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Some authors are suing OpenAI. Will it backfire?

AILSA CHANG, HOST:

To train artificial intelligence software, like OpenAI's ChatGPT, companies have to feed their programs vast amounts of text, some of which might be protected by copyright. Keith Romer from our Planet Money podcast has the story of how a copyright lawsuit against OpenAI might actually help solve a big problem for the company.

KEITH ROMER, BYLINE: Douglas Preston got his big break as a writer when he and his co-author, Lincoln Child, published their first novel, "Relic," in 1995.

DOUGLAS PRESTON: "Relic" is about a brain-eating monster loose in a museum, hunting down and killing people and eating part of their brains. So you will not see my name on the list of Nobel laureates, that's for sure.

ROMER: A while back, Preston started playing around with ChatGPT and learning how much it knew about his books. Turns out - a lot.

PRESTON: It was regurgitating everything. It knew my characters. It knew their names. It knew the settings. It knew everything.

ROMER: But no one from OpenAI had asked his permission to train their AI on his copyrighted books. So in September, Preston got together with authors like George R.R. Martin, Jodi Picoult, Jonathan Franzen, and filed a lawsuit against OpenAI, a class action on behalf of thousands of writers alleging copyright infringement on an industrial scale. OpenAI declined to comment for this story, but in court filings, the company argues that what it did was legally permissible under copyright law. Now, normally, you might think getting sued like this would be bad news for OpenAI. But some legal scholars told me, actually, there could be a hidden benefit for the company. They said, consider what happened with Spotify back in 2015. Full disclosure - Spotify is a corporate sponsor of NPR. Back then, Spotify had reached licensing deals with about 90% of rights-holders for songs it streamed.

XIYIN TANG: But there's that 10% that's just, you know, unlocatable. You can't contact them. You don't know who they are.

ROMER: That is UCLA law professor Xiyin Tang, who helped represent Spotify at the time. She says that even though Spotify didn't have licenses for that last 10% of songs, the company had streamed them anyway. And then they got sued. Two songwriters joined forces in a class action on behalf of all the songwriters Spotify hadn't reached deals with, which Tang says was kind of great news for Spotify.

TANG: I'm definitely not speaking for Spotify here when I say it's almost a blessing. But it does almost feel like a relief to be able to say, oh, now we have this class that's established with all these people in it. Let's pay some amount of money that's not going to bankrupt the business and allow us to say, hey; we're actually paying all these people now, whereas the allegation was that we weren't before, and we can keep operating.

ROMER: Tang says these giant class actions on behalf of thousands of plaintiffs can help solve a very real problem for the tech companies being sued.

And the class action essentially gave them somebody to negotiate with.

TANG: Yeah, exactly. We didn't know who to even go out to and talk to about this. And now these people are popping up out of the woodwork.

ROMER: Spotify ended up settling that lawsuit with all those songwriters, essentially agreeing on a price to license the rights they hadn't managed to acquire before. Tang thinks a similar thing might happen with the authors' case against OpenAI. Because of the class action, OpenAI now has a group it can negotiate with. Keith Romer, NPR News. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Keith Romer
Keith Romer has been a contributing reporter for Planet Money since 2015. He has reported stories on risk-pooling among poker players, whether it's legal to write a spin-off of the children's book Goodnight Moon and the time one man cornered the American market in onions. Sometimes on the show, he sings.