• by Ray Schultz , Columnist, June 13, 2024

Microsoft and OpenAI have asked a federal court to toss the “harvesting” suit filed against them by eight Alden Global Capital papers in April.

The Microsoft motion notes that The New York Times had filed a similar lawsuit earlier. And it argues that, like the Times complaint, “this one elides the key technical and legal fact that will ultimately decide this case: Microsoft and OpenAI’s tools neither exploit the protected expression in the Plaintiffs’ digital content nor replace it—they extract and share elements of language, culture, ideas, and knowledge that belong to all of us.”

The motion asserts that the newer lawsuit contains “the same deficiencies.”

For one, the plaintiffs have not alleged “either a real-world instance of infringement of their works, nor Microsoft’s knowledge of specific instances of infringement to which it could have knowingly contributed,” Microsoft states. 

In addition, the newspapers cannot charge that the “removal of CMI from their works would ever lead to piracy of those works,” nor that the GPT-based products would output identical copies of works, it adds. 

Also, the plaintiffs “assert a state-law trademark dilution claim not presented in The Times' Complaint.” 

"By asserting this claim, Plaintiffs seek to deploy New York law to directly regulate transactions occurring wholly out of state, governing what content may appear on computer screens nationwide, in plain violation of the dormant Commerce Clause,” the filing continues. 

However, the new complaint “omits The Times’ unsubstantiated prediction that Microsoft and OpenAI’s tools will somehow destroy independent journalism—evidently a talking point these Plaintiffs do not believe they can substantiate,” the motion boasts.  

The lawsuit was filed by eight newspapers owned by Alden Global Capital’s MediaNews Group, including Mercury News, Denver Post, Orange County Register and St. Paul Pioneer-Press; Tribune Publishing’s Chicago Tribune, Orlando Sentinel and South Florida Sun Sentinel; and the New York Daily News.