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OpenAI opposes the news publishers' summary-judgment motion, saying pretraining on articles was transformative and its expert found 24 verbatim outputs in 20 million chats
In a 37-page brief filed Oct. 23, 2026 (public redacted version at Dkt. 2207; the full brief is under seal at Dkt. 2216), OpenAI opposes the News plaintiffs' motion for partial summary judgment, which covers only training. OpenAI argues the publishers mix up pretraining with its separate web-browsing feature, which is what lets ChatGPT discuss current news, and says pretraining was transformative under Kadrey and Bartz and distinguishable from the Third Circuit's ROSS ruling. It says its expert found 24 instances of verbatim reproduction in a sample of 20 million ChatGPT conversations, and that the publishers' own experts found similarly tiny rates. On data collection, it says it used Common Crawl data subject to Common Crawl's own robots.txt policy, applied a blocklist to filter the publishers' domains, did not bypass paywalls, and did not fine-tune GPT-3 on the New York Times Annotated Corpus. It also disputes ownership and registration of millions of articles, the DMCA claim, and per-article statutory damages. These are OpenAI's arguments; the court has not ruled.
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