With president of America’s News/Media Alliance Danielle Coffey describing it as “existential for the news media industry”, the group has filed an amicus brief in publishers’ litigation against OpenAI and Microsoft.

N/MA is joined in their support of more than a dozen news publishers’ multi-district litigation brief by cosigners National Newspaper Association, the National Press Photographers Association, and ProPublica, with the suits now in the “summary judgment” phase. This allows key questions of infringement and fair use to be resolved, in what is said to be the first time a US court has decided summary judgment on OpenAI’s actions or questions around real-time use of news content.

Says Coffey (pictured): “If OpenAI and Microsoft get their way, their desired weakening of copyright law would ultimately deprive millions of Americans of critical news about their country and their communities.

“Since the country’s beginning, the United States has recognised the ability to protect one’s work through copyright. We hope the court will see OpenAI and Microsoft’s fair use claims – for clearly substitutional and competitive products – as the sham they are, and will rule in accordance with our country’s long and distinguished history of protecting intellectual property.”

News/Media Alliance makes the case that news publishers depend on copyright law to protect original news content and support journalists, and that eroding copyright protections would harm the public interest by driving publishers out of business and weakening the free press. “The only way publishers can afford to continue creating news content is by leveraging control over their content to earn revenue, whether with ads, subscriptions, or licensing. But OpenAI and Microsoft’s unauthorised use of news content directly undermines publishers’ ability to fund their work,” it says.

“ChatGPT has substantially decreased the number of visitors to news sites, with research showing that ChatGPT sends 96 per cent less referral traffic to publishers than traditional Google search. This lowers both ad and subscription revenue for news publishers, and OpenAI’s constant theft of publisher content undermines the health of the rapidly-growing market for AI content licensing.”

The brief also argues that OpenAI and Microsoft’s uses of news content is highly substitutive for news publishing, and insufficiently transformative to support fair use claims. ChatGPT provides clearly substitutional answers – either summaries or verbatim copies – that remove the need to visit original publisher sites. Studies show that when individuals start using AI chatbots, their use of traditional search engines and their exposure to online ads drops significantly, a clear sign that AI chatbots directly compete with news sites for readers.