The original “Mothra vs. Godzilla” came out in 1964, which means that even the people who saw it then can’t remember it. So allow me to recap. Mothra — a moth goddess, so fertile and nurturing that her brown speckled-body could be a Goop caftan — lays a giant larvae-filled egg off the coast of Japan. Godzilla — coldblooded stomper of things — wants to smash the egg. A huge battle ensues between the forces of creation and destruction.

This is essentially the story the New York Times tells in its lawsuit against OpenAI. The Times (Mothra) is a life force of liberal democracy fighting off a Big Tech destroyer. OpenAI (Godzilla) has already pillaged the Times by using its articles to train ChatGPT without permission. The suit’s inclusion of ChatGPT results that are near word-for-word rip-offs of the New York Times’s stories does indeed make OpenAI look very stompy.

OpenAI rejects this premise entirely. Why, just recently it was negotiating rights fees with the Times! In a blog post written in the tone of a man unsure why his date left the restaurant, the company says, “Our discussions with the New York Times had appeared to be progressing constructively. … We regard the New York Times’ lawsuit to be without merit. Still, we are hopeful for a constructive partnership with the New York Times and respect its long history.”

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There are several cases at the intersection of copyright and generative AI — Sarah Silverman vs. Meta, Getty Images vs. Stability AI — but this is the only one that could tempt Don King out of retirement. These are culturally dominant apex corporations, with well-earned reputations for innovation and arrogance. Yet it’s also an underdog story. The Times is worth about $8 billion. OpenAI checks in at about $100 billion, while its largest stakeholder, Microsoft, is worth 16 Jeff Bezoses.

As a journalist who writes about artificial intelligence, NYT vs. OpenAI is the only thing people in my professional life want to talk about. And they all have the same question: How does it end?

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Elon Musk famously declared that “The most entertaining outcome is the most likely.” This is obviously insane, but it’s solid column-writing advice. So let’s indulge Musk’s Razor and dive a little deeper into the three possibilities: (1) A verdict. (2) Congressional action that cleans up copyright law and obviates the need for a verdict. (3) A settlement.

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The most entertaining outcome would clearly be the New York Times taking its case all the way to the Supreme Court where it proves it’s been the victim of such rapacious harm that the justices, emerging in Tom Friedman mustaches, rule unanimously in the Gray Lady’s favor.

Now the entertaining part: The court then agrees with the Times’s demand that OpenAI destroy any chatbot models and training data that use copyrighted Times material. This is known as algorithmic disgorgement — a legal concept to address unlawful gains from algorithmic sneakiness. An ordinary tech company might be forced, at significant cost, to remove infringing material from its product. But generative AI isn’t ordinary tech. It’s created through the combination of hundreds of billions of parameters of information and language. That makes extracting the New York Times from ChatGPT as impossible as removing the eggs from a cake. If subjected to disgorgement, OpenAI could theoretically be forced to eliminate everything it used to train ChatGPT and start over, essentially killing the company. The next day’s Wordle: Pwned.

I don’t think any of this is going to happen. First of all, OpenAI has a better-than-decent fair use argument based on ChatGPT’s ability to transform Times articles into something original. (OpenAI dismisses the Times’s plagiarism claims as a “rare bug.”) Consideration of social benefit is also part of fair use. That’s why news organizations are frequently allowed to use copyrighted materials, or a poetry scholar can use excerpts of a poem. Societally, we’ve decided those are things we want to encourage. You can debate whether ChatGPT use is a social good, but tens........

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