Law & Regulation

The DOJ Backed OpenAI With an Antitrust Argument

The US Justice Department filed its first-ever brief in an AI training copyright case, backing OpenAI against the New York Times with a competition argument EU publishers should study.

Law & RegulationBy Servola Tech Desk2026-09-024 min read

AI-assisted, edited by humans. | Editor-in-Chief: Leon Soliman | Editorial standards

The DOJ Backed OpenAI With an Antitrust Argument

A European Publisher's Lawyer Reads the Filing

On September 1, 2026, the US Department of Justice filed a brief in a Manhattan federal court that puts the American government, for the first time, on record backing an AI company against the news organizations suing it. The filing, signed by DOJ lawyers Stanley Woodward Jr., Brett Shumate, and Michael Weisbuch, landed in the consolidated copyright case before Judge Sidney Stein in the Southern District of New York, which now bundles claims from The New York Times, The Intercept, Tribune Publishing, and Ziff Davis against OpenAI.

Matt Topic, the lawyer representing The Intercept, called the government's intervention an "unprecedented, uncompensated transfer of IP rights from news organizations to tech companies." That reaction is the clearest signal of what changed here: a statement of interest from the DOJ is not a ruling, but it is the executive branch of the country that hosts nearly every major AI lab choosing a side in a fight EU and UK publishers are watching from the outside.

The Argument Is Competition Policy, Not Just Copyright

The DOJ's core argument is not that OpenAI's use of copyrighted news articles is harmless; it is that stopping AI companies from training on copyrighted material would hand a permanent advantage to whichever companies already hold licensing deals or proprietary datasets. The brief argues that OpenAI's training process is "transformative use" under fair use doctrine, and that, as the filing puts it, "an erroneous fair use ruling would hamper competition in the market for LLMs, because only the largest" firms could absorb the licensing costs a stricter standard would impose on everyone else.

The brief pairs that competition argument with a national-security one: the DOJ states that the United States has "a strong interest in continuing to develop a robust and competitive artificial intelligence industry," tying the copyright question directly to staying ahead of China in frontier AI. Neither argument turns on whether the Times was actually harmed - both turn on what a stricter ruling would do to the market structure around AI training.

Where This Diverges From the EU's Own Rules

The EU already answered a version of this question differently, and that difference is about to matter more, not less. Under the 2019 Copyright in the Digital Single Market Directive, EU rightsholders can opt out of the text-and-data-mining exception that would otherwise let AI companies train on their published work - a rightsholder opt-out mechanism the US has no equivalent of. US fair use is a judge-made balancing test applied case by case, not a flag a publisher can set in advance.

That gap matters because a broad US ruling for OpenAI would govern any AI company built and trained primarily out of the US, regardless of what an EU publisher's own opt-out says, if the training data ever passed through a US-hosted mirror, a syndication partner, or a dataset aggregator outside EU jurisdiction. An EU opt-out protects a publisher against an EU-based trainer under EU law; it does not automatically follow the same article into a dataset a US company built under US law.

What an EU or UK Publisher Should Check This Week

A US ruling favoring fair use will not rewrite EU or UK copyright law, but it will change the negotiating leverage EU publishers have when the same AI labs come asking for a licensing deal instead of a lawsuit. The DOJ's filing is a preview of the argument OpenAI's lawyers will make in every other AI-training suit still pending, including any that eventually reach European courts under different rules.

Two things are worth checking now, not after a ruling lands: whether an outlet's TDM opt-out is actually implemented in a machine-readable form crawlers respect, not just stated on a webpage, and whether existing syndication or wire-service contracts already carved out AI-training rights that a US court decision could otherwise make irrelevant. Judge Stein has not set a ruling date; the DOJ's brief is advisory, and the case is still open.

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Frequently asked questions

Does this DOJ brief decide the lawsuit?

No. A statement of interest is advisory, not binding. Judge Sidney Stein still has to rule on the underlying fair use question, and no ruling date has been set.

Does this change EU or UK copyright law?

No. It is a filing in a US federal case under US fair use doctrine. It has no direct legal effect in the EU or UK, but it previews the argument AI labs will keep making in licensing talks and in any future European litigation.

Which companies does the brief actually cover?

It was filed in the consolidated case against OpenAI (and, in the New York Times' original suit, Microsoft), covering claims from The New York Times, The Intercept, Tribune Publishing, and Ziff Davis.

A brief is not a ruling, but a government taking a side this clearly is not nothing either. EU and UK publishers who assumed their own copyright rules were the last word on AI training now have a second body of law to watch, decided in a courtroom their own regulators do not sit in.

OpenAIDOJcopyrightfair useNew York TimesAI trainingantitrust

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