Back in December, The New York Times filed a lawsuit against OpenAI over use of its content. Perplexity AI got a different treatment over their use.

As discussed in TechTarget (The NYT’s cease and desist move against Perplexity AI, written by Esther Ajao and available here), Perplexity AI has two weeks to respond to a cease-and-desist letter from The Times.

In the letter, The Times accuses the generative AI search vendor of accessing and using its content without authorization to create content such as summaries and other outputs that infringe on copyright laws, according to multiple media outlets.

Of course, Perplexity AI got a different treatment over their stated use of their content than OpenAI and Microsoft did when the Times sued them back in December 2023.

The suit against OpenAI has yet to conclude, so The Times is taking a different approach this time, said Sarah Kreps, John L. Wetherill professor of government and law at Cornell University.

“Cease and desist approaches are less confrontational, less expensive and faster,” Kreps said. “[There is] more of an opportunity for negotiation than a lawsuit, which seems preferable given the circumstances of novel technology with unwritten interpretations of copyright laws.”

The cease-and-desist letter is also a smart move by The Times, Northeastern University director of education curriculum and business lead for responsible AI Michael Bennett said.

While the current lawsuit against OpenAI is in open litigation, if The New York Times wins, it could force AI vendors like Perplexity to negotiate a contractually bound financial arrangement, Bennett said.

The Times is not the only publisher that has called out the AI startup for scraping content online.

In June, Forbes threatened legal action against Perplexity, accusing the startup of willful infringement by stealing text and images.

After that move, Perplexity introduced the highly alliterative Perplexity Publishers’ Program (say that three times fast!). 😀

Through the program, Perplexity partners with publishers such as Time, Fortune, Entrepreneur, The Texas Tribune and WordPress.com. Publishers can earn revenue when their work is referenced.

On Perplexity’s side, the AI startup has responded to The Times’ claims by arguing that facts can’t be copyrighted.

The vendor said in a statement, “We aren’t scraping data for building foundation models, but rather indexing web pages and surfacing factual content as citations to inform responses when a user asks a question. The law recognizes that no one organization owns the copyright over facts. This is what allows us to have a rich and open information ecosystem, not to mention, it gives news organizations the ability to report on topics that were previously covered by another news outlet.”

Fair point, which may lead to another “fair” term: “fair use”, which is the doctrine that use of some copyrighted work is allowed under freedom of expression. It certainly doesn’t sound as though there is anything perplexing about whether Perplexity plans to change anything they’re doing, based on the cease-and-desist letter. If not, it will be interesting to see if The Times takes the same step that it did with OpenAI and Microsoft, or wait until that case plays out.

So, what do you think? Are you surprised that Perplexity AI got a different treatment over their use of content from The Times than OpenAI and Microsoft did? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.