This is a good question, and I suspect the answer is some of both, but the lawsuit is very specifically claiming that ChatGPT is “memorizing” and reproducing NY

This is a good question, and I suspect the answer is some of both, but the lawsuit is very specifically claiming that ChatGPT is “memorizing” and reproducing NYT articles verbatim, and this is clearly in violation of the law. I suspect they’re also trying to push on the issue of it being illegal to train AI on the NYT archive, but that’s a bigger and more difficult question. The issue of verbatim reproduction makes a clear legal case, which is why they’re relying on that first, and letting that lead to the broader discussion. Exhibit J in the suit is titled: “One hundred examples of GPT-4 memorizing content from the New York Times”.