The New York Times Has Spent $10.8M in Its Legal Battle with OpenAI So Far

> So if OpenAI wins this case we could just trade prompts that regurgitate the articles back without ever visiting NYT.

This seems like the inverse of the old "book cipher" scheme to "avoid" copyright infringement.

If you want to distribute something you're not allowed to, first you find some public data (e.g. a public domain book), then you xor it against the thing you want to distribute. The result is gibberish. Then you distribute the gibberish and the name of the book to use as a key and anyone can use them to recover the original. The "theory" is that neither the gibberish nor the public domain book can be used to recover the original work alone, so neither is infringing by itself, and any given party is only distributing one of them. Obviously this doesn't work and the person distributing the gibberish rather than the public domain book is going to end up in court.

So then which side of the fence is ChatGPT and which side is the text you have to feed it to get it to emit the article? Well, it's the latter that you need access to both the existing ChatGPT and the original article in order to produce.

Notice also that this fails in the same way. The people distributing the text that can be combined with the LLM to reproduce the article are the ones with the clear intention to infringe the copyright. Moreover, you can't produce the prompt that would get ChatGPT to do that unless you already have access to the article, so people without a subscription can't use ChatGPT that way. And, rather importantly, the scheme is completely vacuous. If you already have access to the article needed to generate the relevant prompt and you want to distribute it to someone else, you don't have to give them some prompt they can feed to ChatGPT, you can just give them the text of the article.

I agree. If you gzip a NYT article and print it out, very few people would be able to read the article. But it can still be decoded ("prompt engineering" as OpenAI calls it).

Copyright maximalism in the 21st century can be summed up as: When an individual makes a single copy of a song and gives it to a friend, that's piracy. When a corporation makes subtlety different copies of thousands of works and sells them to customers, that's just fair use

I'd say there's some merit to that defense. Imagine for example if a website generated itself based on a sequence in Pi - technically all of the NYT is in that 'dataset' and if you tell it to start at the right digit it will spit back any NYT article. In a more realistic sense though you can make it spit back anything you want and the NYT article is just a consequence of that behavior - finding the right 'secret code' to get a verbatim article is not something you can easily just do.

ChatGPT is somewhere in-between - You can't just ask it for a specific NYT article and have it spit it back at you verbatim (NYT acknowledges as such, it took them ~10k prompts to do it), but with enough hints and guesses you can coax it into producing one (along with pretty much anything else you want). The question then becomes whether that's closer to the Pi example (ChatGPT is basically just spitting the prompt back at you), or if it's easy enough to do that it similar to ChatGPT just hosting the article.

Edit: I suppose I'd add, this is also a separate question from the training, training on copyrighted material may or may not be legal regardless of whether the model can verbatim spit the training material back out.

1. Anyone can get all of NYT's articles for free along with CNN and every other major news site, this isn't in dispute, it's available here in a single 93 terabyte compressed file:

https://data.commoncrawl.org/crawl-data/CC-MAIN-2025-05/inde...

2. I did not see any defense of this nature.

3. Yes and this is the big deal. If the secret code needed to reproduce copyrighted material involves large portions of that copyrighted material already then that's quite a bit different than just verbatim reproductions out of thin air.

4. Yes, if OpenAI wins this case then you could feed into ChatGPT large portions of NYT articles and OpenAI could possibly respond by regurgitating similar such portions of NYT articles in response.

It's probably worth considering how the thing actually works.

LLMs are sort of like a fancy compression dictionary that can be used to compress text, except that we kind of use them in reverse. Instead of compressing likely text into smaller bitstrings, they generate likely text. But you could also use them for compression of text because if you take some text, there is highly likely a much shorter prompt + seed that would generate the same text, provided that it's ordinary text with a common probability distribution.

Which is basically what the lawyers are doing. Keep trying combinations until it generates the text you want.

But the ability to do that isn't really that surprising. If you feed a copyrighted article to gzip, it will give you a much shorter string that you can then feed back to gunzip to get back the article. That doesn't mean gunzip has some flaw or ill intent. It also doesn't imply that the article is even stored inside of the compression library, rather than there just being a shorter string that can be used to represent it because it contains predictable patterns.

It's not implausible that an LLM could generate a verbatim article it was never even trained on if you pushed on it hard enough, especially if it was trained on writing in a similar style and other coverage of the same event.

No this is untrue. Independent creation is an affirmative defense against copyright infringement. You'd never convince a jury that you independently wrote the exact same article as a New York Times article, but in principle you can argue that you independently wrote say... a song, or even reimplemented the WIN32 API without ever having read or familiarized yourself with the original source code:

https://github.com/wine-mirror/wine

https://harvardlawreview.org/print/vol-128/creating-around-c...

> but my understanding of copyright is that if a person when into a clean room and wrote an new article from scratch, without having read any NYT, that just so happened to be exactly the same as an existing NYT article, it would still be a copyright violation.

It would not be. Independent creation is a complete defense against copyright infringement.

Patents, however, do work this way.

This is a problem with copyright law. There is no way for an end user to determine the copyright status of anything on the Internet, you can only make an educated guess.

> "Defendants’ tools undermine and damage The Times’s relationship with its readers and deprive The Times of subscription, licensing, advertising, and affiliate revenue."

News flash: you can read newspaper articles at the library.

Because the times is trying to get millions or billions in compensation if they win, why would you lower your odds of winning by getting cheaper lawyers just to save a few 100 k?

They have, let’s not call it a union to not upset people, but let’s say a collective agreement that they won’t work for capital. They will only work for other lawyers. So there’s no Walmart Law or other enterprise selling legal services for cheap.

They're not.

Median lawyer rates are more like $200-300/h, with variations depending on locality--a lawyer in NYC is going to be much more expensive than a lawyer in middle-of-nowhere, Kentucky.

As for why they're expensive, part of the answer is because legal training (i.e., law school) is expensive, and lawyers have to pay their student debt.

Because people are willing to pay that amount

That is pretty cheap for NYC lawyer.