1. 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: Summary judgment approaches! Discovery is closed . . . maybe. On January 29th, Judge Chhabria issuing the briefing schedule for the parties’ summary judgment notions. The plaintiffs’ motion for summary judgment is due by March 10th, with Meta’s opposition and its own summary judgment motion due in one brief by March 24th. We’ll keep you updated as they are filed.
On the other hand, it looks like the Court is considering reopening discovery to some extent. As we reported last week, the Court rejected the plaintiffs’ request to extend discovery to investigate their new claims. However, the plaintiffs may get a second chance on a request rejected by Magistrate Judge Hixson earlier in January. In December, the plaintiffs sought to compel Meta to produce certain discovery materials, including torrenting and seeding data, and training datasets for Meta's Llama 4 and 5 models. They also requested that the Court allow them additional time for certain key depositions to question witnesses on evidence submitted by Meta at the end of the discovery period. Judge Hixson denied their requests on January 2nd, but on January 15th, the plaintiffs filed a motion for relief from his order. On January 28th, Judge Chhabria denied the plaintiffs' motion as to some of the issues, but asked Meta to submit a response to two others, regarding reopening the depositions and the crime-fraud exception to attorney-client privilege.
Meta filed its response on January 30th, contending that it diligently completed its document production by the Court-ordered discovery cutoff and that the plaintiffs' claims of an "eleventh-hour document dump" are unfounded. In the meantime, the case continues moving forward.
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 Court grows weary of discovery disputes. On January 24th, Magistrate Judge Wang issued an order for several outstanding motions and issues raised during a January 22nd status conference. The Court denied several motions as premature and directed the parties to meet and confer on various discovery issues, including document production and deposition protocols, with deadlines for joint status letters set for February 13th. Judge Wang expressed frustration with the parties' seeming refusal to work together to resolve what should be routine issues, which has significantly slowed the pace of discovery and hampered the Court's ability to move the cases forward efficiently. The Court emphasized that going forward, any disputes where the parties have not fully attempted to meet and confer should not be brought to the Court’s attention, and any motions filed related to such disputes may be denied outright.
3. 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: Plaintiffs push to depose another Anthropic founder. Plaintiffs moved to compel the deposition of Dario Amodei, who previously served as the vice president of research at OpenAI, until he left in 2021 to start Anthropic. The motion is largely redacted, but plaintiffs accuse Amodei of being involved in allegedly illegal activity related to the sourcing of data to train ChatGPT.
On January 27th, Benjamin Mann, another former OpenAI employee who left to start Anthropic, filed his reply in support of his motion to quash his third-party subpoena. Mann argues that there are many OpenAI witnesses who hold the same information as him, and who should be prioritized over a non-party witness. If the Court permits his deposition, he argues that certain guardrails should be put in place, including disallowing questions about Anthropic. Plaintiffs’ attempts to depose these witnesses shines a light on the connections between two of the most prominent companies researching AI.
4. 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: Dow Jones files its Second Amended Complaint. Dow Jones & Co. filed its second amended complaint on January 28th, including a significant expansion of the jurisdiction and venue section. The new complaint details Perplexity's business registration in New York, its use of real property in Manhattan, and its employment of numerous individuals in New York. With Perplexity expected to file a motion to dismiss or alternatively transfer to the Northern District of California, Dow Jones is trying to cement its arguments in favor of New York jurisdiction. The complaint also highlights Perplexity's marketing activities in New York, including a billboard in Times Square and a Tesla Cybertruck with Perplexity's name parked in Times Square.
5. 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: New case schedule! In the first filing since early December, the parties filed a proposed stipulated source code protocol on January 28th. At a status conference, Judge Saylor accepted the stipulation and agreed to a new case schedule. Discovery requests are due by August 26th, the fact discovery deadline is July 15th, expert disclosures are due by August 26th, and dispositive motions must be submitted by December 5th.
6. 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: No major substantive developments this past week. Last week, Raw Story Media submitted its reply in support of its request for leave to file an amended complaint. They assert that the removal of copyright management information (CMI) by OpenAI constitutes copyright infringement, which is a recognized harm under Article III. With their earlier complaint dismissed in its entirety for lack of standing, this is Raw Story Media’s last chance in this lawsuit.
7. 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: No major substantive developments this past week. As we reported last month, the Special Master was ordered to provide status updates regarding his work with the parties beginning this month. His first report, filed on January 17th, revealed his belief that the parties have been “proceeding cooperatively,” and have reached resolution on many of the previously disputed issues. Since his appointment, the parties have resolved their disagreements as to the ESI protocol, a confidentiality order, and the Source Code protocol. The Special Master indicated he is still assisting the parties on reaching agreement regarding the protocol for examining data used to train the defendant’s AI models. The Court endorsed the Special Master’s report on January 21st, with Judge Hellerstein expressing his gratitude for the Special Master’s accomplishments.
8. 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: No major substantive developments this past week. Last week, the parties jointly filed a stipulated protective order, which the Court accepted on January 27th. This comes on the heels of last week’s joint stipulation on injunctive relief, requiring Anthropic to “maintain its already-implemented guardrails” that seek to prevent infringing outputs of copyrighted content in its current AI models. Still at issue is whether Anthropic should be forced to refrain from using unauthorized copies of Plaintiffs’ lyrics to train future AI models. We are still waiting for a ruling after the December 19 motion-to-dismiss hearing.
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. A hearing was previously set for December 17th regarding the parties’ jointly filed Case Management Report, which mostly featured disagreements regarding the Second Amended Complaint and minor discovery disputes. The Court reset the hearing for May 6th, 2025. No word yet on why such a significant delay.
10. 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: All quiet on the Getty front. Still no update for Getty. Reading between the lines, Stability may be stonewalling until the court issues a jurisdictional ruling. The last update was Getty’s November 25th letter to the Court 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.
11. 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: No major substantive developments this past week. Nothing new since OpenAI filed their answer to The Intercept’s First Amended Complaint on December 6th. OpenAI presented 10 affirmative defenses, including fair use, several equitable doctrines, statute of limitations, lack of mitigation, and failure to state a claim.
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. 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.