Foundation for American Innovation files proposed amicus brief backing OpenAI in copyright MDL

FAI files proposed brief for OpenAI

The Foundation for American Innovation filed a proposed amicus brief supporting OpenAI in In re OpenAI Copyright Infringement Litigation, the group said. General counsel and senior fellow Tim Hwang filed it with help from research fellow Sam Roland. The brief asks the court to consider public benefits that copying enables under Google LLC v. Oracle America, not only lost licensing revenue.

The filing points to government use of commercial frontier models for intelligence analysis, cyber defense, operational planning and decision support. It argues that requiring permission for the challenged training 'could impair those benefits if it materially restricts access to useful training data.' Removing useful sources, it says, can reduce capabilities used by downstream systems, 'which could include the national security systems the Government acquires and adapts.'

The brief links copying a newspaper article to national-security capabilities through training. 'During pretraining, models identify shared patterns across a broad corpus of information,' it says, and learning those patterns helps develop language, synthesis, translation, coding and reasoning capabilities. Under Oracle, the brief argues, those public benefits belong in the fourth fair use factor alongside market harm.

Case background

The New York Times sued OpenAI and Microsoft in December 2023. Its case is part of the consolidated In re OpenAI Copyright Infringement Litigation before Judge Sidney Stein in the Southern District of New York, which combines 16 copyright lawsuits. In early September, the Times and the AI companies filed cross motions for summary judgment, asking Stein to rule before trial.

Microsoft wrote in its motion that copyright law exists to grow society's common intellectual wealth, not to lock in entrenched business models. OpenAI wrote that nobody owns facts, just as nobody owns language, grammar, or style.

The Justice Department filed a statement of interest on Sept. 1, 2026. It said training on copyrighted material is not in itself infringement and that rules making it significantly harder to develop the AI industry in the United States threaten national security and give a competitive advantage to foreign adversaries. The filing carries no binding authority over Stein. Graham James, a spokesman for the Times, said the government was siding with a handful of 'trillion-dollar A.I. companies' at the expense of American creators.

What the brief means for the case

The FAI brief also invokes national security, as the Justice Department did in its statement of interest. But it is a proposed amicus filing, not a party brief. Stein will weigh it alongside the parties' evidence and arguments as he rules on the summary judgment motions. The Justice Department's statement of interest carries no binding authority, and the court may give it whatever weight it sees fit.