What happened?

On 2 September 2026 the US government filed a 20-page statement of interest in The New York Times' copyright lawsuit against OpenAI and Microsoft, siding with OpenAI. The paper, which sued in late 2023, alleges millions of its articles were used without permission, claims billions of dollars in damages and demands the destruction of models trained on its content.

The Justice Department's filing rests on a single distinction: training and output are not the same thing. During training entire works are copied but never made publicly available, and the outputs "often if not always" lack substantial similarity to the originals. A theory of market harm that conflates the two, the department argues, is legally wrong.

The government's reasoning

The framing is drawn less from law than from strategy. The filing says the United States has a "strong interest" in whether training on copyrighted works counts as fair use, because it bears on the country's ability to "retain global leadership in artificial intelligence." Government lawyers write that "constraining LLM development under a misunderstanding of fair use doctrine would thwart such creative and scientific progress while hindering American prosperity."

  • The filing treats training as "extraordinarily transformative" and argues the models do not meaningfully compete with the Times' articles.
  • Its analogy is a teenage Joan Didion, who typed out Hemingway's stories to learn how to write. Under the opposing logic, the department says, Didion would have been liable every time she published.
  • The arguments are not confined to this case; the government notes they apply to other publisher and author suits as well.

A filing aimed at its own agency

The most striking feature is that it goes directly after the US Copyright Office's report. That report rejected a blanket fair use finding for AI training, and its reasoning was scale: models work from perfect copies and generate content at a speed far beyond human creation. The department counters that the report carries no binding legal authority and ignores case law requiring case-by-case analysis.

Shira Perlmutter, the Register of Copyrights who produced it, was dismissed shortly after the report came out; she is currently challenging that dismissal, a fact the department notes in a footnote.

What the other side says

Times spokesperson Graham James said the administration "is siding with a handful of trillion-dollar AI companies at the expense of the countless American creators whose work they stole." Authors Guild chief executive Mary Rasenberger called the filing "replete with faulty arguments." Pamela Samuelson, a copyright scholar at Berkeley, sees it as a "significant development" and consistent with rulings so far.

Intellectual property lawyer Evan Brown notes that Judge Sidney H. Stein, who is overseeing the case, is under no obligation to let the filing influence him — but says judges will almost certainly take it "quite seriously" because it comes from the Justice Department.

The question the filing skips

The Didion analogy steps around exactly where the argument binds: scale. A single writer copying a book to learn and a multibillion-dollar company turning that content into a mass-market product are not in the same position under copyright law. That is precisely what the Copyright Office report said, and the filing routes around the objection by declaring the report unauthoritative.

There is also this: a statement of interest is not a ruling, and it comes from a body that is not a party to the case. But in a suit widely read as a bellwether, the government publicly declaring which side it is on carries weight of its own.

What's next?

The case continues in the Southern District of New York with no announced timetable for a decision. The two biggest rulings in this area came last year: Meta technically won Kadrey, while Anthropic was ordered to pay authors $1.5 billion — though there too the judge held that the training itself was fair use and tied the damages to pirated books. New suits keep arriving; last week Sony and Warner Music sued Anthropic.