Amicus Brief: OpenAI and Microsoft Cannot Use Copyright Infringement as a Competitive Advantage
WASHINGTON, D.C. — The Open Markets Institute today filed an amicus brief in federal court arguing that OpenAI and Microsoft are violating copyright law to gain an unfair competitive advantage over news publishers and rival AI developers.
Filed in support of news publishers suing the tech giants, the brief argues that OpenAI and Microsoft are taking copyrighted reporting without permission and using it to compete directly against the publishers that produced it. By delivering that reporting to chatbot users, the companies divert the traffic, subscriptions, and advertising revenue that sustain journalism.
Open Markets argues that the companies cannot hide behind a “fair use” defense when their products substitute for original reporting and undermine the market.
The brief also cites Microsoft's own acknowledgment that its AI content strategy has created a “doom loop” threatening the economic foundations of the publishers and creators whose work powers its products.
“If OpenAI and Microsoft can take copyrighted material without paying for it, every competitor has an incentive to do the same,” said Sandeep Vaheesan, Open Markets Institute legal director. “That's a race to the bottom that rewards lawbreaking, undermines journalism, and threatens the development of a fair and competitive AI market. Copyright law cannot become optional simply because the companies breaking it are powerful.”
The brief warns that unchecked copyright infringement could also destroy the emerging market for AI content licensing. Developers that pay publishers for their work face higher costs than competitors that take it for free, potentially forcing law-abiding companies out of business or pressuring them to abandon licensing altogether.
Challenging the Justice Department's position on AI content licensing, the brief points to evidence that AI developers of all sizes are already negotiating agreements to use copyrighted works, including pay-per-use and pay-per-access arrangements. It draws on research from Open Markets' Center for Media and Digital Governance, including Same Gatekeepers, New Tollbooths: Mapping the AI Content Licensing Market, by Dr. Courtney Radsch and Karina Montoya.
“AI companies want the benefits of journalism without paying the costs of producing it,” said Dr. Courtney Radsch, Director of the Center for Media and Digital Governance at Open Markets Institute. “But reporting isn't free. Someone must investigate corruption, cover local government, and hold powerful institutions accountable. If AI companies can take that work and divert the revenue that supports it, the public will ultimately pay the price through less independent journalism and less accountability.”
The brief urges the court to grant the publishers' motion for summary judgment and deny OpenAI and Microsoft's motion, rejecting their fair-use defense for the challenged conduct.
Open Markets Institute thanks Nick Migliaccio and Bryan Faubus of Migliaccio & Rathod LLP for their assistance as local counsel in filing the brief.
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