Courts have not weighed in on how those standards apply to A.I. tools.
“There isn’t a clear answer to whether or not in the United States that is copyright infringement or whether it’s fair use,” said Ryan Abbott, a lawyer at Brown Neri Smith & Khan who handles intellectual property cases. “In the meantime, we have lots of lawsuits moving forward with potentially billions of dollars at stake.”
It could be a while before the industry gets definitive answers.
The lawsuits posing these questions are in early stages of litigation. If they don’t produce settlements (as most litigation does), it could be years until a Federal District Court rules on the matter. Those rulings would probably be appealed, and appellate decisions could vary by circuit, which could potentially elevate the question to the U.S. Supreme Court.
Getting there could take about a decade, Mr. Abbott said. “A decade is an eternity in the market that we’re currently living through,” he said.
The Times said in its suit that it had been in talks with Microsoft and OpenAI about terms for resolving the dispute, possibly including a license. The Associated Press and Axel Springer, the German owner of outlets like Politico and Business Insider, have recently reached data licensing agreements with OpenAI.
Taking cases to trial could answer vital questions about what copyrighted data A.I. developers are able to use and how. But it could also simply serve as leverage for a plaintiff to secure a more favorable licensing deal through a settlement.