DOJ backs OpenAI/Microsoft fair-use defense in NYT copyright suit: train-on-copyrighted-work "in and of itself" not infringement

What happened

On September 1, 2026, the U.S. Department of Justice filed a formal "statement of interest" in the consolidated copyright litigation against OpenAI and Microsoft in the Southern District of New York (In re OpenAI, Inc. Copyright Infringement Litigation, MDL No. 25-md-3143, before Judge Sidney H. Stein), which encompasses The New York Times' December 2023 suit and the other publisher/author suits consolidated with it. The 20-page brief argues that training large language models on copyrighted material "in and of itself" does not violate copyright law and should be treated as transformative fair use. It calls the Times' position "inconsistent with basic copyright law principles" and says barring training on copyrighted works could "severely hamper 'the Progress of Science and useful Arts.'" The statement of interest is not binding on the court.

Why it matters to creators

This is the first time the federal government has formally weighed in on the wave of AI-training copyright suits brought by authors, publishers, and news outlets. The DOJ's position effectively tells writers, journalists, and other creators that compensation for training-data use must be won from Congress or at the licensing table, not from judges applying fair use doctrine. The Times' spokesperson Graham James criticized the move, saying the DOJ was siding with "trillion-dollar AI companies" over American creators.

What is not yet known

How Judge Stein will rule on the competing summary judgment motions filed September 4; whether Congress will take up any compulsory-licensing regime for AI training data; whether the DOJ's brief influences other pending AI copyright cases.