1. In re OpenAI ChatGPT Litigation (the cases, Paul Tremblay v. OpenAI, Inc., Sarah Silverman v. OpenAI, Inc., and Chabon v. OpenAI were consolidated and recaptioned to this new moniker)
Background: Comedian Sarah Silverman and other artists filed this class action lawsuit in the Northern District of California on June 28th, 2023, asserting copyright infringement claims, in addition to unfair competition, negligence, and unjust enrichment. The plaintiffs alleged that OpenAI used their copyrighted written works to train its AI chatbot. In February, the Court dismissed most of the claims against OpenAI, rejecting plaintiffs’ argument that the content generated by ChatGPT (i.e., the “output”) infringes their copyrighted works because there is no “substantial similarity” on the “output” side of the copyright question (and, therefore, no meaningful harm). But the Court gave the plaintiffs an opportunity to amend their complaint to plead a more direct link of harm (which they later did). In July, the Court dismissed the unfair competition claim. The claim for direct infringement is the only main one that remains. The case is assigned to Judge Araceli Martinez-Olguin.
Current Status: BIG NEWS! OpenAI trying to consolidate AI copyright cases into MDL (multi-district litgation). In a move with wide-ranging implications for the future of all copyright cases pending against OpenAI, counsel for OpenAI notified the court on December 5th of its intention to seek centralization of the eight copyright and DMCA actions pending in both the Northern District of California and the Southern District of New York. The cases are: In re OpenAI ChatGPT Litigation, Millette v. OpenAI, Authors Guild v. OpenAI, New York Times v. OpenAI, Daily News v. OpenAI, The Center for Investigative Reporting, Inc. v. OpenAI, Raw Story Media v. OpenAI, and Intercept Media v. OpenAI.
If consolidated, the Court overseeing all of these cases would have enormous power to shape the future of AI and copyright law. Rather than the possibility of a dozen inconsistent fair-use rulings, there would be just one holding with a massive impact. But MDL consolidation isn’t a sure thing. OpenAI still needs to file a petition with the Judicial Panel on Multidistrict Litigation, who will then decide whether to create an MDL and where to send it. For now, OpenAI noted in its letter that it will not seek a stay of litigation and will continue participating in discovery. The next discovery hearing will be held on December 17th.
2. The New York Times v. Microsoft & OpenAI
Background: This is the most closely watched litigation involving copyright owners and generative AI tech companies.
On December 27, 2023, The New York Times sued Microsoft and OpenAI in the U.S. District Court for the Southern District of New York for copyright infringement and other related claims. The Times alleges that the companies used “millions” of its copyrighted articles to train their AI models without its consent. The Times claims this has resulted in economic harm by pulling users away from their paywalled content and impacting advertising revenue. The complaint alleges several causes of action, including copyright infringement, unfair competition, and trademark dilution. In its pleadings, The Times asserts that Microsoft and OpenAI are building a “market substitute” for its news and further that their AI generates “hallucinations” based on The Times’ articles also substantially damage its reputation and brand. The Times seeks “billions of dollars of statutory and actual damages.” Microsoft and OpenAI assert the defense of “fair use” - i.e., no license, payment or consent is needed.
On September 13, 2024, the Court granted a motion to consolidate the case with one brought by the Daily News and other publications. The judge assigned is Judge Sidney Stein.
Current Status: The New York Times will get access to OpenAI employees’ social media posts. On December 2nd, the Court ruled for the Plaintiffs in an order impacting both The NY Times consolidated cases and Authors Guild v. OpenAI. In both cases, the Plaintiffs asked the Court to compel OpenAI to produce work-related texts and social media messages sent by their employees. OpenAI agreed to produce relevant text messages but argued that a California statute which prohibits companies from asking employees about their social media accounts prevented them from producing messages sent via social media platforms. Judge Wang disagreed, holding that the California statute does not prevent companies from complying with discovery requests. The Court granted Plaintiffs’ motion to compel, so they should begin receiving relevant online messages from OpenAI’s employees soon.
3. Kadrey et al. v. Meta
Background: This case is similar to the “In re OpenAI ChatGPT Litigation” class action below against OpenAI. In this case, Kadrey, comedian Silverman, and others sued Mark Zuckerberg’s Meta on July 7, 2023 in the U.S. District Court (Northern District of California) for mass infringement - i.e., unlicensed “training” of their generative AI model on millions of copyrighted works, including their own. Not surprisingly, Meta’s defense is “fair use.” The judge assigned is Judge Vince Chhabria.
Much like the class action “In Re OpenAI ChatGPT Litigation” above, and for similar reasons, in November 2023, the Court dismissed the bulk of plaintiffs’ claims against Meta. But much like in the OpenAI case, the Court gave the plaintiffs a chance to amend their complaint to add a more direct link to actual harm (and they filed their amended complaint in December 2023).
Current Status: Plaintiffs win the ability to take third-party discovery. As we reported last week, Plaintiffs asked the court to overturn Magistrate Judge Thomas Hixson’s order, which held that several of plaintiffs’ discovery requests and third-party subpoenas were time-barred. In a motion filed November 19th, the plaintiffs argued that Judge Hixson’s order was “clearly erroneous” and contrary to the case management deadline. Additionally, they explained that if the order stands, there will not be a proper record for trial.
Judge Chhabria provided some relief for plaintiffs, modifying the deadline for written discovery requests to allow their third-party subpoenas to be timely. In a November 26th order, he cited the scheduling order’s ambiguity regarding the deadline for “additional discovery requests.” This is a win for plaintiffs whose path to success seemed in doubt with the inability to take third-party discovery.
4. UMG Recordings v. Uncharted Labs (d/b/a Udio)
Background: This action was brought on June 24, 2024, in the Southern District of New York, by a group of major record companies against the company behind Udio, a generative AI service launched in April 2024 by a team of former researchers from Google Deepmind. Much like Suno below, Udio allows users to create digital music files based on text prompts or audio files. And as with the complaint against Suno (see below), plaintiffs rely on tests comprising targeted prompts including the characteristics of popular sound recordings — such as the decade of release, the topic, genre, and descriptions of the artist. They allege that using these prompts caused Udio's product to generate music files that strongly resembled copyrighted recordings. The claims are for direct infringement and related causes of action. The judge assigned is Judge Alvin K. Hellerstein.
Current Status: Special Master Appointed. On December 5th, Judge Hellerstein issued his order appointing Hon. James C. Francis IV as Special Master. Judge Francis previously spent thirty years as a magistrate judge in the Southern District of New York. The order set out Judge Francis’s tasks as Special Master, including assisting the parties reach agreement as to the disputed provisions of the proposed protective order. Judge Francis was also tasked with helping the parties with settlement efforts. He is set to meet with the parties this week to assist in reaching agreement on the issues mentioned above. We’ll get his first report detailing the progress on January 6th, 2025. Stay tuned!
5. Getty Images v. Midjourney and Stability AI
Background: Getty Images filed this lawsuit against image generator Stability AI on February 2nd, 2023, accusing the company of infringing more than 12 million photographs, their associated captions and metadata, in building and offering Stable Diffusion and DreamStudio. Getty’s claims are similar to those in The New York Times v. Microsoft & OpenAI case above, but here they are in the context of visual images instead of written articles - i.e., unlicensed scraping by their AI with an intent to compete directly with, and profit from, Getty Images (i.e., market substitution). This case also includes trademark infringement allegations arising from the accused technology’s ability to replicate Getty Images’ watermarks in the AI outputs. Getty filed its Second Amended Complaint on July 8th, 2024, and the parties are currently engaged in jurisdictional discovery related to defendants’ motion to transfer the case to the Northern District of California. The judge assigned is Judge Jennifer L. Hall.
Current Status: Getty vents discovery frustrations to the Court. Getty submitted a letter to the court on November 25th explaining its frustration with Stability AI’s refusal to participate in discovery or participate in a Rule 26(f) conference. In August, Stability AI argued that they were under no obligation to commence fact discovery until the court issued its ruling on jurisdiction. That ruling has still not come, so we can assume Stability is sticking with that argument. Getty requested that the court order Stability to stop delaying and proceed with the case. We’ll wait and see how the Court responds.
6. Concord Music Group, et al. v. Anthropic
Background: UMG, Concord Music and several other major music companies sued Amazon-backed OpenAI competitor Anthropic on October 18th, 2023 in the U.S. District Court (Middle District of Tennessee). The music companies assert that Anthropic is infringing their music lyric copyrights on a massive scale by scraping the entire web to train its AI, essentially sucking up their copyrighted lyrics into its vortex – all without any licensing, consent or payment. In its response, Anthropic claimed fair use. The case was transferred to the Northern District of California on June 26th, 2024 and closed in Tennessee. The judge assigned is Judge Eumi K. Lee. The parties have not yet had a case management conference.
Current Status: Concord gets discovery into past and future versions of Anthropic’s AI model. As reported last week, the Court held a hearing on November 21st to discuss the parties’ disputes over discovery related to Anthropic’s AI models. The plaintiffs want access to data regarding both predecessor and upcoming AI models developed by Anthropic. Anthropic claims they have already provided discovery related to several AI models, and the others requested are irrelevant. The Court issued an order on clarifying the definition of “Claude,” Anthropic’s AI model. Magistrate Judge Susan Van Keulen held that predecessor and upcoming Claude models are within the scope of relevance, giving Concord a big discovery win.
7. Raw Story Media & Alternet v. OpenAI
Background: News publishers Raw Story Media and Alternet filed suit against OpenAI and Microsoft on February 28th, 2024 in the Southern District of New York, claiming their articles were used to train the LLM that powers OpenAI’s ChatGPT. Rather than claiming copyright infringement, the plaintiffs alleged one cause of action for violating the DMCA (which is a separate provision of the Copyright Act related to Internet content). The plaintiffs claimed that OpenAI removed the CMI from their articles, which they argue is a violation of the DMCA.
Current Status: Case Dismissed for lack of “standing” (not for the “fair use” ruling we’ve been waiting for). We previously reported that the plaintiffs had requested leave to file an updated complaint. OpenAI requested an extension of time to respond to plaintiff’s request, which the Court granted on November 26th. They now have until December 20th for their response. Stay tuned to see whether the court gives plaintiffs another chance.
8. The Intercept Media v. OpenAI
Background: The Intercept Media, a news publisher represented by the same firm that represents the plaintiffs in the Raw Story Media litigation below, filed suit against OpenAI and Microsoft on February 28th, 2024 in the Southern District of New York, the same day Raw Story Media commenced their suit. Like the Raw Story allegations, The Intercept alleged that their articles were used to train ChatGPT and brought claims for the removal of the copyright management information (“CMI”) from the articles.
Current Status: OpenAI serves its answer. As reported last week, OpenAI’s motion to dismiss was partially granted but The Intercept’s CMI removal claim can proceed. On December 6th, OpenAI filed their answer to The Intercept’s First Amended Complaint. OpenAI presented 10 affirmative defenses, including fair use, several equitable doctrines, statute of limitations, lack of mitigation, and failure to state a claim.
9. Sarah Andersen v. Stability AI
Background: Visual artists filed this putative class action on January 13th, 2023, alleging direct and induced copyright infringement, DMCA violations, false endorsement and trade dress claims based on the creation and functionality of Stability AI’s Stable Diffusion and DreamStudio, Midjourney Inc.’s generative AI tool, and DeviantArt’s DreamUp. On August 12th, 2024, the Court dismissed many of the claims in the plaintiffs’ first amended complaint, leaving the claims for direct copyright infringement, trademark, trade dress, and inducement. The assigned judge is Judge William H. Orrick.
Current Status: No major substantive developments this past week. On November 27th, the parties jointly requested more time to submit an ESI Protocol and Protective Order. The Court granted the request, giving them until December 9th.
10. Dow Jones & Co, et al v. Perplexity AI
Background: On October 21st, 2024 The Wall Street Journal and The New York Post sued generative search company Perplexity AI in the U.S. District Court for the Southern District of New York for copyright infringement and other related claims. A new twist in this litigation is the focus on Retrieval Augmented Generation (“RAG”) AI. RAG GenAI not only uses an LLM trained on copyrighted material to respond to individual prompts, but also goes out to the web to update itself based on the relevant query. Perplexity even said the quiet part out loud, encouraging its users to “skip the links” to the actual sources of the copyrighted content. Based on Perplexity’s RAG model, the media plaintiffs allege that Perplexity is infringing on their copyrights at the input and output stage, sometimes reproducing copyrighted content verbatim. Plaintiffs cited their parent company News Corp’s recent licensing agreement with OpenAI in explaining that GenAI technology can be developed by legitimate means.
Current Status: No major substantive developments this past week. On November 22nd, Judge Failla ordered the parties to appear for an initial pretrial conference on January 14, 2025. The parties must submit a Proposed Civil Case Management Plan and Scheduling Order by Thursday the week prior to the conference. We should get more updates on this case in the coming year.
11. UMG Recordings v. Suno
Background: The RIAA on behalf of the major record labels filed their lawsuit in the federal district Court in Massachusetts on June 24th, 2024, for mass copyright infringement and related claims based on alleged training on their copyrighted works. Suno is a generative AI service that allows users to create digital music files based on text prompts. This is the first case brought against an AI service related to sound recordings. In their answer on August 1st, Suno argued that their actions were protected by fair use. The judge assigned is Chief Judge F. Dennis Saylor, IV.
Current Status: Current Status: No major substantive developments this past week. The parties jointly filed their proposed Protective Order and ESI Protocol on December 6th. This comes after a November 18th hearing, in which the parties presented their positions on the PO and ESI Protocol to the court. This case is still very much in the early stages of discovery.
12. The Center for Investigative Reporting v. OpenAI
Background: The Center for Investigative Reporting, which produces Mother Jones and Reveal, sued Microsoft and OpenAI for essentially the same claims made in The New York Times case above.
Current Status: Motion to consolidate recently granted! Microsoft and OpenAI asked the court to consolidate this case with NY Times v. Microsoft & OpenAI, and — and, as indicated above, the Magistrate granted the motion to consolidate on October 30th (refer to the activity discussed above).
13. The Authors Guild, et al. v. OpenAI
Case Background. The Authors Guild and seventeen individual authors (including John Grisham, George R.R. Martin and Nicholas A. Basbanes) filed a putative class-action suit against OpenAI on September 19th, 2023. The plaintiffs claimed that OpenAI trained its ChatGPT LLM by copying their copyrighted works. The complaint brings claims under 17 U.S.C. §501 for direct, vicarious, and contributory copyright infringement. The case is assigned to Judge Ona T. Wang.
Current Status: No major substantive developments this week. We are still waiting for the court’s decision on discovery consolidation. The case seems to be on ice until then.
14. NEW INTERNATIONAL CASE TRACKED: Canadian News Media Companies v. OpenAI
In a case similar to The New York Times v. OpenAI, Canada’s major news organizations sued OpenAI for copyright infringement on November 28th. Filed in Ontario’s Superior Court of Justice, the news organizations are seeking billions of dollars in compensation for the “ongoing, deliberate, and unauthorized misappropriation of the Plaintiffs’ valuable news media works.” This is the first case of its kind in Canada, and presents a new front against OpenAI, after one was opened in Germany in Gema v. OpenAI as reported last week.
See https://litigate.com/assets/uploads/Canadian-News-Media-Companies-v-OpenAI.pdf
15. INTERNATIONAL CASE TRACKED: GEMA v. OpenAI
GEMA, a German association representing more than 95,000 composers, lyricists and publishers, filed suit in German court accusing OpenAI of reproducing their members’ song lyrics without a license. Gema claims this is a test case to clarify the law in Germany, and that it aims to establish a license model that would compensate music creators whose works are used to train AI models. The details of German copyright law are a bit beyond the scope of this blog, but we did think it noteworthy that the litigation trend is catching on worldwide. While we don’t plan to track this case closely, we will watch for any momentous developments.