The AI Litigation Tracker: Updates on Key Media and Entertainment Generative AI Infringement Cases (as of 11/16/24)
Here are the latest updates on the key generative AI focused copyright infringement-related litigations that impact media & entertainment (as of 11/16/24) — monitored, compiled, updated and tracked in depth by partner Avery Williams and the team at McKool Smith (just voted “Plaintiff Firm of the Year” by The National Law Journal and with the most “Top 100 Verdicts” in U.S.).The most significant developments for the week are listed first.
1. 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 copyright management information (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). No updates since the major news last week of the Court’s dismissal of this case. See the entry below for the impact the dismissal had on the related case, The Intercept Media v. OpenAI.
2. 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 above, 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 from the articles.
Current Status: OpenAI’s motion to dismiss is fully briefed and awaiting the Court’s decision. Given the similar nature between this case and Raw Story Media, OpenAI submitted notice of the Raw Story Media dismissal to the court overseeing this case on November 11th. The Plaintiffs responded by pointing out small differences between the cases and asked that if the Court chose to dismiss this case, it do so without prejudice to allow them to add more claims. We happen to think the Raw Story Media court got it wrong. We’ll see if the Intercept Media court agrees.
3. 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: No major substantive developments this past week. On November 13th, OpenAI updated the Court regarding ongoing disputes over discovery. OpenAI provided statistics relating to the eight new custodians the plaintiffs had requested, demonstrating they collectively have over 170 gigabytes of data, comprising nearly 2 million documents. It also notified the Court that the plaintiffs’ proposed search terms would require OpenAI to review 630,000 documents – significantly more than the 500,000-document limit the Court set at the October 30th hearing. The parties will continue negotiating these issues, with OpenAI hoping to reduce the massive volume of documents requested.
4. 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).
5. 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. Perplexity requested, and was granted, a 45-day extension to file its answer or otherwise respond to the plaintiffs’ complaint. It now has until December 30th, meaning we probably won’t have any updates in this case until at least next month.
6. 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: Discovery fights continue, with several more motions and updates filed this past week. The plaintiffs claim Meta is holding out on several categories of discovery, while Meta claims it has complied with all relevant and timely requests. The parties also submitted an update regarding depositions, indicating that they have completed about one-third of the total depositions, with most of the remaining set to be completed by mid-December. As for Mark Zuckerberg’s much-discussed deposition, the parties requested that it take place four days after the fact discovery cut-off date of December 13th. The Court approved, giving the go-ahead for December 17th.
7. 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: No major substantive developments this past week. The Court scheduled a hearing for November 18th regarding the case schedule. Stay tuned for updates.
8. 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 above, Udio allows users to create digital music files based on text prompts or audio files. And as with the complaint against Suno (see above), 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. A letter filed on November 8th indicated that Judge Hellerstein asked the parties at the November 1st case management conference to identify a mutually agreeable candidate to be appointed Special Master over the case. The parties indicated that they’re close to agreement for the candidate and have received conflict disclosures from two former federal judges. The Court scheduled a hearing for this matter on November 21st. Stay tuned. Special masters can be incredibly helpful when managing discovery-intensive cases. If the parties can agree, a special master should help move this case along.
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. All quiet on the heels of the plaintiffs’ First Amended Complaint. It seems likely that the defendants will take another crack at getting the unjust enrichment claims kicked, but we will have to wait and see.
10. 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. The Court scheduled a hearing for 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 parties will get the chance to plead their case before the Court later this week.
11. 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: Both parties ask to extend discovery. The parties reached an agreement on extending several case deadlines and submitted their proposal to the Court on November 8th. If approved, fact discovery will close six months after the current cut-off date, on July 25th, 2025. Other deadlines for expert reports, Daubert motions, and class certification motions would also be moved back several months. This proposal comes as the parties continue trying to coordinate discovery across several generative AI-related cases, but are encountering delay with cases currently in earlier stages of discovery. Both parties believe an extension of the case schedule will allow them to continue their efforts to coordinate discovery.
12. 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: Still nothing new to report. We continue to wait on Getty’s August 26th request for oral argument on the defendants’ motion to dismiss and motion to transfer. The Court has not ruled on that request, but it should be an interesting hearing if it goes forward.
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: 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.
