After OpenAI filed a motion for judgment on the pleadings that the New York Times could not meet the intent standard for contributory infringement set forth by the Supreme Court in Cox Communications v. Sony Music Entertainment, we wrote: “OpenAI’s brief seems quite strong in its explanation of the Supreme Court’s decision in Cox.“
The New York Times agreed. In its response to OpenAI, the New York Time has abandoned completely its contributory infringement claim against OpenAI. Although it has also sought leave to file a Third Amended Complaint, the proposed complaint does not include any contributory infringement claim against OpenAI.
Instead, it asserts that Microsoft engaged in contributory infringement: “Microsoft built this platform exclusively for OpenAI and designed it specifically to train OpenAI’s models. Microsoft provided this service to facilitate OpenAI’s copyright infringement by providing it with access to copyrighted works—and curated its platform to disproportionately feature The Times’s works—to train OpenAI’s LLMs.”
None of this is surprising. In the various lawsuits against AI companies that included a claim of contributory infringement, plaintiffs typically relied on allegations of knowledge and material contribution — the standard that the Supreme Court rejected in Cox. Intent is required. And, in the Concord Music v. Anthropic, Concord Music already dropped its secondary liability claims against Anthropic. And other lawsuits involving contributory infringement are likely to follow suit — or risk reversal on appeal if the wrong pre-Cox standard is applied.
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DOWNLOAD THE NEW YORK TIMES BRIEF AND REDLINED PROPOSED THIRD AMENDED COMPLAINT