deciding what content is
actually outputted by the GenAI products, such as grounding
output in Times Works through retrieval augmented generation,
fine-tuning the models for desired outcomes, and/or
selecting and weighting the parameters of the GPT LLMs.
So if ChatGPT didn't refer to it verbatim and if ChatGPT trained on it and mixed it with other content, NYT would be OK with that? Tbh I don't get it.
Edit: I found this in my bookmarks archive - https://news.slashdot.org/story/23/08/15/2242238/nyt-prohibi...
Also this: https://www.cnbc.com/2023/10/18/universal-music-sues-anthrop...
I think also the courts will also side with NYT. Very recently there was a copyright case involving Andy Warhol [1] which he lost. Despite the artwork being visually transformative; it's use was not transformative. So, to me that means if you create a program using NYT's materials that is used as a replacement for NYT it will not count as fair use. Obviously you could just do what say Google does and fork money over to NYT for some license.
However, my initial point is that this is a tangent. NYT has claimed that OpenAI is using NYT's works at least as-is and so OpenAI can just be nailed for that. Which is my point about FTX; it's irrelevant if their exchange was legal since you can just nail them for mis-use of customer funds. Another example would be Al Capone; it doesn't matter if he's a mobster because you can nail him for tax evasion.
[1]: https://www.cbsnews.com/news/andy-warhol-supreme-court-princ...
But broadly speaking this is also the question of the "Open Web" and will it survive or not. Walled gardens like Facebook, Instagram etc. are strong and pervasive but still majority of people use and acknowledge publicly open websites from the Open Web. If AI chat bots do not drive traffic to websites then they are walled gardens and Microsoft, Google or whoever will lock users in and try to squeeze them for money.
A key argument the NYT is making is that part of the definition of fair use is not producing a product that competes with the original.
They argue that ChatGPT et al DO compete with the original, in a way that harms the NYT business model.
One example they give: ChatGPT can reproduce recommendations made by the Wirecutter, without including the affiliate links that form the Wirecutter's main source of revenue - page 48 of https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec20...
Notably, in both those cases, the user is specifically asking for what wirecutter thinks.
To me, that makes the infringing behavior clearly the fault of the user of the tool, not the tool itself.
When I saw this lawsuit announced, I assumed that large portions content were being reproduced in response to generic queries. That isn't the case, every example I've seen from this lawsuit has prompts where the user specifically asks for the content. To me, any fault and liability rests on the user here.
The article also mentions the idea that the model is merely extracting (uncopyrightable) facts, which is interesting, but might be a tough one to prove since LLMs have no way of establishing what are facts, and don't return facts by design.