Disney’s investment in OpenAI, reported at around a billion dollars, has been discussed mostly as a content deal. Legal scholars looking at it have raised a different concern, and it deserves more attention than the headline number. The worry is enclosure. When the largest content owners sign exclusive or near-exclusive arrangements with the largest AI companies, the effect isn’t just a transfer of money. It removes material from the pool available to everyone else and raises the entry price for anyone trying to build a competing system.

The New York Times sued OpenAI and Microsoft in December 2023, alleging that millions of its articles were used without permission to train generative models. The case survived motions to dismiss and moved into discovery, and in January a judge affirmed an order compelling OpenAI to produce a sample of twenty million ChatGPT user conversations. The copyright question is what everyone is watching. The discovery order is what will matter longest.