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“12 angry monkeys”: The New York Times v. Open AI

This one is long so get comfortable. Or, TL;DR… The New York Times will win nothing in its suit against OpenAI. The case will, however, shape the U.S. national conversation for decades to come about creation. Charles Benaiah unpicks the ramifications of a watershed legal battle.

The New York Times sued OpenAI for copyright. Which, of course, is a total crock. They don’t create original things; they report on original things. OpenAI published an open letter on its website about how it helps publishers. Which, of course, is a total crock. They don’t help publishers. The talented, Mark Stenberg, critiqued it. This photocopy of a photocopy of a photocopy is getting pretty blurry. So, I stand by my original take on the irrelevant case. The rest of the story if far more interesting.

Let’s start here:

Media is a systemically derivative business

I say this neither as a lawyer nor a theologian but as a media guy. Why risk doing something new that may not work, when it’s easier and less risky to do something that did work? If there’s a hit movie. Copy it. Hit show. Dupe it. A sound that resonates. Clone it. Marketing that works. Books. Art. Apps. All of it.

That’s why we get Mission Impossible 43 which looks like Bourne 29 which feels just like James Bond 61. We get reboots of any show our parents watched. We get bands that sound like every other band. We get colorized soup cans. We get reposts of some some dead guy’s quasi-famous quotes repurposed with a marginally ironic twist.

We know that things that nudge the goalposts imperceptibly aren’t original. They’re copies. The courts don’t agree with us. They call it transformative.

A couple of years ago, the Supreme Court decided the decade-long, very complex case of Google v. Oracle. At issue was nine lines of code. Google hired the guy who wrote the code. That guy yanked the lines from an old file and put them in Google’s code repository.

There was no question that he copied them. He said so. Just like Scopes said he taught Darwinism. Final score: Google 6; Oracle 2.

That Google won shows you how far the courts have come. In 1925, an admission of guilt was an open-and-shut loss. Today, it’s a highly nuanced win. The Court (um) reasoned thus, “Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material.”

Someone’s original code with copyright language is just some poultry you pick off a carcass to make your turkey sandwich on Black Friday. Which makes copyright language, “Bunk.”

That’s the word the Nebraska Law Review used to describe the NFL’s copyright language: “Bunk.” That’s why, we can all ignore the league’s warning, “Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

Creation happened on the field. It’s there for all to see. The NYT’s sports arm, The Athletic, violates the NFL’s copyright every time one of their reporters writes an account of the game. Justice Breyer gave them and all of us a free pass, “The copied lines are inherently bound together with uncopyrightable ideas … and the creation of new creative expression.” If I said that, you’d say it’s worse than bunk. That he said it, codifies it as precedent.

But in allowing the NYT carte blanche, Breyer also diminishes the NYT’s case. Their work is not even original. Just a new creative expression. If the NYT can freely take original work, certainly, anyone can copy (their) transformational work.

The court explained why they allowed it, “Much of the copied lines’ value came from developers being invested in the ecosystem, rather than the actual operations of the program.” Which is what media, especially news media, is: a derivative ecosystem. Pick any event. Find the first about it. It’s easy. It’s the one the reporter tweeted with the word, “SCOOP.” All the next stories derive from that start point.

So, maybe it’s not the idea that the NYT can protect, it’s the way they present it.

Google 6; Oracle 2.

The Googles won 6-2.

In a crushing defeat to copyright law, Oracle lost 6-2 to Google.

Matter the order of words does? No, I didn’t have a stroke. I’m not channeling my inner Yoda. In Google v. Oracle the court held, you can’t copyright the order of keys on a typewriter. “My God, if you let somebody have a copyright on QWERTY, they would control all typewriters, which really has nothing to do with copyright.” So, it follows that you can’t copyright the order of words on a page.

Derivation underpins media. Peter Moreira told me that. I copy you. You copied someone else. We’re people. We move at human speed. Maybe the limit is not being able to copy things at scale and at speed? Well…

The Patent Office has a term, “101.” To get a patent you have to show that you are not using a machine to do something people can do. There has to be something original to novelty. And, there’s that word again, “Original.”

The NYT won’t win anything meaningful from this case. They can’t. News organizations don’t create original work. They describe original things. Their words are transformative but not protectable. The order of the words and thoughts is uncopyrightable. Machines have the same rights as people (future story: East India Company and corporate rights).

And, here, by won’t win anything, I mean that this case will disappoint The New York Times. In the same way that the case between Epic Games and The App Store ended badly for Epic. Apple didn’t lose. But, Epic didn’t win. And, the Supreme Court refused to hear Epic’s appeal.

So, what is this trial really about? Is it about fair use? Or, the New York Times wanting to be paid for the content they create? Is it about The Times losing traffic as people read derivative stories elsewhere? Yes. It is all of it’s about all of those things. The New York Times suit and OpenAI’s open letter rebuttal are banal grist to feed media mills for the next few cycles.

This is about so much more. This is a trial about creation. What does it mean to create media? What is original content? Where do ideas start? Who — or what — created it? Can it be protected? And, what does transformational mean in an AI era? We’re just about to start having some big discussions about creativity. And, most of us — I fear — will be disappointed that we’re a lot less creative than we believed.

How’s that for scope?

Any other use of my foregoing ideas, the order in which I’ve laid them out, or use of the pictures, descriptions, or accounts of this post without my express written consent is entirely OK. I have no choice. Plus, you’re transforming them as an expression of your creative expression. And, that’s the systemically derivative ecosystem we all create together.

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*Ironically the Baltimore Sun is in the news for not being as progressive as it once was.


Charles Benaiah is the CEO of Watzan, a techy company for medical media. When he’s not running a media company, he reads about media, thinks about it, pull out what’s left of his hair dealing with it, and, then, he writes about it over on unCharles. Charles is a member of Media Makers Meet – Mx3 Collectif.