News organisations in the United States have told a New York court that the US Department of Justice (DoJ) under President Donald Trump was wrong to argue that OpenAI‘s use of copyrighted works to train artificial intelligence (AI) models qualifies as fair use under American copyright law.
The filing, which includes The New York Times, responds to the DoJ’s intervention in a major copyright dispute. The case is not a music industry lawsuit, but its outcome could affect nearly every US legal battle between creators or rightsholders and AI companies, including music industry cases against Suno, Udio and Anthropic.
DoJ position#
Earlier this month, the DoJ told the court that OpenAI’s training on millions of existing works was clearly fair use, meaning the company did not need permission from creators or copyright owners to make copies of their works.
The department said any ruling that OpenAI’s training was not fair use would be ‘inconsistent with basic copyright law principles’ and would ‘severely hamper’ the ‘progress of science and arts’.
Trump officials had previously said it was for the courts to decide whether AI training was fair use. The DoJ’s intervention made clear what outcome the administration believes the courts should reach.
Bias and missing facts#
The news organisations argue that the DoJ’s statement was not ‘an informed assessment of the facts in this case’, even though the department conceded that fair use analysis ‘hinges on the specific facts and uses at issue in each case’. They say the DoJ submitted its statement before much of the case paperwork was made public.
That paperwork includes documents quoting an executive from Microsoft, an OpenAI shareholder, who said the AI industry’s use of existing content to train models was one of the ‘greatest property thefts in human history’ and that any fair use defence would ‘make a complete mockery of the idea of fair use’. The filing notes that those comments are not necessarily relevant to the fair use question.
The filing also says the DoJ ignored hundreds of documents, deposition transcripts from more than 70 witnesses and dozens of expert reports. The news organisations contend the DoJ instead adopted OpenAI’s fair use position for political reasons, citing what they call the ‘political and financial interests’ of the Trump administration. They note that ‘AI companies and their executives have been among this administration’s largest donors’ and that ‘the administration is reportedly considering OpenAI’s offer of a 5% stake in the company to ease Washington pressure’.
National security and licensing economics#
The news organisations say the DoJ’s fair use position mainly echoes the administration’s political stance that ‘the unfettered development of AI is of utmost importance to national security’. They argue that copyright enforcement is not stopping AI development, but even if it were, the US Supreme Court has ‘long recognised that courts do not abdicate their judicial function merely because the executive invokes national security’.
On the DoJ’s claim that requiring AI companies to secure licences would create a major barrier to AI development, the news organisations say this is not true. Licensing deals are possible and are being negotiated, they say, though they will cost AI companies money. ‘In any industry there is payment for raw materials’, the filing states, and for AI training that means paying for licences to access content.
The companies developing AI models can afford those licences, the news organisations add. Many are tech giants that are ‘some of the largest companies in the world’, while OpenAI and Anthropic are ‘expected to go public with stock offerings that would value each company at about $1 trillion’.
The filing also points to OpenAI’s partnership with Microsoft, in which Microsoft provided access to computing power and other resources. ‘Microsoft has spent more than $100 billion on OpenAI’s development’, the news organisations state. They argue that ‘the need to access resources valued at $100 billion was certainly a tremendous barrier to OpenAI’s entry into the AI industry’, and under the DoJ’s logic, ‘Microsoft should have been required to provide its resources to OpenAI for free’.
They add: ‘the fact that OpenAI needed $100 billion from one source merely to begin development of its AI models shows that, on the list of barriers to entry into the AI world, licensing fees for copyrighted content are barely a footnote’.
Copyright Office not consulted#
Finally, the news organisations state that a US government department intervening in a court case would usually first consult relevant government agencies, including the US Copyright Office. They say the DoJ did not do that.
