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, is taking ChatGPT maker OpenAI to federal court on Tuesday in a hearing that could determine whether the tech company has to face the publishers in a high-profile copyright infringement trial.

Three publishers' lawsuits against OpenAI and its financial backer Microsoft have been merged into one case. Leading each of the three combined cases are the 

 and the Center for Investigative Reporting.

The hearing on Tuesday is centered on OpenAI's motion to dismiss, a critical stage in the case in which a judge will either clear the litigation to proceed to trial or toss it.

The publishers' core argument is that the data that powers ChatGPT has included millions of copyrighted works from the news organizations, articles that the publications argue were used without consent or payment — something the publishers say amounts to copyright infringement on a massive scale.

"[OpenAI's] unlawful use of The Times's work to create artificial intelligence products that compete with it threatens The Times's ability to provide that service," the newspaper's attorneys wrote in an amended complaint filed in August 2023. "Using the valuable intellectual property of others in these ways without paying for it has been extremely lucrative for [OpenAI]."

OpenAI has argued that the vast amount of data used to train its artificial intelligence bot has been protected by "fair use" rules. That is a doctrine in American law that allows copyrighted material to be used for things like educational, research or commentary purposes.

In order to clear the fair use test, the work in question has to have transformed the copyrighted work into something new, and the new work cannot compete with the original in the same marketplace, among other factors.

Writing in a motion to dismiss, lawyers for Microsoft, OpenAI's largest investor, wrote that it was not illegal for OpenAI to ingest that journalistic text.

"In this case, The New York Times uses its might and its megaphone to challenge the latest profound technological advance: the Large Language Model, or LLM," lawyers for Microsoft wrote in the court filing, describing the technology that underpins ChatGPT. "Despite The Times's contentions, copyright law is no more an obstacle to the LLM than it was to the VCR (or the player piano, copy machine, personal computer, internet, or search engine)."

Other publishers, like the Associated Press, News Corp. and Vox Media, have reached content-sharing deals with OpenAI, but the three litigants in this case are taking the opposite path: going on the offensive.

The news organizations argue that not only has ChatGPT's global success hinged in part on vacuuming up troves of copyrighted articles, but that ChatGPT is now effectively a competitor as a source of reliable information.

, OpenAI should be on the hook for billions of dollars in damages over illegally copying and using the newspaper's archive. The lawsuit also calls for the destruction of ChatGPT's dataset.

That would be a drastic outcome. If the publishers win the case, and a federal judge orders the dataset destroyed, it could completely upend the company, since it would force OpenAI to re-create its dataset relying only on works it has been authorized to use.

Federal copyright law also carries stiff financial penalties, with violators facing fines of up to $150,000 for each infringement "committed willfully."

"If you're copying millions of works, you can see how that becomes a number that becomes potentially fatal for a company," Daniel Gervais, the co-director of the intellectual property program at Vanderbilt University who studies generative AI, 

. "Copyright law is a sword that's going to hang over the heads of AI companies for several years unless they figure out how to negotiate a solution."

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Bobby Allyn

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In three consolidated suits, publishers allege that OpenAI broke copyright law by copying millions of articles without permission or payment. OpenAI counters that the fair use doctrine protects them.

The New York Times takes OpenAI to court. ChatGPT’s future could be on the line

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