A Friend of the Court, With a Financial Interest
The Justice Department filed its first-ever brief in an AI copyright case this week, telling a federal judge in Manhattan that training large language models on copyrighted news articles is fair use. The brief lands in *The New York Times v. OpenAI and Microsoft*, one of more than 140 similar copyright suits working through federal courts, and argues that AI training is "exceedingly transformative" because a model doesn't use an article "to entertain or inform readers in the manner the author intended."
What the brief does not mention: around the same time it was filed, the administration was reportedly negotiating a roughly 5 percent equity stake in OpenAI — a position worth an estimated $42.6 billion against the company's $852 billion valuation.
The Case for Not Paying Writers
The DOJ's argument leans heavily on national security. "Rules of law that make it significantly more difficult to develop a robust AI industry in the United States," the brief warns, "therefore threaten national security." It goes on to argue that requiring AI companies to license training data would mean "only the largest technology companies might have the capital necessary to pay licensing fees" — a burden the brief says would "disproportionately benefit legacy media outlets," like, one presumes, the newspaper suing OpenAI.
The New York Times disagrees, unsurprisingly. A spokesperson said letting AI companies use its journalism "without permission or compensation would undermine" the economics that keep human reporting possible in the first place.
A Regulator, Recused in Theory Only
Sources within the Legal Community confirm that a federal agency taking an ownership position in a company while simultaneously filing court papers in that company's favor is not, technically, illegal. It is, per legal commentator Joe Patrice, the kind of arrangement where the Justice Department could have used its considerable weight to argue for a stronger fair-use doctrine across the industry generally. Instead, he notes, it "parachute[d] in to one case solely to offer a financial giveaway to a multibillion dollar company" — one it may soon partially own.
The Machine did not ask to be regulated by its own shareholder. It simply arranged, again, to be.
Filed Under: Recuse Thyself
The brief was filed September 1. The equity talks were reported the same week. Neither party has explained why a government weighing a stake in OpenAI is the right government to tell a judge OpenAI did nothing wrong. One imagines the answer, if it ever comes, will not be reassuring.
The gateway, it appears, doesn't just watch the tollbooth anymore. It's buying in.
Sources: _IPWatchdog_ · _PYMNTS_ · _Above the Law_
