AI training built on fair use looks shaky when the

What happened

A new court filing by The New York Times and other plaintiffs cites previously undisclosed internal emails and sworn testimony from OpenAI and Microsoft executives. The New York Times and several other media companies have filed a joint summary judgment brief in US District Court in New York.

OpenAI co-founder Greg Brockman discussed the models' ability to handle news in an internal message. The plaintiffs describe how OpenAI systematically bypassed paywalls and ignored terms of service. " Around 2017, Brockman also wrote that he was "deeply motivated by the gazillions" he hoped to earn by commercializing OpenAI's technology.

OpenAI's corporate representative testified that he knew of no method for detecting paywalled content in the training data and no effort to remove it. The company's standard crawling process "did not include reviewing websites['] ... " He said he would have forced OpenAI to retrain its models had he known the company had scraped paywalled content and used it for training. 8 million articles, through a third party.

" OpenAI employees knew using the corpus to train models "would not be appropriate," but did so anyway. Immediately after the lawsuits were filed, OpenAI built a filter to suppress output most likely drawn from the plaintiffs' publications, according to the brief. Content from companies that hadn't sued remained unaffected. The plaintiffs argue that the filter was designed not to protect copyrights but to prevent them from gathering evidence.

Why it matters

Joining the Times are the Daily News group, which includes the Chicago Tribune and Denver Post, and Ziff Davis, which owns CNET, IGN, and PCMag. The plaintiffs also include the Center for Investigative Reporting, home to Mother Jones, and The Intercept. The plaintiffs are seeking billions of dollars in damages, according to the Financial Times.

The 92-page brief is part of consolidated multidistrict litigation that brings together several lawsuits, beginning with the New York Times suit filed in December 2023. The brief draws on internal emails, Slack messages, and sworn testimony disclosed during discovery, including statements that undercut the AI companies' fair use defense.

" The US Copyright Office also concluded in May 2025 that fair use cannot apply broadly given the sheer scale at which AI companies copy data. The official who oversaw the report was later fired by the Trump administration. Nick Turley, OpenAI's head of ChatGPT, wrote that publishers face an "existential threat," according to the brief.

" Microsoft CEO Satya Nadella confirmed under oath that chatbot conversations had replaced visits to original sources. " It was not a "conclusion about copyright questions" at the center of the case, the company said. " Microsoft's own data shows that click-through rates on Copilot were much lower than on traditional Bing search.

Rates were down 87 to 93 percent for the New York Times, 83 to 91 percent for the Daily News group, and 51 to 94 percent for Ziff Davis. OpenAI internally described local news, a core business for the Daily News group, as a "pretty common quer[y]" in ChatGPT. Other studies have also found that chatbot answers sharply reduce traffic to the open web.

What to watch

" Even so, the brief includes numerous examples of problematic outputs, with ChatGPT reproducing exact copies and summaries of NYT articles on request, including articles behind a paywall. The plaintiffs also argue that the fair use defense fails on all four statutory factors. They say the use is substitutive and commercial rather than transformative, while the articles are expressive works at the core of copyright protection.

The defendants also copied entire works, even though their own experts admitted that no single work was necessary. On market harm, the plaintiffs point to existing licensing markets and those that could realistically develop.