Fair use is the key to OpenAI’s defense strategy.
Eischen 24 – J.D. student at Vanderbilt Law School.
Jay Eischen, “(Un)fair Use?: Understanding the New York Times’s Lawsuit Against Microsoft and OpenAI,” JetLaw, 01-08-2024, https://www.vanderbilt.edu/jetlaw/2024/01/08/unfair-use-understanding-the-new-york-timess-lawsuit-against-microsoft-and-openai/
The most apt defense available to OpenAI is the concept of “fair use,” which allows the use of copyrighted materials “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research”.[5] For example, Google successfully invoked fair use to defend against claims of copyright infringement when it scanned and uploaded millions of books as part of its Google Books project—a favorable precedent that OpenAI would likely cite extensively.[6] Fair use determinations are guided by four factors:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”[7]