Press Release

Book and Journal Publishers File Amicus Brief in In Re: OpenAI Copyright Infringement Litigation

Today, the Association of American Publishers (AAP), the International Association of Scientific, Technical & Medical Publishers (STM), the Independent Book Publishers Association (IBPA), and Copyright Clearance Center (CCC) jointly filed an amicus brief in support of the author, publisher, and news publisher plaintiffs in In Re: OpenAI, Inc., Copyright Infringement Litigation, pending before the United States District Court for the Southern District of New York.  The case consolidates numerous actions filed over the past three years againstOpenAI for its sweeping, unauthorized use of copyrighted works to train commercial AI models, resulting in equally sweeping harm to markets and livelihoods, and against Microsoft for its knowing participation in and support of OpenAI’s infringing conduct, including a September 2023 action by the Authors Guild, David Baldacci, John Grisham, Scott Turow, and other prominent fiction writers.  In asking the court to grant the plaintiffs’ summary judgment motion on the merits, and to deny the defendants’, the amici explain that fair use “is intended to adapt—not yield—to changes in technology.”  The court’s determination will likely be the first opinion from a New York court as to copyright and AI training.

Statement from Maria A. Pallante, AAP President and CEO, on behalf of the Amici:

“In this brief, we are pleased to share with the court the routine role of licensing in digital copyright commerce and why the failure of AI companies to pay for the works they need is an unjustified and damaging departure from the operation and integrity of the law.  It has become clear that—without any say in the matter—authors and publishers have been integral to producing Open AI’s large language models, which absent guardrails and financial participation have the power to diminish both the value of the works copied and the long-term viability of human authorship more generally. For these tech giants to argue ‘fair use’ in the face of such jolting and far-reaching conduct is to ignore the equitable basis of the legal doctrine and its fundamental concern for the public interest.”  

Excerpts from the brief:

• The Copyright Act reflects Congress’s considered determination that exclusive rights, market-based licensing, and voluntary exchange encourages the creation and dissemination of books and other works. This framework remains the same no matter how much technological innovation changes the way copyrighted works are created, distributed, or used. Using copyrighted works to train generative AI models does not warrant special treatment.

• Overly expansive interpretations of fair use displace the market mechanisms Congress established, replacing negotiated exchange with uncompensated use and transferring value from the authors and publishers that invest in them to industries that neither incurred the costs nor assumed the risks of producing the underlying works.

• The technological innovation of AI is no talisman for fair use. The fair use doctrine is intended to adapt—not yield—to changes in technology. Congress expected copyright protection to encompass unforeseen technologies, and drafted the Copyright Act with broad, technologically neutral rights and specific exceptions so that copyright owners could presumptively retain their exclusive rights even over new technological uses.

• ChatGPT has generated sequels that are substitutes for George R. R. Martin’s much-anticipated book, The Winds of Winter. ChatGPT’s substitutive character was enabled not only by training on a pirated copy of Martin’s A Song of Ice and Fire, but also by pursuing a “research mission” to develop an LLM that can “write the last two books of . . . A Song of Ice And Fire.”

• The defendants themselves have acknowledged these market dilution harms. An OpenAI researcher forewarned that it would become “impossible to tell” whether material was AI-generated given his goal to “make the most artisanal slop.” A Microsoft employee also concluded that the economic harm from LLMs included “authors . . . who were no longer able to sell their books because there are so many substitutive AI-generated books out there.”

• Here, a market for licensing copyrighted works for AI exists and is expanding to address growing demands and developing infrastructure. The list of publicly reported AI licensing arrangements is extensive, covering works of all types and AI developers of all sizes…. The AI training market for licensing for all content types was valued at $5.2 billion in 2025, with text holding the largest share of the market, and is projected to rapidly reach $55.8 billion by 2035.

• For AI to flourish, licensing is needed to ensure humans continue to be incentivized to create so that the well of human creation does not run dry and AI companies have reliable access to content that improves model performance.

• As an OpenAI researcher aptly stated: “Our AI content strategy has started a doom loop that will hurt the performance of our models and the entire web at the same time…. LLMs are useful because they replicate the patterns in the training content, which without ways of distributing economic value down the supply chain, necessarily threatens the economic sustainability of those who create the content.”

The full amicus brief can be found here.