ChatGPT creator OpenAI has said the lawsuit filed by the New York Times (NYT) on 27 December accusing it of copyright infringement is “without merit”.

The lawsuit, filed at a Manhattan district court, accuses OpenAI and Microsoft of copying and using millions of NYT copyrighted articles, to train automated chatbots that now compete with the NYT as a news source.

In a blog on 8 January, OpenAI said NYT was “not telling the full story”.

It says that its discussions with the NYT had appeared to be “progressing constructively” through its last communication on 19 December. It learned of the lawsuit being filed only be reading the NYT which came as a “surprise and disappointment”.

Along the way, OpenAI adds, the NYT had mentioned seeing some “regurgitation” of its content but “repeatedly refused to share any examples, despite our commitment to investigate and fix any issues”.

It maintains that regurgitations appear to be from “years old” articles that have appeared on other websites already.

Training AI models using publicly available internet materials is “fair use”, OpenAI maintains, and is supported by long-standing and widely accepted precedents. It adds that “legal right” is less important to it than being “good citizens” and because of this it provides an opt out process for publishers, which the NYT adopted in August 2023 to prevent its tools from accessing their sites.

Microsoft is listed as a co-defendant, with the NYT claiming their businesses are “deeply intertwined” and that through Microsoft’s Bing Chat (recently rebranded as Copilot) and OpenAI’s ChatGPT, the defendants sought to “free-ride on The Times’s massive investment in its journalism by using it to build substitutive products without permission or payment”.

It accuses the defendants of using Microsoft’s Bing search index, which “copies and categorises The Times’s online content, to generate responses that contain verbatim excerpts and detailed summaries of Times articles that are significantly longer and more detailed than those returned by traditional search engines”.

OpenAI insists that it collaborates with news organisations and is creating new opportunities. Its early partnerships with the Associated Press, Axel Springer, American Journalism project and NYU are provided as examples.

It says it is hopeful for a “constructive partnership” with the New York Times, respecting “its long history”.

NYT also accuses the defendants of trademark dilution through the “unauthorised use” of its trademarks, alleging it continues to suffers harm by, among other things, “damaging its reputation for accuracy, originality, and quality”.

The lawsuit points out that OpenAI’s release of ChatGPT has driven its “valuation to as high as $90 billion”.

The NYT is not seeking specific amounts of damages, mainly statutory damages, compensatory damages, restitution and disgorgement. It is also seeking the destruction of all GPT or other large learning models and training sets that incorporate the NYT’s work.

NYT is joining a growing band of writers and performers including Sarah Silverman, John Grisham and David Baldacci who accuse OpenAI of infringing their copyright through the training of chatbots.

The newspaper says it is the first major US media organisation to sue OpenAI and Microsoft and is being represented by specialist litigation firm Susman Godfrey.