• by Ray Schultz , Columnist, September 8, 2024

One of the many content-scraping cases filed against OpenAI and Microsoft Corp. may be getting bogged down in discovery. 

The New York Daily News and other Alden Global Capital properties are arguing that they have not been given all of the documents produced in the case of the The New York Times vs. OpenAI and Microsoft.

Why do they need them? Because the defendants themselves had argued that the cases filed by the New York Times and the Alden titles are “functionally identical” and should be consolidated. Everyone agreed: the only holdup appearing to be a protective order requested by the defense, and that was issued on August 20. 

But it didn’t bear fruit. The defendants instead proposed to produce some documents with different Bates numbers from The New York Times case. This would be “confusing, inefficient, and cumulative,” the plaintiffs argue.

The Daily News plaintiffs also contend that the defendants previously agreed to the cross-production of documents and that without this, “the benefits gained by coordination of The New York Times case and the Daily News case for discovery purposes will accrue only to Defendants,” attorneys for the plaintiffs wrote to Magistrate Judge Ona T. Wang of the U.S. District Court for the Southern District of New York.

Indeed, two weeks after after August 20 protective order filing, the defense “failed to produce documents from The New York Times case (or any other documents at all),” the letter alleges. 

From the outside, this looks like a possible stalling tactic. Or, maybe OpenAI and Microsoft are looking to end this case and reach the type of content-sharing agreement with one of the plaintiffs they have done with many publishers. Or it could be a simple process issue. 

Months after being served with the New York Times complaint, 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.

The suit accuses OpenAI and Microsoft of harvesting millions of copyrighted articles to create their “generative” artificial intelligence products including OpenAI’s ChatGPT and Microsoft’s Copilot, according to the Chicago Tribune.