A Sept. 17 summary judgment brief from news publishers suing OpenAI and Microsoft quotes an OpenAI software engineer writing in February 2023: "no matter how prominently we show the links, users won't click."

The New York Times, one of the plaintiffs, reported the engineer's message. The same filing quotes Nick Turley, OpenAI's head of ChatGPT, saying there was "no good reason to click" a link to the original source once ChatGPT answered a question through its browse function.

Both quotes come from the publishers' combined brief in the consolidated copyright case in federal court in New York. The brief represents one side's argument; the court has not ruled on it.

The CTR numbers

The filing cites Microsoft data comparing click-through rates for the publishers' sites in Bing Chat and Bing Web Search. For The Times's websites, CTR ran 87% to 93% lower in Bing Chat. Daily News plaintiffs' sites saw drops of 83% to 91%, and Ziff Davis sites fell 51% to 94%.

The brief defines CTR as clicks to a URL relative to its impressions — appearances in a search results page or a chatbot response. The ranges don't measure traffic or visits.

Publishers argue the reductions "clearly show substitution," adding they need not prove harm with data because "common sense suffices."

The passage leaves gaps. It doesn't say when Microsoft collected the data, how many queries, impressions or clicks it covered, or how the data was selected. It doesn't explain what the low and high ends of each range represent. Microsoft renamed Bing Chat to Copilot in November 2023, but the product name doesn't date the data, and nothing ties the figures to the current Copilot.

The defense position

OpenAI and Microsoft argue their use of news content is fair use. Both filed summary judgment motions on Sept. 4. Axios reported OpenAI's motion cited studies suggesting ChatGPT outputs don't create commercial substitutes for The Times's work, and Microsoft made similar claims about Copilot.

A Microsoft spokesperson told TheWrap the company's court filings explain "why Copilot is not a substitute for publishers' journalism." OpenAI didn't immediately respond to a request for comment.

Why the numbers matter for search

Being cited and being clicked are different measurements. Microsoft's AI Performance report in Bing Webmaster Tools counts citations, and its help page says citation metrics differ from traditional search metrics measuring rankings, clicks and traffic. When Microsoft added Citation Share in June, it said the metric doesn't represent traffic share. Google's Search Console generative AI report shows impressions but doesn't list clicks.

The Microsoft data in the filing covers the step after a link appears — how often links to three publisher groups' sites got clicked in Bing Chat answers versus Bing search results. When Microsoft added chat data to the Webmaster Tools Performance report in 2023, it combined web and chat clicks and impressions. The CTR figures in the filing separate chat from search.

What comes next

Judge Sidney H. Stein's Sept. 24 order set Oct. 23 for oppositions, Oct. 30 for amicus briefs and Nov. 20 for replies. Watch whether OpenAI and Microsoft address the engineer quote, Turley's comment or the CTR data in their Oct. 23 filings, and whether later filings add context for the messages or explain how Microsoft measured CTR.