The New York Times’ (NYT) legal proceedings against OpenAI and Microsoft has opened a new frontier in the ongoing legal challenges brought on by the use of copyrighted data to “train”, or improve generative AI.

There are already a variety of lawsuits against AI companies, including one brought by Getty Images against StabilityAI, which makes the Stable Diffusion online text-to-image generator. Authors George R.R. Martin and John Grisham have also brought legal cases against ChatGPT owner OpenAI over copyright claims. But the NYT case is not “more of the same” because it throws interesting new arguments into the mix.

The legal action focuses in on the value of the training data and a new question relating to reputational damage. It is a potent mix of trade marks and copyright and one which may test the fair use defences typically relied upon.

It will, no doubt, be watched closely by media organisations looking to challenge the usual “let’s ask for forgiveness, not permission” approach to training data. Training data is used to improve the performance of AI systems and generally consists of real world information, often drawn from the internet.

The lawsuit also presents a novel argument – not advanced by other, similar cases – that’s related to something called “hallucinations”, where........

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